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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of
August 1, 1999, between XXXXXX XXXXXXXX PUBLIC LIMITED COMPANY., a public
limited company organized under the laws of Ireland (the "Company"), and Xxxxx
X. Xxxxxxxxxxxxx ("Executive").
RECITALS
WHEREAS Executive is currently employed by the Company as its
Chief Operating Officer and President; and
WHEREAS Executive and the Company are parties to a previous
Employment Agreement, dated March 3, 1997, which is hereby superseded and
replaced by this Agreement.
NOW THEREFORE in consideration of the promises and mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT.
(a) The Company hereby agrees to continue to employ Executive
as its Chief Operating Officer and President to render full time services to the
Company and to perform such other duties commensurate with such office. During
his employment hereunder, Executive shall report to the Chief Executive Officer
of the Company.
(b) Executive hereby accepts such employment and agrees to
render the services described above to the best of his abilities in a diligent,
trustworthy, businesslike and efficient manner. It shall not be a violation of
this Agreement for Executive to serve on corporate, civic or charitable boards
or committees so long as such activities do not significantly interfere with
Executive's commitment to work in accordance with this Agreement.
(c) The duties to be performed by Executive hereunder shall be
performed primarily at the U.S. office of the Company at Rockaway Corporate
Center, 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxxxx 00000, subject to
reasonable travel requirements on behalf of the Company.
2. TERM OF EMPLOYMENT. The employment period of Executive by
the Company shall commence on or before August 1, 1999 and end on December 31,
2002 (the "Initial Term") unless further extended or sooner terminated as
hereinafter provided. Executive may terminate his employment during the Initial
Term with two months written notice to the Company. Commencing on December 31,
2002, and each December 31 thereafter, the term of Executive's
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employment shall automatically be extended for one additional year to,
respectively, December 31, 2003, and each December 31 thereafter, unless, not
later than two months prior to the end of any renewal term, either party
hereunder shall have given notice to the other party that it does not wish to
extend this Agreement. If the Company gives Executive notice that it does not
wish to extend this Agreement during the Initial Term or any renewal term,
Executive shall be entitled to the severance payments provided in Section 4(d)
hereof. As used herein the "Employment Period" shall refer to the Initial Term
and any renewal term of Executive's employment with the Company.
3. BASE SALARY AND BENEFITS.
(a) During the Employment Period, Executive's base salary
shall be $260,000 per annum (the "Base Salary"). The Base Salary shall be
subject to adjustment from time to time in accordance with the compensation
policies and practices of the Company; however, in no case shall Executive's
salary be reduced below $260,000 per annum. The Base Salary shall be payable in
regular installments in accordance with the Company's general payroll practices
and shall be subject to customary withholding.
(b) The Company shall reimburse Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses. The
parties agree that such expenses shall include, by way of example and not
limitation, cellular telephone service and home fax machine and telephone line.
(c) Executive shall be entitled to participate, on a basis
comparable to other key executives of the Company, in any benefit plan,
incentive compensation plan, or program of the Company for which key executives
are or shall become eligible, including, without limitation, pension, 401(k),
life and disability insurance and stock benefits and/or plans.
(d) In addition to the Base Salary, Executive shall be
eligible to receive an annual cash bonus in a target amount equal to 50% of his
then current Base Salary. Such bonus shall be provided on such terms and in such
amounts, if any, as the Company may deem appropriate in its sole discretion.
(e) Executive may be awarded, from time to time, additional
compensation (such as warrants, stock options, stock appreciation rights,
performance shares, restricted stock or unrestricted stock) pursuant to the
Company's Incentive Share Option Scheme ("ISOS") or any additional or
replacement incentive compensation program established for the key employees of
the Company. Any awards under such programs shall be at such levels or in such
amounts as the Board of Directors deems, in its sole discretion, appropriate for
the position occupied by Executive and his performance therein.
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(f) Executive shall be entitled to vacation time with
compensation of 20 days per annum. Executive shall also be entitled to all paid
holidays given by the Company to its key officers.
(g) There shall be no material reduction or diminution of the
benefits provided in this Section 3, (i) unless Executive shall have given his
prior written consent to such reduction or diminution and an equitable
arrangement (embodied in an ongoing substitute or alternative benefit or plan)
has been made with respect to such benefit or plan or (ii) except, in the case
of Section 3(c), for across the board benefit reductions similarly affecting all
senior management personnel of the Company.
4. TERMINATION AND CHANGE OF CONTROL
(a) If the Executive shall die during the Employment Period,
this Agreement shall terminate effective as of the date of Executive's death,
except that Executive's surviving spouse or, if none, his estate, shall be
entitled to receive the benefits set forth in Section 4(d) below.
(b) At the sole discretion of the Board of Directors,
Executive may be terminated if the Executive is disabled (as defined below) and
shall have been absent from his duties with the Company on a full time basis for
one hundred and eighty (180) consecutive days, and, within thirty (30) days
after written notice by the Company to do so, the Executive shall not have
returned to the performance of his duties hereunder on a full time basis. In the
event of such termination, the Company shall make to Executive the payments
specified in Section 4(d). As used herein, the term "disabled" shall (i) mean
that Executive is unable, as a result of a medically determinable physical or
mental impairment, to perform the duties and services of his position, or (ii)
have the meaning specified in any disability insurance policy maintained by the
Company, whichever is more favorable to the Executive.
(c) The Company may, by notice to Executive, terminate
Executive's employment hereunder for cause. As used herein, "cause" shall mean
(i) the conviction of Executive of a felony or conviction of a misdemeanor if
such misdemeanor involves moral turpitude; or (ii) Executive's voluntary
engagement in conduct constituting larceny, embezzlement, conversion or any
other act involving the misappropriation of Company funds in the course of his
employment; or (iii) the willful refusal to carry out specific directions of the
Board of Directors, which directions shall be consistent with the provisions
hereof; or (iv) Executive's committing any act of gross negligence or
intentional misconduct in the performance or non-performance of his duties as an
employee of the Company; or (v) any material breach by the Executive of any
material provision of this Agreement (other than for reasons related only to the
business performance of the Company or business results achieved by Executive).
For purposes of this Section 4(c), no act or failure to act on Executive's part
shall be considered to be reason for termination for cause if done, or omitted
to be done, by Executive in good faith and with the reasonable belief that the
action or omission was in the best interests of the Company. Upon the
termination of Executive's employment for cause,
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the Company shall pay to Executive (x) his Base Salary accrued through the
effective date of termination, payable at the time such payment is otherwise due
and payable hereunder, and (y) all other amounts and benefits to which Executive
is entitled, including, without limitation, vacation pay and expense
reimbursement amounts accrued to the effective date of termination and amounts
and benefits owing under the terms of any benefit plan of the Company in which
Executive participates.
(d) Executive's employment may be terminated at any time by
the Company without cause; provided, however, that in such event Executive shall
be entitled to receive (so long as he executes and delivers the Company's
standard form of release) an amount equal to Executive's then current Base
Salary for a period of eighteen months plus all other amounts and benefits to
which Executive is entitled, including without limitation, expense reimbursement
amounts accrued to the effective date of termination and amounts and benefits
owing under the terms of any benefit plan of the Company in which Executive
participates. The foregoing amounts shall be payable in one lump sum payment
within ten (10) days after Executive's last day of active employment. In
addition, Executive shall be entitled to continue participation in the Company's
health and other welfare benefit plans, at the Company's expense, for a period
of up to eighteen months or until Executive is covered by a successor employer's
benefit plans, whichever is sooner.
(e) If (i) Executive's employment is terminated pursuant to
subsections (a), (b), (d), (e) or (g)(A) of this Section 4; or (ii) a "Change in
Control" of the Company (as defined in Section 4(f) below) occurs; in either
case, all stock options, restricted stock, warrants, deferred compensation and
similar benefits which have not yet become vested on the date of termination or
the date of a Change in Control, as the case shall be, will become vested upon
such event, and Executive shall be permitted to exercise all such rights in the
one-hundred eighty day period immediately following Executive's date of
termination (or such longer date as determined in good faith by the Company in
the event securities laws prevent exercise of such rights in such period), and
in the case of a Change of Control, whether or not Executive remains employed
with the Company or terminates his employment in accordance with this subsection
(e). If a Change in Control event involves a tender offer for all or part of the
Company's shares, the vesting date for stock options and restricted stock
pursuant to this subsection (e) shall be a date which permits Executive to
participate in such tender offer with such stock options or restricted shares.
In addition, if a Change in Control occurs, Executive may, after such Change in
Control, terminate his employment with the Company for any reason after the
expiry of sixty (60) days immediately following the effective date of such
Change in Control, in which event Executive shall be entitled to the payments
specified in Section 4(d) above and to the other rights described elsewhere in
this Agreement.
(f) For purposes of this Agreement, a "Change in Control" of
the Company shall be deemed to have occurred if: (i) any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities and Exchange Act of 1934)
becomes the beneficial owner, directly or indirectly, of Company securities
representing 30% or more of the capital stock of the Company; or (ii)
individuals who constitute the Company's Board of Directors as of the date of
this Agreement (the
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"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided, however, that any person becoming a director subsequent to
the date of this Agreement whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least 51% of the directors
comprising the Incumbent Board (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for
director, without objection to such nomination) shall be, for the purpose of
this clause (ii), considered as though such person were a member of the
Incumbent Board; or (iii) the Company's shareholders approve a merger or
consolidation (where in either case the Company is not the survivor thereof) in
which shareholders of the Company cease to own at least 51% of the surviving
entity's voting power, or a sale or disposition of all or substantially all of
the Company's assets or a plan of partial or complete liquidation of the
Company. Notwithstanding the foregoing, a "Change in Control" shall not include
events whereby any of Elan Corporation plc, Dominion Income Management Corp.,
Halisol S.A., AIG Global Investment Corp., Xxxxxxx Xxxxx & Co., Paribas Sante
SA, Xxxxxxx Company or Xxxxxx-Xxxxxxx Company becomes the beneficial owner of
Company securities representing 30% or more of the capital stock of the Company.
(g) Executive's employment may be terminated by the Executive,
(A) for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean: (x) the assignment to Executive of any
duties inconsistent in any respect with Executive's
position (including status, offices, titles, and reporting
requirements), authority, duties or responsibilities as
contemplated by Section 1(a) hereof, or any other action
by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice
thereof given by Executive; (y) any failure by the Company
to comply with any of the provisions of Section 3 hereof,
other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied
by the Company promptly after receipt of notice thereof
given by Executive; (z) the Company's requiring Executive
to be based at any office or location other than as
provided in Section 1(c) hereof; (xx) any purported
termination by the Company of Executive's employment
otherwise than as expressly permitted by this Agreement;
or (yy) any failure by the Company to obtain an express
assumption of this Agreement by a successor as required
pursuant to Section 15 hereof. Upon any termination
pursuant to this subsection (g), Executive shall be
entitled to the payment specified in Section 4(d) hereof
and to the other rights described therein (subject to his
compliance therewith).
(B) by resignation or retirement. If Executive resigns or
retires, this Agreement shall terminate as of the
effective date of Executive's retirement or resignation
and thereupon Executive shall be entitled solely to the
payments and benefits set forth in Sections 4(c) and (l)
hereof.
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(h) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of Executive (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise, but determined without regard to any additional payments required
under this subsection (h)) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (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"), the Company shall
pay to Executive at the time specified in subparagraph (k) below an additional
amount (a "Gross-Up Payment") such that the net amount of the Gross-Up Payment
retained by Executive, after deduction of all federal, state and local income
tax (and any interest and penalties imposed with respect thereto), employment
tax and Excise Tax on the Gross-Up Payment, shall be equal to the amount of the
Excise Tax imposed on such Payment.
(i) For purposes of the foregoing subparagraph (h), the proper
amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined
in the first instance by the Company. Such determination by the Company shall be
communicated in writing by the Company to Executive at least fourteen (14) days
prior to the occurrence of a Change of Control. Within ten (10) days of being
provided with written notice of any such determination, Executive may provide
written notice to the Chairperson of the Compensation Committee of the Board of
Directors of the Company of any disagreement, in which event the amounts, if
any, of the Excise Tax and the Gross-Up Payment shall be determined by tax
counsel mutually selected by the Company and Executive. The determination of the
Company (or in the event of disagreement, the tax counsel selected) shall be
final and nonreviewable.
(j) For purposes of determining whether any of the Payments
will be subject to the Excise Tax and the amount of such Excise Tax under
subparagraph (h), the following principles will be applicable:
(A) Any payments or benefits received or to be received by
Executive in connection with a termination of employment
shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the
Excise Tax unless in the opinion of tax counsel mutually
selected by the parties pursuant to subsection (i) above,
such other payments or benefits (in whole or in part) do
not constitute parachute payments, or such excess
parachute payments (in whole or in part) represents
reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code in
excess of the base amount within the meaning of Section
280G(b)(3) of the Code; and
(B) The value of any non-cash benefits or any deferred payment
or benefit shall be determined in accordance with Section
280G(d)(3) and (4) of the Code. For
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purposes of determining the amount of the Gross-Up
Payment, Executive shall be deemed to pay federal income
taxes at the highest marginal rate of tax in the calendar
year in which the Gross-Up Payment is to be made and state
and local income taxes at the highest marginal rate of tax
in the state and locality of Executive's residence on the
date of termination, net of the maximum reduction in
federal income taxes which could be obtained from
deduction of such state and local taxes.
(k) The Payments provided for in subparagraph (h) shall be
made in a cash, lump-sum payment, net of any required tax withholdings, upon the
later of (i) the fifth business day following the effective date of termination,
or (ii) the calculation of the amount of the Gross-Up Payment under subparagraph
(i). Any Payment required hereunder that is not made in a timely manner shall
bear interest at a rate equal to the prime rate quoted on the date the payment
is first overdue by Citibank N.A., New York, New York plus two percent until
paid.
(l) Amounts which are vested benefits or which Executive is
otherwise entitled to receive under any plan, policy, practice or program of or
in any contract or agreement with the Company or any of its affiliated companies
at or subsequent to the date of termination of Executive's employment for any
reason shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
5. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and agrees that the information,
observations and data obtained by him while employed by the Company and its
subsidiaries concerning the business or affairs of the Company or any other
subsidiary ("Confidential Information") are the property of the Company or such
subsidiary. Therefore, Executive agrees to keep secret and retain in the
strictest confidence all Confidential Information, including without limitation,
trade "know-how" secrets, customer lists, pricing policies, operational methods,
technical processes, formulae, inventions and research projects and other
business affairs of the Company, learned by him prior to or after the date of
this Agreement, and not to disclose them to anyone outside the Company, either
during or after his employment with the Company, except (i) in the course of
performing his duties hereunder; (ii) with the Company's express written
consent; (iii) to the extent that the Confidential Information becomes generally
known to and available for use by the public other than as a result of
Executive's acts or omissions; or (iv) where required to be disclosed by court
order, subpoena or other government process. If Executive shall be required to
make disclosure pursuant to the provisions of clause (iv) of the preceding
sentence, Executive promptly, but in no event more than 48 hours after learning
of such subpoena, court order or other governmental process, shall notify the
Company, by personal delivery or fax (pursuant to Section 10 hereof), and, at
the Company's expense, shall take all reasonably necessary steps requested by
the Company to defend against the
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enforcement of such subpoena, court order or other governmental process and
permit the Company to intervene and participate with counsel of its own choice
in any related proceeding.
(b) Executive shall deliver to the Company at the termination
of his employment, or at any other time the Company may request, all memoranda,
notes, plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product (as defined below) or the business of the Company or
any subsidiary which he may then possess or have under his control.
6. INVENTIONS AND PATENTS. Executive acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) which relate to the Company's or any of its subsidiaries' actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive while employed
by the Company or its predecessor and its subsidiaries ("Work Product") belong
to the Company or such subsidiary. Executive shall promptly disclose such Work
Product to the Board and perform all actions reasonably requested by the Board
(whether during or after his employment) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
7. INDEMNIFICATION. The Company will indemnify Executive and
his legal representatives, to the fullest extent permitted by the laws of the
State of New Jersey and the existing by-laws of the Company or any other
applicable laws or the provisions of any other corporate document of the
Company, and Executive shall be entitled to the protection of any insurance
policies the Company may elect to obtain generally for the benefit of its
directors and officers, against all costs, charges and expenses whatsoever
incurred or sustained by him or his legal representatives in connection with any
action, suit or proceeding to which he or his legal representatives may be made
a party by reason of him being or having been a director or officer of the
Company or of any of its subsidiaries or affiliates or actions taken purportedly
on behalf of the Company or of any of its subsidiaries or affiliates. The
Company shall advance to Executive the amount of his expenses incurred in
connection with any proceeding relating to such service or function to the
fullest extent legally permissible under New Jersey law. The indemnification and
expense reimbursement obligations of the Company in this Section 7 will continue
as to Executive after he ceases to be an officer of the Company and shall inure
to the benefit of his heirs, executors and administrators. The Company shall
not, without Executive's written consent, cause or permit any amendment of the
Company's governing documents which would affect Executive's rights to
indemnification and expense reimbursement thereunder.
8. NON-COMPETE, NON-SOLICITATION. Subject to Section 1(b)
hereof, Executive covenants and agrees that, during the Employment Period and
for a period of six months thereafter so long as he has been paid under Section
4(d) above,
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(a) Executive shall not, directly or indirectly, as an
employee, director, officer, shareholder, partner, advisor,
consultant or otherwise, engage in any commercial activity or
participate in any venture of any kind that directly competes
with the Company with respect to the development, marketing,
testing, manufacture or delivery of substantially similar
pharmaceutical products within the United States. Nothing
herein shall prohibit Executive from holding less than 5% of
the outstanding stock of any corporation required to file
periodic reports with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, and the
securities of which are listed on any securities exchange or
quoted on the NASDAQ National Market or traded on the
over-the-counter market.
(c) Executive shall not, directly or indirectly, through
another entity (i) induce or attempt to induce any employee or
director of the Company or any subsidiary to leave the employ
or board of the Company or such subsidiary, or in any way
interfere with the relationship between the Company or any
subsidiary and any employee or director thereof (ii) induce or
attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company or any
subsidiary to cease doing business with the Company or such
subsidiary, or in any way interfere with the relationship
between any such customer, supplier, licensee or business
relation and the Company or any subsidiary (including, without
limitation, making any negative statements or communications
about the Company or its subsidiaries).
(d) If, at the time of enforcement of this Section 8, a court
shall hold that the duration, scope or area restrictions
stated herein are unreasonable under circumstances then
existing, the parties agree that the maximum duration, scope
or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that
the court shall be allowed to revise the restrictions
contained herein to cover the maximum period, scope and area
permitted by law. Executive agrees that the restrictions
contained in this Section 8 are reasonable.
(e) In the event of the breach or a threatened breach by
Executive of any of the provisions of this Section 8, the
Company, in addition and supplementary to other rights and
remedies existing in its favor, may apply to any court of law
or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof (without
posting
9. EXECUTIVE'S REPRESENTATIONS. Executive hereby represents
and warrants to the Company that (i) the execution, delivery and performance of
this Agreement by Executive do not and shall not conflict with, breach, violate
or cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, and (ii) upon the
execution and delivery of this Agreement by the parties, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive
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hereby acknowledges and represents that he has had the opportunity to consult
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
10. NOTICES. Any notice provided for in this Agreement shall
be in writing and shall be deemed to have been duly given if delivered
personally with receipt acknowledged or sent by registered or certified mail or
equivalent, if available, postage prepaid, or by fax (which shall be confirmed
by a writing sent by registered or certified mail or equivalent on the same day
that such fax was sent), addressed to the parties at the following addresses or
to such other address as such party shall hereafter specify by notice to the
other:
Notices to Executive: Xxxxx X. Xxxxxxxxxxxxx
0 Xxxxx Xxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
(000) 000-0000 (Phone)
Notices to the Company: Xxxxxx Xxxxxxxx plc
Rockaway 80 Corporate Center
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
(000) 000-0000 (Phone)
(000) 000-0000 (Fax)
Attention: General Counsel
11. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. COMPLETE AGREEMENT. This Agreement constitutes the
complete agreement and understanding among the parties and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
13. NO STRICT CONSTRUCTION. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party.
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14. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
15. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the Company. The Company will require any successor to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
16. CHOICE OF LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of New Jersey without giving effect to any choice of
law or conflict of law rules or provisions that would cause the application of
the laws of any jurisdiction other than the State of New Jersey.
17. AMENDMENT AND WAIVER. The provisions of this Agreement may
be amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
18. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, the making, interpretation or the breach thereof,
other than (a) a claim solely for injunctive relief for any alleged breach of
the provisions of Sections 5 and/or 8 as to which the parties shall have the
right to apply for specific performance to any court having equity jurisdiction;
and (b) the determination of Excise Tax and Gross-Up Payment pursuant to Section
4 herein; shall be settled by arbitration in New York City by one arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and judgement upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof and any party to the
arbitration may, if he elects, institute proceedings in any court having
jurisdiction for the specific performance of any such award. The powers of the
arbitrator shall include, but not be limited to, the awarding of injunctive
relief.
19. LEGAL FEES AND EXPENSES. The Company agrees to pay, as
incurred, to the full extent permitted by law, all reasonable legal fees and
expenses which Executive may reasonably incur as a result of (a) review and/or
any claims made regarding the Company's determination of Excise Tax and Gross-Up
Amount pursuant to Section 4 herein, or (b) any contest brought in good faith
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity, or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by Executive about the amount of any
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payment pursuant to this Agreement), plus in each case interest on any delayed
payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of
the Code.
20. NO MITIGATION OR SET-OFF. The provisions of this Agreement
are not intended to, nor shall they be construed to require that Executive
mitigate the amount of any payment provided for in this Agreement by seeking or
accepting other employment, nor shall the amount of any payment provided for in
this Agreement be reduced by any compensation earned by Executive as a result of
his employment by another employer or otherwise. The Company's obligations to
make the payments to Executive required under this Agreement, and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action that the
Company may have against Executive.
21. TAX WITHHOLDING. The parties agree to treat all amounts
paid to Executive hereunder as compensation for services. Accordingly, the
Company may withhold from any amount payable under this Agreement such Federal,
state or local taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
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Execution Copy
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
XXXXXX XXXXXXXX PLC
/s/ XXXXXX XXXXXXX
----------------------------
NAME: XXXXXX XXXXXXX
TITLE: DIRECTOR, MEMBER OF COMPENSATION
COMMITTEE
/s/ XXXXX X. XXXXXXXXXXXXX
-----------------------------
XXXXX X. XXXXXXXXXXXXX
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