EXHIBIT 10.1.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made effective as of the 29th day of October, 1999,
entered into by and between Orphan Medical, Inc., a Minnesota Corporation (the
"Company") and Xxxx Xxxxxx Bullion of Hennepin County, Minnesota, (hereinafter
called "Employee").
WHEREAS, the Company desires to employ the Employee as its Chairman and
Chief Executive Officer (CEO) of the Company, in accordance with the following
terms, conditions and provisions; and
WHEREAS, the Employee desires to perform such services for the Company,
all in accordance with the following terms, conditions and provisions;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
1. EMPLOYMENT AND DUTIES.
The Company hereby continues Employee's employment, and Employee hereby
accepts and agrees to serve the Company as the Chairman and the Company's CEO,
consistent with the job description for this position, and with duties subject
to review and modification from time to time at the direction of the Company's
Board of Directors (the "Board"). The Employee shall remain a member of the
Company's Board of Directors, subject to election by the shareholders of the
Company. The Employee shall apply his best efforts and devote substantially all
of his professional and business time and attention to the Company's affairs and
shall not, directly or indirectly, actively engage in or concern himself with
any other activities or commitments which interfere with the performance of his
duties hereunder or which, even if non-infering, may be contrary to the best
interests of the Company.
2. TERM.
The term of this Agreement and Employee's employment under this
Agreement shall commence on October 20, 1999, and shall continue thereafter for
a period of three years. Upon the expiration of the original term of this
Agreement, this Agreement shall automatically renew for successive two-year
terms, subject to termination as provided in Section 7.
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3. COMPENSATION.
The Company shall compensate the Employee for his services at the
following salary, bonus, and benefits:
A. Base Salary
The Employee shall be paid a base annual salary of
One Hundred Eighty Thousand dollars ($180,000) for the
calendar year 2000 and $200,000 for the calendar year 2001
payable on the Company's normal payroll cycle. The Employee's
salary in November and December of 1999 will be adjusted for
these two months to the 2000 level. The base salary for 2000
and 2001 is the minimum salary for those respective years, and
$200,000 is the minimum salary during the balance of this
agreement in year 2001 and beyond. The base salary may be
increased from time to time at the discretion of the Board of
Directors. Employee shall receive an annual performance
review, and, contingent upon satisfactory review results,
shall be eligible for an increase of such base salary at the
direction of the Board of Directors.
B. Bonus.
The Employee shall continue to participate in a
Company Management Incentive Plan, as approved and amended by
the Board of Directors from time to time, and which is
designed to deliver an annual bonus consistent with current
levels established for this position by the Board of
Directors. Employee shall periodically meet with the Board of
Directors, to establish quantitative and qualitative
initiatives and objectives for the purpose of assessing the
amount of bonus to be paid to Employee at the end of the
associated bonus period.
C. Withholding Taxes.
The Employee agrees that the Company shall withhold
from any and all payments required to be made to the Employee
pursuant to this Agreement all federal, state, local, and/or
other taxes which the Company determines are required to be
withheld in accordance with applicable statues and/or
regulations from time to time in effect.
C. Stock Options.
The Employee shall be eligible to participate in the
annual grant of the Company's Stock Option Plan, consistent
with its terms and conditions, and with amounts of options,
including exercise price and vesting provisions determined by
the Board of Directors from time to time. Provisions under
this item 3C, stock options, are also subject to the
provisions found in Section 7, under Termination of agreement.
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D. Employee Benefits Plans.
The Employee shall be entitled to participate in any
and all Company Employee benefit plans, in accordance with the
eligibility requirements and other terms and provisions of
such plan or plans. Additionally, so long as the Employee is
insurable via normal standards, the Company shall pay the
insurance premium for disability insurance coverage which
shall provide the Employee with a benefit upon total
disability equal to sixty-five percent (65%) of the Employee's
base salary payable to age 65. In the event that Employee
elects to pay the premiums for such coverage himself, the
Employee's annual base salary shall be increased by an amount
equal to the amount of such premiums, plus an additional
amount calculated to cover the Employee's additional income
taxes resulting from such incease.
E. Insurance.
The Employee agrees that the Company, at the
discretion of its Board of Directors, may apply for and
procure on its own behalf, life insurance on the life of the
Employee, for the purpose of protecting the Company against
loss caused by the death of the Employee (commonly referred to
as "Key" insurance). Employee agrees to cooperate and submit
to medical examination, and to execute or deliver any
documentation reasonably required by the Company's insurer in
order to effectuate such insurance.
4. VACATION AND TIME OFF.
The Employee shall be entitled to four weeks of paid vacation in each
year of employment under the terms of this Agreement, without reduction of
salary. Unused vacation time may be carried over to future years of employment,
consistent with Company policy affecting use of Employee vacation time. In
addition, Employee shall be entitled to such additional time off from work,
without loss of compensation, for attendance at professional meetings,
conventions, approved "other business activities", as per Section 12, and
educational courses in accordance with the Company's general policies in this
regard, and as from time to time determined by its Board of Directors.
5. EXPENSES.
The Company will reimburse Employee for reasonable expenses incurred by
the Employee in connection with the business of the Company, according to
policies promulgated from time to time by the Board of Directors, and upon
presentation by Employee of appropriate substantiation for such expenses.
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6. DISABILITY.
Not withstanding any other provision of this Agreement, if Employee is
totally disabled, as defined below, for an aggregate of 180 calendar days in any
one calendar year of employment, the company shall not be obligated to pay
Employee the compensation provided in this Agreement for any period of total
disability during such year in excess of 120 days. In such event, Employee's
salary under Section 3 shall be prorated for such year of employment in the same
manner as if this Agreement had been terminated at the end of such 120th day.
The Company agrees that, while on disability leave of absence, and for
the duration of such disability, Employee may continue to receive Employer's
group insurance plan coverage by compliance with the provisions of the
Consolidated Omnibus Budget Reconciliation Act ("COBRA"), until the end of such
disability leave, or upon attainment of the age of 65, whichever is earlier.
Employee is responsible for any COBRA insurance plan or policy premium.
For purposes of this Agreement, Employee shall be considered to be
totally disabled when he is considered to be as such by any insurance company
used by the Company to provide disability benefits for the Employee, and
Employee shall continue to be considered totally disabled until such insurance
company ceases to recognize him as totally disabled for purposes of disability
benefits. If no such disability policies are in effect for the benefit of the
Employee or for any reason an insurance company fails to make a determination of
the question of whether Employee is totally disabled, Employee shall be
considered to be totally disabled if, because of mental or physical illness or
other cause, he is unable to perform the majority of his usual duties on behalf
of the Company. The existence of a total disability of the Employee, the date it
commenced, and the date it ceases, shall be determined by the Board of Directors
and the Employee, under these circumstances. If the parties cannot agree on the
foregoing questions of disability, then any such determination shall be made
after examination of Employee by medical doctor selected by the Board of
Directors, and a medical doctor selected by the Employee. If the medical doctors
so selected cannot agree on the foregoing questions of disability, a third
medical doctor shall be selected by the two and the opinion of a majority of all
three shall be binding.
7. TERMINATION.
This Agreement shall terminate upon the occurrence of any of the
following:
A. Mutual agreement, in writing, of the parties to terminate;
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B. Employee's death. Under circumstance of Employee's death,
Company agrees to make termination payments to Employee's designated
beneficiaries, in the amount of one year of base salary, and annual
bonus payment for bonus payable in the fiscal year in which Employee's
death occurred. Additionally, any unexercised, vested stock options
which were available to Employee immediately prior to date of death
shall be exercisable by beneficiaries in accordance with the Company's
stock option plan. In addition, Employee's designated beneficiaries
may, at their option, continue to pay and to receive insurance coverage
under the COBRA provisions, and beyond, for a period of up to two years
following death, or upon attainment of age 65 of beneficiary, whichever
is earlier;
C. Upon the expiration of the initial or any renewal term of
this Agreement, following 120 days of written notice by one party to
the other indicating the party's intention not to renew (however,
Termination Payments pursuant to Section G of this agreement, shall not
be less than 12 months);
D. At the Company's option, if Employee shall be totally
disabled, as defined above for a continuous period in excess of nine
months. The Company's option to terminate in such event shall be
exercised upon at least 30 days written notice to Employee;
E. Termination by the Company for cause.
For purposes of this provision of this Agreement,
"Cause" shall mean termination by the Company of
Employee's employment based upon:
(i) The willful and continued failure by
Employee substantially to perform his duties
and obligations (other than any such failure
resulting from his incapacity due to
physical or mental illness), or
(ii) The willful misconduct of Employee which is
materially injurious to the Company or any
of its subsidiaries, monetarily or
otherwise.
For purposes of this paragraph, an act, or failure to
act, shall be considered "willful" if done, or
omitted to be done, by Employee in bad faith and
without reasonable belief that the action or omission
was in the best interests of the Company.
(iii) "Cause" shall mean termination by the
Company of Employee's employment based upon
(a) the willful and continued failure by
Employee substantially to perform his duties
and obligations (other than any such failure
resulting
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from his incapacity due to physical or
mental illness) or (b) the willful
misconduct of Employee which is materially
injurious to the Company or any of its
subsidiaries, monetarily or otherwise. For
purposes of this paragraph, an act, or
failure to act, shall be considered
"willful" if done, or omitted to be done, by
Employee in bad faith and without reasonable
belief that the action or omission was in
the best interests of the Company.
F. Change of employment or termination without cause by the
Company.
A Change in employment shall be deemed to have
occurred if, without Employee's consent,
1. Employee's position, duties, or title are
materially and adversely changed without cause; or
2. At the option of either party, without cause, by
one year's advance notice to the other party; or
3. The location of performance of most of Employee's
duties is moved from the general geographic location
in which Employee performed such duties prior to the
move.
The effective date of a change in employment shall be the date
Employee elects, by written notice to the Company, to treat such action
as termination due to change in employment, provided it occurs within
90 days of the date Employee is notified of the change in employment.
Failure to treat a particular change in employment as a termination of
employment shall not preclude Employee from treating a subsequent
change of employment as a termination of employment.
G. Termination without good cause and termination payments.
In the event Employee's employment with the Company
is terminated without cause, or a change in employment occurs
and Employee elects to treat the change in employment as a
termination of employment and so notifies the Company of such
election within 90 days following the change of employment
(with a date of notice to be deemed the effective date of
termination) or the geographic location changes as defined
above, or upon non-renewal of this agreement by the Company,
then:
(a) Employee shall receive payment equal to 12 months
of Employee's then current annualized salary; plus
the
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average of any bonus or incentive compensation paid
or payable for the most recent two fiscal years, or
other period generally used by the Company to
determine such bonus or incentive compensation, and
at Employee's election, may pay out such salary and
bonus or incentives over a period of one year
consistent with the Company's routine Employee
payment schedules, or in a lump sum; and all unvested
stock options held by Employee shall immediately
vest. The Employee shall also be paid any accrued
vacation pay to the date of such termination and any
accrued sick leave or unpaid expense reimbursements
that may be then due.
(b) Employee shall be entitled to continue
participation in the healthcare coverage, life
insurance and general Employee benefit plans of the
Company. The Company shall for two years following
the effective date of the termination under this
Section 7G, or until Employee becomes eligible for
such insurance coverages with another employer,
continue to provide such coverage for Employee and
his dependents to the same extent and cost the
Company is then providing for other Employees with
comparable coverage during this two year period.
Following this period of time, Employee will be
eligible for COBRA extension of benefits permissible
by law.
(c) In the event of a termination of employment under
this Section 7G, the Company agrees that in the event
of a dispute by the Employee over any terms or
provisions contained in this agreement, or
interpretation thereof, the Company will pay all
reasonable legal expenses incurred by Employee as a
result of Employee's efforts to resolve the dispute.
H. Termination without good cause prior to change of control
In the event that the Employee's employment shall be
terminated without Good Cause in anticipation of a Change of
Control, it being agreed that any such termination which shall
take place within 120 days of the effective date of such
Change of Control shall be conclusively deemed for purposes of
this paragraph to be termination in anticipation of such
Change of Control then and in such event, the Employee shall
be entitled to receive for the period of two (2) years
following such termination his base salary at the rate in
effect on the date of such termination of employment, payable
in equal installments in the same amounts and in the same
periodic intervals as his base salary was paid immediately
prior to such termination. Additionally, during such two-year
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period, the Employee shall be entitled to continue to receive
each of the Employee benefits specified in Section 3D. hereof.
The Employee shall also be paid any accrued vacation pay to
the date of such termination, and any accrued sick leave or
unpaid expense reimbursements that may then be due. In the
event that the Employee shall obtain other full-time
employment during such two year period, the amount of the
Employee's base salary and benefits actually received by him
during such two year period shall be credited against the
Company's obligation to provide the termination payments and
continued benefits provided for in this paragraph (it being
agreed that any payments or benefits received by the Employee
for part-time employment or consulting work during such two
year period shall not be credited against the Company's
obligation hereunder. The Employee shall be under no
obligation to obtain such other full-time employment, but if
he shall, he shall promptly give written notice to the Company
of the salary and benefits provided to the Employee in
connection with such other full-time employment, in order that
the amount of such credit may be determined.
I. Voluntary termination and termination for good cause
payments
The Employee's employment may be voluntarily terminated by him
at any time by giving not less than thirty (90) days written
notice thereof to the Company. Additionally, the Employee's
employment may be terminated at any time for Good Cause (as
defined herein) effective upon giving written notice to such
termination for Good Cause by the Company to the Employee. If
at any time during the term of this Agreement (i) the Employee
shall have voluntarily terminated his employment with the
Company (other than following a Change of Control), or (ii)
the Company shall have terminated the employment of the
Employee for Good Cause, the Employee shall be entitled to
receive only his base salary as privided in Section 3 hereof
and accrued vacation pay to the date of such termination, any
sick leave or unpaid expense reimbursements that may be due,
and no other benefits, except those that cannot be divested
pursuant to the Employee Retirement Income Security Act of
1974, as amended or other applicable law.
J. Termination following change of control
Termination following a change in control shall be defined as
shown in attached Exhibit A attached hereto.
K. Segregation of Funds for Severance Payments.
To help assure to the Employee the funding of the Company's
obligation to provide the payments and benefits following the
termination of the Employee's employment as provided for under
Section 7, the Company
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shall forthwith upon the termination of the Employee as
provided in any of such Section, place sufficient funds to
cover the required payments and the cost of the fringe
benefits provided for therein in a so-called "Rabbi Trust" or
other similar arrangement with a trustee reasonably acceptable
to the Employee, which trust shall insulate the amount placed
therein from the claims of the Company's creditors to the
maximum extent legally possible without the amount therein
being taxable in full to the Employee in the year of the
funding of such trust. The trust may be terminated and the
funds therein released to the Company at such time as the
Company shall cease to have any further obligation to the
Employee under the applicable Section 7 of this Agreement.
8. COVENANT NOT TO COMPETE.
Employee hereby covenants and agrees that during the initial and any
renewal term of this Agreement, and for a period of one year following the
termination of this Agreement, Employee shall not be engaged within the United
States, either directly or indirectly, in any matter or capacity, whether as an
advisor, principal, agent, partner, officer, director, Employee, member of an
association, or otherwise, in any business or activity, or own beneficially or
of record, five percent or more of the outstanding stock of any class of equity
securities in any Company in competition with the business then being conducted
by the Company. If Employee should breach the foregoing covenant, the Company
will cease making payments described in the previous section regarding
Termination of Agreement, and any associated payments contained therein; and
remaining unexercised stock options shall immediately be cancelled and benefit
plan provisions described in the Termination Section 7 shall be immediately
discontinued.
Additionally, at the option of the Board of Directors, the Company may
choose to extend the covenant not to compete set forth herein for a period of up
to an additional twelve months, beyond the initial twelve month period already
stipulated herein. In consideration for such election, the Company agrees to
make payment to the Employee the annualized salary and bonus equal to that in
effect during the fiscal year at the time of termination.
During this additional period of extension and payment, Employee agrees
not to solicit, directly or indirectly, any current Employee of the Company for
employment or engagement in any capacity outside of the Company, its
subsidiaries or affiliates.
9. CONFIDENTIALITY.
Employee will in the course of his employment by the Company have
access to confidential or proprietary data or information of the Company.
Employee will not at any time divulge or communicate to any person (other than
to a person bound by confidentiality obligations to the Company similar to those
contained in this Agreement) or use to the detriment of the Company or for the
benefit of any other person of such data or information. The provisions of this
Section 10 shall survive Employee's
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employment hereunder whether by the normal expiration of that employment or
otherwise. The term "confidential or proprietary data or information" as used in
this Agreement shall mean information not generally available to the public
including, without limitation, personnel information, financial information,
customer lists, supplier lists, trade secrets, secret processes, know-how,
computer data and programs, pricing, marketing and advertising data. The
Employee acknowledges and agrees that any confidential or proprietary data or
information that Employee has heretofore acquired was received in confidence and
as a fiduciary with respect to the business of the Company.
All written materials, records and documents made by Employee or coming into
Employee's possession during the term of employment concerning any products,
processes, information or services used, developed, investigated or considered
by the Company, or otherwise concerning the business or affairs of the Company,
shall be the sole property of the Company and upon termination of Employee's
employment, or upon request by the Board of Directors during Employee's
employment, Employee shall promptly deliver the same to the Company. In
addition, upon termination of Employee's employment, or upon request of the
Board of Directors during Employee's employment, Employee shall deliver to the
Company all other property of the Company in Employee's possession or under
Employee's control including, but not limited to, financial statements,
marketing and sales data and other documents and all Employer credit cards.
10. ASSIGNMENT OF PATENT RIGHTS, COPYWRITES, ETC.
The Employee shall promptly disclose in writing to the Company all
inventions, discoveries, improvements and materials subject to copyright
protection devised by him while in the employ of the Company, and the Employee
hereby transfers and assigns to the Company, all right, title and interest in
and to the same, including any and all domestic and foreign patent rights or
copyrights therein and any renewals thereof. On request of the Company, the
Employee shall execute from time to time during or after the termination of his
employment, such further instruments, including without limitation applications
for letters patent or copyrights and assignments thereof, as may be deemed
necessary or desirable by the Company to effectuate the provision of this
Agreement. It is agreed, however, and Employee is hereby notified, that the
agreements contained in this Section 11 do not apply to such items and
inventions for which no equipment, materials, supplies, facility or Confidential
Information of the Company was used and which was developed entirely on
Employee's own time, and
(a) which does not relate directly to
(i) the business of the Company or to
(ii) the Company's actual or demonstrably anticipated
research and development, or
(b) which does not result from any work performed by Employee for
the Company.
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11. OTHER BUSINESS ACTIVITIES.
Employee shall not serve as an officer of another company, whether for
compensation or otherwise, requiring more than nominal duties by the Employee,
during the term of this Agreement without the express prior written consent of
the Company's Board of Directors. Employee may not serve as a Director of any
other organization without express prior written approval by the Company's Board
of Directors, however, Employee's serving on the Boards of Chronimed and Life
Time Fitness is acknowledged and exempt from this restriction.
12. COOPERATION IN CLAIMS.
Both during employment and post employment, Employee agrees that in the
event of a legal action against the Company, or legal action initiated by the
Company against another party, in which Employee is deemed by the Company to be
a material witness or affiant, Employee agrees to make reasonable and best
efforts to cooperate with the Company in such matters. If Employee is no longer
employed, Company will reimburse Employee for time and expenses incurred as a
result of cooperation for this purpose.
13. INDEMNIFICATION.
The Company agrees to make its best efforts to indemnify and hold
harmless the Employee from liability incurred as a result of performance of
duties as an Officer and member of the Board of Directors. This includes but is
not limited to applicable statute, as well as efforts to secure coverage under
pertinent insurance policies.
14. NOTICES.
All notices, requests, demands and other communications provided for by
this Agreement shall be in writing and shall be deemed to have been given when
mailed at any general or branch United States Post Office enclosed in a
certified postpaid envelope, return receipt requested, and addressed to the
address of the respective party stated below or to such changed address as the
party may have fixed by notice:
If to the Employee:
Xxxx Xxxxxx Bullion
0000 Xxxxx Xxxxx
Xxxxx, Xxxxxxxxx 00000 - 1758
If to the Company:
Chairman, Compensation Committee of the Board of Directors
Orphan Medical, Inc.
Ridgedale Office Center
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00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Any notice of change of address shall only be effective, however, when
received.
15. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of, and be binding upon, the
Company, its successors and assigns, including, without limitation, any Company
which may acquire all or substantially all of the Company's assets and business
or into which the Company may be consolidated or merged, and the Employee, his
heirs, executors, administrators and legal representatives. The Employee may
assign his right to payment, and his obligations, under this Agreement.
16. APPLICABLE LAW.
This Agreement shall be governed by the laws of the State of Minnesota.
17. OTHER AGREEMENTS
This Agreement supersedes all prior understandings and agreements
between the parties. It may not be amended orally, but only by a writing signed
by the parties hereto.
18. NON-WAIVER.
No delay or failure by either party in exercising any right under this
Agreement, and no partial or single exercise of that right, shall constitute a
waiver of that or any other right.
19. HEADINGS.
Headings in this Agreement are for convenience only and shall not be
used to interpret or construe its provisions.
20. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
SIGNATURES
By /s/ Xxxxxxx Xxxxxx
------------------------------
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Xxxxxxx Xxxxxx
Chair, Compensation Committee
Orphan Medical, Inc. Board of Directors
EMPLOYEE
/s/ Xxxx Xxxxxx Bullion
---------------------------------
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EXHIBIT A
CHANGE OF CONTROL AGREEMENT
This agreement is made as of the 29th day of October, 1999, between
Orphan Medical, Inc., a Minnesota corporation (the "Company"), and Xxxx Xxxxxx
Bullion ("Employee"), residing in Edina, MN.
WITNESSETH THAT:
WHEREAS, the Company believes that it is in the best interests of
the Company to maintain management capable of protecting and enhancing the best
interests of the Company and its shareholders; and
WHEREAS, in connection therewith, the Company believes that it is
important for Employee to be available to assist and advise the Company and its
board of directors in the event the Company or its shareholders receives a
proposal for transfer of control of the Company, without being influenced by any
uncertainties which may exist with regard to Employee's future employment.
NOW, THEREFORE, to assure the Company that it will have continued
access to the dedicated services of Employee notwithstanding the possibility,
threat or occurrence of a bid to take over control of the Company, and to induce
Employee to remain in the employ of the Company, the Company and Employee agree
as follows:
1. Definitions.
As used herein, the following terms shall have the meanings set
forth below:
(i) A "Change in Control" shall mean the occurrence of any of the
following events:
(a) a change in control of the Company of a nature
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended ("Exchange Act"), whether or not the Company is
then subject to such reporting requirement; or
(b) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of securities of the Company representing
(a) at least 15% but no more than 50% of the combined voting power
of the Company's then
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outstanding securities unless the transaction is approved by the
Board of Directors of the Company in advance of the event, or by a
majority of the Continuing Directors within 30 days after the event,
or (b) more than 50% of the combined voting power of the Company's
then outstanding securities (regardless of any approval of the Board
of Directors); or
(c) individuals who at the date hereof constitute the
Board of Directors of the Company cease to constitute a majority
thereof, provided that such change is the direct or indirect result
of a proxy fight and contested election for positions on the Board;
or
(d) the sale, lease, exchange or other transfer,
directly or indirectly, of all or substantially all of the assets of
the Company, in one transaction or in a series of related
transactions; or
(e) a merger or consolidation to which the Company is a
party if the shareholders of the Company immediately prior to the
effective date of such merger or consolidation have "beneficial
ownership" (as defined in Rule 13d-3 promulgated under the Exchange
Act) immediately following the effective date of such merger or
consolidation of securities of the surviving company representing
(a) 50 percent or more, but not more than 85 percent, of the
combined voting power of the surviving corporation's then
outstanding securities, unless such merger or consolidation has been
approved in advance by the Board of Directors of the Company in
advance of the event, or by a majority of the Continuing Directors
within 30 days after the event or (b) less than 50 percent of the
combined voting power of the surviving corporation's then
outstanding securities (regardless of any approval by the continuity
directors); or
(f) the Board of Directors of the Company determines, in
its sole and absolute discretion, that there has been a change in
control of the Company.
(ii) "Continuing Directors" shall include only those directors of
the Company on the date hereof and those directors, as of a date 30 days prior
to an event that would otherwise be considered a "Change in Control," who were
nominated by Continuing Directors and duly elected by shareholders at an annual
meeting thereof or nominated and elected by directors who were "Continuing
Directors."
(iii) "Cause" shall mean termination by the Company of Employee's
employment based upon (a) the willful and continued failure by Employee
substantially to perform his duties and obligations (other than any such failure
resulting from his incapacity due to physical or mental illness) or (b) the
willful misconduct of Employee which is materially injurious to the Company or
any of its subsidiaries, monetarily or otherwise. For purposes of this
paragraph, an act, or failure to act, shall be considered
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"willful" if done, or omitted to be done, by Employee in bad faith and without
reasonable belief that the action or omission was in the best interests of the
Company.
(iv) "Disability" shall mean any physical or mental condition which
would qualify Employee for a disability benefit under the long-term disability
plan of the Company.
2. Term of Agreement.
This agreement shall commence on the date hereof and shall continue
in effect until (i) Employee and the Company mutually agree in writing to
terminate this agreement, (ii) termination of Employee's employment with the
Company in a manner other than as set forth in section 3(i) hereof, or (iii)
Employee reaches the age of sixty-five (65).
3. Termination of Employment.
(i) Employee shall be entitled to receive the cash payment and other
benefits provided in section 4 hereof if, during the term of this agreement, the
Company, within twelve (12) months of a Change in Control, shall have terminated
Employee without Cause, required the Employee to relocate or offered employee
continued employment at a lower pay level and lesser level of responsibility.
(ii) Nothing contained herein shall be deemed to constitute a
guarantee of employment or limit the Company's right to terminate Employee prior
to a Change in Control or for Cause following a Change in Control. Employee's
rights upon termination of employment prior to a Change in Control or after the
expiration of the term of this agreement or after the expiration of the
prescribed periods following a Change in Control set forth in section 3(i) shall
be governed by the standard employment termination policy applicable to Employee
in effect at the time of termination.
4. Benefits Upon Termination Under Section 3(i)
Upon the termination of Employee pursuant to section 3(i) hereof,
Employee shall be entitled to receive the benefits specified in this section 4.
The amounts due to Employee under this section 4 shall be paid to Employee not
later than Employee's last day of employment. All payments to Employee pursuant
to this Section 4 shall be subject to any applicable payroll or other taxes
required by law to be withheld.
(i) The Company shall pay to Employee (a) the full base salary
earned by him and unpaid through the effective date of Employee's termination,
at the rate in effect at the time notice of termination was given, plus (b) an
amount representing credit for any vacation earned by him in the current
calendar year, but not taken.
(ii) In lieu of any further base salary payments to Employee for
periods subsequent to the date that the termination of Employee's employment
becomes
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Page 17
effective, the Company shall pay as severance pay to Employee a lump sum amount
in cash equal to the following: the highest annual salary and incentive payment
within the last two years divided by 12 multiplied by 24 months.
(iii) All options to purchase the Company's Common Stock and all
other incentive awards granted to Employee under the Company's 1994 Long-Term
Incentive and Stock Option Plan or any other stock option or incentive
compensation plan adopted by the Company (each, a "Plan" and, together, the
"Plans") shall become immediately exercisable or vested, as the case may be;
provided, however, such options or awards shall be exercisable or payable, as
the case may be, only in a manner consistent with the terms of the Plans and
related stock option or other agreements, as applicable and as in effect upon
the date of termination.
(iv) In addition to all other amounts payable to Employee under this
section 4, Employee shall be entitled to receive all benefits payable or
distributable to Employee under any Company pension plan and any other plan or
agreement relating to retirement benefits in accordance with the policies in
respect thereof in effect as of the date of the Change in Control.
(v) The Company shall pay to Employee all legal fees and expenses
incurred by Employee in seeking to obtain or enforce any right or benefit
provided to Employee by this agreement.
(vi) Should the Employee refuse continued employment at a similar
pay and responsibility level, the Employee will not be eligible for the benefits
as described in 4. (ii) above.
Notwithstanding anything contained in this agreement to the
contrary, the maximum amount to be paid by Company to Employee pursuant to the
terms of this Agreement and this section 4 shall be limited to an amount which
does not constitute an "excess parachute payment" within the meaning of section
280G of the Internal Revenue Code of 1954, as amended, or any successor
provision or regulations promulgated thereunder.
Employee shall not be required to mitigate the amount of any payment
provided for in this section 4 by seeking other employment or otherwise. The
amount of any payment or benefit provided in this section 4 shall not be reduced
by any compensation earned by Employee as a result of any employment by another
employer.
5. Successors; and Binding Agreement.
(i) The Company will use its best efforts to require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise),
to all or substantially
Employment Agreement
Page 18
all of the business and/or assets of the Company, by written agreement in form
and substance satisfactory to Employee, expressly to assume and agree to perform
the Company's obligations under this agreement arising out of any such
succession in the same manner and to the same extent that the Company would be
required to perform this agreement. As used in this agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which executes and delivers the agreement provided
for in this section 5(i) or which otherwise becomes bound by all the terms and
provisions of this agreement by operation of law.
(ii) This agreement is personal to Employee and Employee may not assign
or transfer any part of his rights or duties hereunder, or any compensation due
to him hereunder, to any other person. Notwithstanding the foregoing, this
agreement shall inure to the benefit of and be enforceable by Employee's
personal or legal representatives, executors, administrators, heirs,
distributees, devisees and legatees.
6. Modification; Waiver. No provision of this agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in a
writing signed by Employee and such officer as may be specifically designated by
the Board of Directors of the Company. No waiver by either party hereto at any
time of any breach by the other party hereto of any condition or provision shall
be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
7. Notice. All notices, requests, demands and all other communications required
or permitted by either party to the other party by this agreement (including,
without limitation, any notice of termination of employment) shall be in writing
and shall be deemed to have been duly given when delivered personally or mailed
by regular, certified or registered mail, return receipt requested, at the
address of the other party, as follows:
If to the Company, to:
Orphan Medical, Inc.
Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx 000
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
If to Employee, to:
Xxxx Xxxxxx Buillion
0000 Xxxxx Xxxxx
Xxxxx, Xxxxxxxxx 00000
Employment Agreement
Page 19
8. Severability. If any term or provision of this agreement or the application
hereof to any person or circumstances shall to any extent be invalid or
unenforceable, the remainder of this agreement or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby, and each term and
provision of this agreement shall be valid and enforceable to the fullest extent
permitted by law.
9. Headings. The headings in this agreement are inserted for convenience or
reference only and shall not be a part of or control or affect the meaning of
this agreement.
10. Counterparts. This agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11. Governing Law. This agreement has been executed and delivered in the state
of Minnesota and shall in all respects be governed by, and construed and
enforced in accordance with, the laws of the state of Minnesota, including all
matters of construction, validity and performance, but without giving effect to
the choice of law provisions thereof.
12. Entire Agreement. This agreement supersedes any and all other oral or
written agreements or policies made relating to the subject matter hereof;
provided that, this agreement shall not supersede or limit in any way Employee's
rights under any benefit plan, program or arrangements in accordance with their
terms.
