Exhibit 10.59
AMENDMENT NO. 1
TO THE
EMPLOYMENT AGREEMENT DATED
NOVEMBER 18, 1999 BETWEEN
SCHEIN PHARMACEUTICAL, INC. AND XXXXXXX XXXXXXX
Reference is made to the Employment Agreement dated November 18, 1999 between
Schein Pharmaceutical, Inc. and Xxxxxxx Xxxxxxx (the "Employment Agreement").
Capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Employment Agreement.
1. Section 11.8 of the Employment Agreement is deleted and restated to read
as follows:
"11.8 Maximum Payment. Notwithstanding anything herein to the
contrary, if it is determined that any payment made to the Executive,
whether pursuant to the terms of this Agreement or otherwise (including
but not limited to any stock option agreement), would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended, or any interest or penalties with respect to such excise tax
(such excise tax, together with any interest or penalties thereon, is
herein referred to as an "Excise Tax"), then the Executive shall be
entitled to an additional payment or payments (a "Gross-Up Payment") in an
amount that will place him in the same after-tax economic position that he
would have enjoyed if the Excise Tax had not applied. The amount of the
Gross-Up Payment shall be determined by the nationally recognized firm of
accountants serving as the Company's independent auditors immediately
prior to the Change of Control which resulted in the application of the
Excise Tax, in their sole discretion, and shall be payable upon the
Executive's demand."
Except as amended hereby, the Employment Agreement shall continue in full force
and effect.
Dated as of December 31, 1999
/s/ Xxxxxxx Xxxxxxx SCHEIN PHARMACEUTICAL, INC.
-----------------------------
Xxxxxxx Xxxxxxx
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx
Chairman and CEO
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of this 18th day of November,
1999 by and between Schein Pharmaceutical, Inc. (the "Company"), a Delaware
corporation, and Xxxxxxx Xxxxxxx (the "Executive").
The Executive is presently employed by the Company as the Executive Vice
President and Chief Financial Officer;
The Company desires to employ the Executive and the Executive is willing
to be employed by the Company as the President and Chief Operating Officer; and
The Company and the Executive desire to set forth the terms and conditions
of such employment.
In consideration of the foregoing and of the mutual covenants and
agreements of the parties set forth in this Agreement, and of other good and
valuable consideration, the adequacy and receipt of which is acknowledged, the
parties hereto agree as follows:
1. Term of Employment
The Company hereby agrees to employ the Executive and the Executive
hereby accepts employment, in accordance with the terms and conditions set forth
herein, for a term commencing on the date hereof (the "Effective Date") and
terminating, unless otherwise terminated earlier in accordance with Section 5
hereof, on the fifth anniversary of the Effective Date (the "Employment Term"),
provided that, on the fifth anniversary of the Effective Date, and on each
anniversary of the Effective Date thereafter (each such date, an "Anniversary
Date"), the Employment Term shall be automatically extended, subject to earlier
termination as provided in Section 5 hereof, for additional one year periods,
unless, at least six months prior to the fifth anniversary of the Effective Date
or any Anniversary Date, as applicable, the Company or the Executive has
notified the other in writing that the Employment Term shall terminate at the
end of the then current term. If such original Employment Term is so extended,
such extended term shall thereafter be the "Employment Term" for purposes of
this Agreement.
2. Position and Responsibilities
During the Employment Term, the Executive shall serve as the
President and Chief Operating Officer of the Company. The Executive shall report
to the Chief Executive Officer. The Executive shall, to the extent appointed or
elected, serve on the Board of Directors of the Company (the "Board") as a
director and as a member of any committee of the Board, in each case, without
additional compensation. The Company shall use its reasonable best efforts to
include the Executive in the slate of nominees for the Board. The Executive
shall, to the extent appointed or elected, serve as a director or as a member of
any committee of the Board (or the equivalent bodies in a non-corporate
subsidiary or affiliate) of any of the Company's subsidiaries
or affiliates and as an officer or employee (in a capacity commensurate with his
position with the Company) of any such subsidiaries or affiliates, in all cases,
without additional compensation or benefits and any compensation paid to the
Executive, or benefits provided to the Executive, in such capacities shall be a
credit with regard to the amounts due hereunder from the Company. The Executive
shall have reporting responsibility for the areas set forth on Exhibit A hereto.
The Executive shall devote substantially all of his business time, attention and
energies to the performance of his duties hereunder, provided the foregoing will
not prevent the Executive from participating in charitable, community or
industry affairs and from managing his and his family's personal passive
investments, provided that these activities do not materially interfere with the
performance of his duties hereunder or create a potential business conflict or
the appearance thereof.
3. Compensation and Benefits
During the Employment Term, the Company shall pay and provide the
Executive the following:
3.1 Base Salary. The Company shall pay the Executive a base salary
(the "Base Salary") in the amount of $550,000 per year plus additional
compensation (the "Additional Compensation") of $75,000 per year for the
Employment Term. The Base Salary shall be paid to the Executive in accordance
with the Company's normal payroll practices for its senior executives. The
Additional Compensation shall be paid in four equal quarterly installments on
the first normal Company payroll date that falls within each fiscal quarter. If
the Base Salary (or Additional Compensation, as the case may be) is increased,
it shall not thereafter be decreased and shall thereafter, as increased, be the
Base Salary (or Additional Compensation, as the case may be) hereunder. The
Additional Compensation shall not be included in any calculation of retirement
benefits or other employee benefits, except as provided for herein. The
Executive's aggregate Base Salary and Additional Compensation shall be reviewed
annually and shall be increased based upon the Executive's performance and
consistent with the increases received by other senior officers.
3.2 Annual Bonus. The Company shall pay to the Executive as an
annual bonus (the "Annual Bonus") with respect to each fiscal year ending during
the Employment Term beginning with fiscal year 2000, an amount which is a
percentage of the sum of the Executive's then current Base Salary and Additional
Compensation, which percentage is calculated by multiplying two times the
percentage increase in the Company's EPS (as hereinafter defined) for the bonus
year over the greater of the EPS for the prior year and the Company's Base EPS
(as hereinafter defined) for such bonus year; provided, however, that no bonus
shall be paid with respect to any fiscal year when such percentage increase is
not at least 15%. The Annual Bonus for any given year shall be paid to the
Executive no later than the thirty-first day of March, in the year following the
year in which such Annual Bonus is earned, or such other date in accordance with
the Company's practice for other senior executives. The Company's Earnings Per
Share ("EPS") for any fiscal year shall be the Earnings Per Share, as reflected
in the Company's audited
2
Consolidated Statement of Operations prepared in accordance with generally
accepted accounting principals for such fiscal year; provided, however, that the
Compensation Committee (the "Compensation Committee") of the Board shall
determine whether extraordinary items shall be included or excluded in the
calculation of EPS for purposes of this Agreement in any given year. The
Company's Base Earnings Per Share (the "Base EPS") shall equal (i) for the year
2000, the EPS for 1999 and (ii) for each subsequent year, 110% of the Base EPS
for the immediately preceding fiscal year. Notwithstanding the foregoing, the
Executive shall have no right to receive any bonus payment in excess of two
times the sum of the Executive's then current Base Salary and Additional
Compensation, unless such bonus payment is first approved by the Compensation
Committee, in its sole discretion. If the exclusion or inclusion of
extraordinary items in determining EPS affects the amount of the Executive's
bonus for any given year, or the Compensation Committee does not approve a bonus
in excess of two times the sum of the Executive's current Base Salary and
Additional Compensation, the bonus formula for calculating an increase in EPS in
determining the Executive's bonus the following year will reflect an adjustment
from EPS in the prior year to the amount of EPS that would have resulted in the
bonus actually paid to the Executive for such year. Notwithstanding any
provision contained herein to the contrary, the Executive's 1999 Annual Bonus
shall be determined in accordance with the Company's Management Incentive
Program as in effect immediately prior to the Effective Date, and the payment of
such bonus shall not be adversely affected by the provisions of this Agreement.
3.3 Long-Term Incentives: Options. During the Employment Term, the
Executive will be granted a stock option (each, an "Annual Option"), on the
Effective Date and on such date in each fiscal year that option grants are
generally made to senior executives, under the Schein Pharmaceutical, Inc. 1999
Stock Option Plan or other Company plan (the "Plan") to purchase such number of
shares of the Company's common stock (the "Common Stock"), on a basis and in a
manner commensurate with the Executive's position and consistent with the
Company's practice with respect to its other senior executives; provided,
however, that in no event shall Annual Options be granted during any fiscal year
to purchase less than an aggregate of fifty thousand shares of Common Stock
(subject to any adjustment for stock splits, dividends, recapitalizations and
similar corporate events). The exercise price with respect to each share of
Common Stock subject to an Annual Option shall be the fair market value on the
date of grant, determined in accordance with the Plan. Each Annual Option will
become exercisable in three equal annual installments beginning one year after
the date of grant, provided that the Executive is employed by the Company on
such vesting date.
3.4 Long-Term Incentives: Stock.
(a) The Company shall sell and the Executive shall purchase 250,000
shares of Common Stock (the "Incentive Shares"), at the closing
price of the Common Stock on the New York Stock Exchange on the
Effective Date (the "Purchase Price"). The Company shall loan the
Purchase Price to the Executive to purchase the Incentive Shares,
which loan shall be evidenced by a promissory note
3
substantially in the form attached hereto as Exhibit B. If the loan
or interest is due and the Incentive Shares are not then registered
for resale and if Rule 144 is unavailable, at the Executive's
request during the Employment Term, the Executive shall sell, and
the Company shall purchase from the Executive, such number of the
Incentive Shares as shall be sufficient to satisfy the Executive's
obligation to the Company. The Company shall purchase such Incentive
Shares at the average closing price of the Common Stock on the New
York Stock Exchange for the 20 trading days prior to the date the
Company receives such request, subject to any contractual or legal
limitations on the Company's ability to purchase the Incentive
Shares. Certificates representing the Incentive Shares shall contain
the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM. IN ADDITION, THESE SECURITIES WERE ISSUED
PURSUANT TO THAT CERTAIN EMPLOYMENT AGREEMENT DATED AS
NOVEMBER 18, 1999 BETWEEN XXXXXXX XXXXXXX AND THE COMPANY AND
ARE SUBJECT TO THE PROVISIONS OF THE EMPLOYMENT AGREEMENT AND
THE PROMISSORY NOTE DATED AS OF NOVEMBER 18, 1999, ISSUED BY
XXXXXXX XXXXXXX TO THE COMPANY IN CONNECTION WITH THE PAYMENT
FOR THE SECURITIES."
(b) Each time that the Company proposes to register any of its
securities under the Securities Act (other than pursuant to a
registration on Form X-0, X-0 or any successor form), whether or not
for sale for its own account, it will each such time give written
notice to the Executive of its intention to do so, not less than 30
days prior to filing such registration statement. Upon the written
request of the Executive made within 15 days after the receipt of
any such notice (which request shall specify the Incentive Shares
intended to be disposed of by the Executive and the intended method
of disposition thereof), the Company will use its reasonable best
efforts, consistent with the Company's existing agreements, to
effect the registration under the Securities Act of all Incentive
Shares which the Company has been so requested to register by the
Executive, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the
Incentive Shares so to be registered, provided, that, if at any time
after giving written notice of its intention to register any
securities and prior to the effective
4
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company
may, at its election, give written notice of such determination to
the Executive and, thereupon, (i) in the case of a determination not
to register, shall be relieved of its obligation to register any
Incentive Shares in connection with such registration and (ii) in
the case of a determination to delay registering, shall be permitted
to delay registering any Incentive Shares, for the same period as
the delay in registering such other securities. The Company will pay
all registration expenses in connection with each registration of
Incentive Shares requested pursuant to this Section.
3.5 Employee Benefits. The Executive shall, to the extent eligible,
be entitled to participate at a level commensurate with his position in all
employee benefit welfare and retirement plans and programs, as well as equity
plans, generally provided by the Company to its senior executives in accordance
with the terms thereof as in effect from time to time.
3.6 Perquisites. The Company shall provide to the Executive, at the
Company's sole expense, all perquisites which other senior executives of the
Company are generally entitled to receive from time to time, commensurate with
his position as a senior executive of the Company. The Company will furnish the
Executive with an automobile or an automobile allowance, and will reimburse the
Executive for all normal operating costs including insurance, gas, normal
maintenance and repairs, in keeping with the Company's automobile policy in
effect for senior executives from time to time.
3.7 Right to Change Plans. The Company shall not be obligated by
reason of this Section 3 to institute, maintain, or refrain from changing,
amending, or discontinuing any benefit plan, program, or perquisite prior to a
Change of Control (as hereinafter defined), so long as such changes are
similarly applicable to all senior executives generally. However, if the split
dollar life insurance in place with respect to the Executive on the Effective
Date is adversely changed or eliminated, or if the Company does not grant the
Executive options to purchase 50,000 shares (as such number may be adjusted in
accordance with Section 3.3 herein) in a given year, another benefit of
equivalent value shall be given to the Executive. Following a Change of Control,
the Company shall not change, amend or discontinue any benefit plan, program, or
perquisite in a manner which results in a diminution of benefits to the
Executive without the approval of the Incumbent Board (as hereinafter defined).
4. Expenses
Upon submission of appropriate documentation, in accordance with its
generally-applicable policies in effect from time to time, the Company shall
pay, or reimburse the Executive for, all ordinary and necessary expenses, in a
reasonable amount, which the Executive incurs in performing his duties under
this Agreement including, but not limited to, travel, entertainment,
professional dues and subscriptions, and all dues, fees, and expenses associated
5
with membership in various professional, business, and civic associations and
societies in which the Executive participates in accordance with the Company's
generally-applicable policies in effect from time to time.
5. Termination and Definition of Certain Terms
5.1 Termination of Employment. The Executive's employment with the
Company (including but not limited to any subsidiary or affiliate of the
Company) and the Employment Term shall terminate upon the occurrence of the
first of the following events:
(a) Automatically on the date of the Executive's death.
(b) Upon the Disability of the Executive.
(c) Upon written notice by the Company to the Executive of a termination
for Cause, in accordance with the provisions of Section 5.3 hereof,
provided such termination for Cause has been approved by a majority
of the Board. Such notice shall include the Board's determination as
to whether the Cause may be cured, and shall be of no effect if the
Executive so cures to the Board's sole satisfaction within ten
business days of the Company's giving of the notice.
(d) Upon thirty days written notice by the Company to the Executive of
an involuntary termination without Cause.
(e) Upon thirty days written notice by the Executive to the Company of a
termination for Good Reason (which notice sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for
such termination) unless the Good Reason event is cured within such
thirty day period. Anything contained herein to the contrary
notwithstanding, the Executive may only terminate his employment for
Good Reason if he gives notice to the Company within thirty days
from the date that he becomes aware of the event that constitutes
the Good Reason for terminating his employment.
(f) Upon thirty days written notice by the Executive to the Company of
the Executive's voluntary termination of employment without Good
Reason (which the Company may, in its sole discretion, make
effective earlier than any notice date).
5.2 Definition of Disability. The Executive shall be considered to
have a "Disability" if he satisfies the definition set forth in the Company's
long-term disability benefit plan in which he is enrolled at the time of the
determination or if there is no such plan, for a continuous period of six
months, he is unable to perform his duties under this Agreement for reasons of
health, and, in the opinion of a physician appointed by the Company and
reasonably
6
acceptable to the Executive, such disability will continue for a prolonged
period of time.
5.3 Definition of Cause. The term "Cause" shall mean the occurrence
of any of the following:
(a) The Executive's willful and continued failure to substantially
perform his duties under this Agreement for the Company or its
affiliates (other than any such failure resulting from the
Executive's incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered by the
Board, which demand specifically identifies the manner in which the
Board believes that the Executive has not substantially performed
his duties;
(b) The willful commission by the Executive of fraud, misappropriation
or intentional material damage to the property or business of the
Company; or
(c) The conviction of the Executive for the commission of a felony. No
act or failure to act shall be "willful" unless done, or omitted to
be done, not in good faith and without reasonable belief that the
act or failure to act was in the best interests of the Company.
5.4 Definition of Good Reason. The term "Good Reason" shall mean the
occurrence of any of the following:
(a) The Company assigning the Executive to duties or responsibilities
that are inconsistent, in any significant respect, with the scope of
duties or responsibilities provided for under this Agreement, unless
such assignment is temporary and as a result of medical reasons
affecting the Executive; provided, however, if the Chief Financial
Officer begins reporting to the Chief Executive Officer it shall not
constitute Good Reason under this Agreement;
(b) Any reduction in the Executive's Base Salary or Additional
Compensation provided for under this Agreement;
(c) Except where expressly approved by the Executive, (i) the relocation
of the Executive's principal place of business from more than a 20
mile radius of the Executive's principal place of business as of the
date of this Agreement and (ii) in the event of a Change of Control,
the relocation of the Executive's principal place of business as of
the date immediately prior to such Change of Control;
(d) After the Executive gives notice pursuant to Section 5.1(e) and the
Company has not cured the failure contained in the notice within
thirty days of receipt of the notice by the Company, the failure of
the Company to pay to the Executive any portion of the Executive's
current compensation, or to pay to the Executive any portion of an
installment of deferred compensation under any deferred
7
compensation program of the Company;
(e) The failure by the Company (i) to continue in effect any
compensation plan in which the Executive participates unless (A)
other senior executives of the Company are similarly affected or (B)
an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan or (ii) to
continue the Executive's participation therein (or in such
substitute or alternative plan) on a basis not materially less
favorable than that in effect immediately prior to such failure,
unless other senior executives of the Company are similarly
affected; provided, however, if the split dollar life insurance in
place with respect to the Executive on the Effective Date is
adversely changed or eliminated, or if the Company does not grant
the Executive options to purchase 50,000 shares (as such number may
be adjusted in accordance with Section 3.3 herein) in a given year,
it shall constitute Good Reason under this Agreement; or
(f) The failure of a successor, as such term is used in Section 9.1
herein, to assume this Agreement, by operation of law or otherwise.
5.5 Definition of Change of Control. As used herein, "Change of
Control" shall mean the occurrence of any of the following:
(a) An acquisition by any individual, entity or group (within the
meaning of Section 13d-3 or 14d-1 of the Securities Exchange Act of
1934, as amended (the "Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Act) of more
than 50% of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election
of directors to the Board (the "Outstanding Company Voting
Securities"); excluding, however, the following: (x) any acquisition
by the Company, (y) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or (z) any
acquisition by any corporation pursuant to a reorganization, merger,
consolidation or similar corporate transaction (in each case, a
"Corporate Transaction"), if, pursuant to such Corporate
Transaction, the conditions described in (A), (B) and (C) of clause
(c) of this Section 5.5 are satisfied;
(b) A change in the composition of the Board such that the individuals
who, as of the Effective Date, constitute the Board (the Board as of
the Effective Date shall be hereinafter referred to as the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided that, for purposes of this paragraph
(b), any individual who becomes a member of the Board subsequent to
the Effective Date and whose election, or nomination for election by
the Company's stockholders, was approved by a majority of the
members of the Board who also are members of the Incumbent Board (or
so deemed to be pursuant to
8
this proviso) shall be deemed a member of the Incumbent Board; but,
provided further, that any such individual whose initial assumption
of office is in connection with a Change of Control described in
paragraphs (a), (c) or (d) of this Section 5.5 or whose initial
assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board shall not be so deemed a member of the
Incumbent Board; or
(c) The approval by the stockholders of the Company of a Corporate
Transaction or, if consummation of such Corporate Transaction is
subject, at the time of such approval by stockholders, to the
consent of any government or governmental agency, the obtaining of
such consent (either explicitly or implicitly by consummation);
excluding, however, such a Corporate Transaction pursuant to which
(A) the beneficial owners (or beneficiaries of the beneficial
owners) of the Outstanding Company Voting Securities immediately
prior to such Corporate Transaction will beneficially own, directly
or indirectly, more than 60% of the outstanding shares of common
stock of the corporation resulting from such Corporate Transaction,
in substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding
Company Voting Securities, (B) no Person (other than the Company,
any employee benefit plan (or related trust) of the Company or the
corporation resulting from such Corporate Transaction and any Person
beneficially owning, immediately prior to such Corporate
Transaction, directly or indirectly, 20% or more of the Outstanding
Company Voting Securities) will beneficially own, directly or
indirectly, 20% or more of the outstanding shares of common stock of
the corporation resulting from such Corporate Transaction and (C)
individuals who were members of the Incumbent Board will constitute
at least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(d) The approval of the stockholders of the Company of (A) a complete
liquidation or dissolution of the Company or (B) the sale or other
disposition of all or substantially all the assets of the Company;
excluding, however, such a sale or other disposition to a
corporation with respect to which, following such sale or other
disposition, (x) more than 60% of the then outstanding shares of
common stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation entitled
to vote generally in the election of directors will be then
beneficially owned, directly or indirectly, by the individuals and
entities who were the beneficial owners (or beneficiaries of the
beneficial owners), of the Outstanding Company Voting Securities
immediately prior to such sale or other disposition in substantially
the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company
9
Voting Securities, (y) no Person (other than the Company and any
employee benefit plan (or related trust) of the Company or such
corporation and any Person beneficially owning, immediately prior to
such sale or other disposition, directly or indirectly, 20% or more
of the Outstanding Company Voting Securities) will beneficially own,
directly or indirectly, 20% or more of the combined voting power of
the then outstanding voting securities of such corporation entitled
to vote generally in the election of directors and (z) individuals
who were members of the Incumbent Board will constitute at least a
majority of the members of the board of directors of such
corporation.
Section 6. Consequences of a Termination of Employment
6.1 Reference Salary/Reference Bonus.
(a) As used herein, "Reference Bonus" shall mean the higher of (i) the
highest annual bonus earned by the Executive in respect of any of
the three years ending immediately prior to the date of termination
or, if higher, immediately prior to the year in which the first
event constituting Good Reason occurs or (ii) if at least 50% of the
then-current year has elapsed as of the date of termination, the
higher of (A) the highest Annual Bonus earned by the Executive in
respect of any of the two years ending immediately prior to
termination or (B) the Annual Bonus that would be payable for such
year, calculated assuming the results for such year equal the
annualized results for such elapsed period.
(b) As used herein, "Reference Salary" shall mean the sum of the
Executive's Base Salary and Additional Compensation as in effect
immediately prior to the date of termination or, if higher, as in
effect immediately prior to the first event constituting Good Reason
hereunder.
6.2 Termination Due to Death or Disability. If the Employment Term ends on
account of the Executive's termination due to death pursuant to Section 5.1(a)
or Disability pursuant to Section 5.1(b) above, the Executive (or, in the event
of death, the Executive's surviving spouse, or other beneficiary as so
designated by the Executive during his lifetime, or to the Executive's estate,
as appropriate) shall be entitled, in lieu of any other payments or benefits, to
the following:
(a) The Executive's unpaid Base Salary and Additional Compensation
through the date of termination;
(b) Any incentive compensation awarded to the Executive but not yet paid
for the year preceding the year of termination;
(c) A pro rata bonus equal to the product of (i) the Reference Bonus and
(ii) a
10
fraction, the numerator of which is the number of days in the year
of termination through and including the date of termination and the
denominator of which is 365;
(d) reimbursement for any unreimbursed business expenses incurred in
accordance with Section 4 hereof prior to the date of termination;
(e) any amounts or benefits due under any equity or benefit plan, grant
or program in accordance with the terms of said plan, grant or
program but without duplication (such amounts specified in clauses
(a), (b), (c), (d) and (e) are hereinafter referred to as the
"Accrued Obligations"); and
(f) To the extent participating immediately prior to the date of
termination, continued participation for the Executive and the
Executive's dependents (to the extent participating at the time of
termination) in all welfare plans (including, in the case of
Disability, the split dollar life insurance policy if and to the
extent in effect at the time of termination) for the period of one
year from the date of termination or such longer period with respect
to any welfare plan as is then the policy of the Company with
respect to senior officers following such a termination, provided,
however, that in the event the Executive obtains other employment
that offers substantially similar or improved benefits, as to any
particular welfare plan, such continuation of coverage by the
Company for such benefits under such plan shall immediately cease.
To the extent such coverage cannot be provided under the Company's
welfare benefit plans without jeopardizing the tax status of such
plans, for underwriting reasons or because of the tax impact on the
Executive, the Company shall pay the Executive an amount such that
the Executive can purchase such benefits separately.
6.3 Involuntary Termination by the Company Without Cause or Termination by
the Executive for Good Reason. If the Executive is involuntarily terminated by
the Company without Cause in accordance with Section 5.1(d) above or the
Executive terminates his employment for Good Reason in accordance with Section
5.1(e) above, the Executive shall be entitled, in lieu of any other payments or
benefits, subject to Section 7(b) hereof, to any Accrued Obligations and the
following:
(a) (i) If the termination occurs prior to the third anniversary of the
Effective Date, a severance payment of at least $1.5 million, equal
to the product of two times the sum of the Reference Salary and
Reference Bonus, payable in equal amounts over a two year period in
accordance with the Company's normal payroll practices provided,
however, that if a Change of Control occurs while the Executive is
receiving severance payments pursuant to this Section, the remaining
severance payments shall be payable to the Executive in one lump
sum;
11
(ii) If the termination occurs on or after the third anniversary of
the Effective Date, a severance payment equal to the product of the
sum of the Reference Salary plus the Reference Bonus multiplied by a
fraction (in no event less than one), the numerator of which is the
remaining number of full months (counting the month in which such
termination occurs as a full month) in the Employment Term and the
denominator which is twelve, payable in equal amounts over the
remaining term of the Agreement, but not less than one year, in
accordance with the Company's normal payroll practices (plus, if
such fraction is less than 3/2, up to six months (so that the total
period for which severance payments are being made is 18 months) at
a 50% rate, payable in the same manner) provided, however, that if a
Change of Control occurs while the Executive is receiving severance
payments pursuant to this Section, the remaining severance payments
shall be payable to the Executive in one lump sum;
(iii) If the termination occurs following a Change of Control, a
severance payment equal to two times the sum of the Reference Salary
and the Reference Bonus, but not less than $1.5 million, payable in
a lump sum payment;
(b) To the extent participating immediately prior to the date of
termination (or immediately prior to the first event constituting
Good Reason, if more favorable), continued participation for the
Executive and the Executive's dependents (to the extent
participating at the time of termination) in all welfare plans
(including the split dollar life insurance policy if and to the
extent in effect at the time of termination or the time of the event
constituting Good Reason, as applicable) for the period of severance
payments (or, in the event of an accelerated lump sum payment under
Section 6.3(a)(i) or (ii), the original period of severance payments
without regard to such acceleration or, in the event of a lump sum
payment under Section 6.3(a)(ii), two years) or such longer period
with respect to any welfare plan as is then the policy of the
Company with respect to senior officers following such a
termination, provided, however, that in the event the Executive
obtains other employment that offers substantially similar or
improved benefits, as to any particular welfare plan, such
continuation of coverage by the Company for such benefits under such
plan shall immediately cease. To the extent such coverage cannot be
provided under the Company's welfare benefit plans without
jeopardizing the tax status of such plans, for underwriting reasons
or because of the tax impact on the Executive, the Company shall pay
the Executive an amount such that the Executive can purchase such
benefits separately;
(c) Immediate full vesting of any outstanding stock options including,
but not limited to, any Annual Options. The term of all of the
Executive's outstanding stock options shall terminate on the earlier
of (i) three years from the date of termination of the Executive's
employment by the Company without Cause or by the Executive for Good
Reason or (ii) the original remaining term applicable to such
12
options; and
(d) Payment for up to one year of executive outplacement services from a
major outplacement service firm of the Executive's choosing.
6.4 Termination by the Company for Cause or Termination by the Executive
without Good Reason. If the Executive is terminated by the Company for Cause
pursuant to Section 5.1(c) or the Executive terminates his employment without
Good Reason pursuant to Section 5.1(e), the Executive shall be entitled to
receive all Accrued Obligations (other than the obligation specified in clause
(c) of Section 6.2 hereof).
6.5 Nonrenewal of the Employment Term. If the Company elects not to renew
the Agreement at the end of the Employment Term, the Company shall pay the
Executive (i) for twelve months following the date of termination of the
Employment Term, an amount equal to the sum of his Reference Salary plus his
Reference Bonus payable in equal amounts over a twelve month period, in
accordance with the Company's normal payroll practices and (ii) for six months
thereafter, an amount equal to one-half times the sum of the Reference Salary
plus the Reference Bonus, payable in the same manner over a six month period;
provided, however, that if a Change of Control occurs while the Executive is
receiving severance payments pursuant to this Section, the remaining severance
payments shall be payable to the Executive in one lump sum. In addition, the
Executive and the Executive's dependents will, to the extent participating
immediately prior to the date of termination, continue to participate in all
welfare plans (other than the split dollar life insurance policy) for the period
of eighteen months from the date of termination of the Employment Term or such
longer period with respect to any welfare plan as is then the policy of the
Company with respect to senior officers following such a termination, provided,
however, that in the event the Executive obtains other employment that offers
substantially similar or improved benefits, as to any particular welfare plan,
such continuation of coverage by the Company for such benefits under such plan
shall immediately cease. To the extent such coverage cannot be provided under
the Company's welfare benefit plans without jeopardizing the tax status of such
plans, for underwriting reasons or because of the tax impact on the Executive,
the Company shall pay the Executive an amount such that the Executive can
purchase such benefits separately
Section 7. No Mitigation/No Offset/Release
(a) In the event of any termination of employment hereunder, the Executive
shall be under no obligation to seek other employment and, except as
provided in Section 6.2 (b) hereof, there shall be no offset against any
amounts due the Executive under this Agreement on account of any
remuneration attributable to any subsequent employment that the Executive
may obtain. The amounts payable hereunder shall not be subject to setoff,
counterclaim, recoupment, defense or other right which the Company may
have against the Executive or others.
13
(b) Any amounts payable and benefits or additional rights provided to
the Executive from a termination due to Disability pursuant to
Section 6.2 or pursuant to Section 6.3 beyond Accrued Obligations
and amounts or rights due under law, and, in the case of a
termination due to Disability pursuant to Section 6.2 or in the case
of Section 6.3, beyond the sum of any amounts due (without execution
of a release) under the Company severance program then in effect,
shall only be payable if the Executive delivers to the Company a
release of all claims of the Executive (other than those
specifically payable or providable hereunder on or upon the
applicable type of termination and any rights of indemnification
under the Company's organizational documents) with regard to the
Company, its subsidiaries and related entities and their respective
past or present officers, directors and employees in substantially
the form attached hereto as Exhibit C.
(c) Upon any termination of employment, upon the request of the Company,
the Executive shall deliver to the Company a resignation from all
offices and directorships and fiduciary positions of the Executive
in which the Executive is serving with, or at the request of, the
Company or its subsidiaries, affiliates or benefit plans.
(d) The amounts and benefits provided under Section 6 hereof are
intended to be inclusive and not duplicative of the amounts and
benefits due under the Company's employee benefit plans and programs
to the extent they are duplicative.
8. Noncompetition and Confidentiality
8.1 Confidential Information. The Executive shall not, without the
prior written consent of the Company, communicate or divulge (other than in the
regular course of the Company's business) to anyone other than the Company, its
subsidiaries and those designated by it, any confidential information, knowledge
or data relating to the Company or any of its subsidiaries or affiliates, or to
any of their respective businesses, obtained by the Executive before or during
the Employment Term from the Company or any of its subsidiaries, except to the
extent (A) the Executive determines in good faith that it is in the best
interest of the Company to do so, (B) the Executive is compelled pursuant to an
order of a court or other body having jurisdiction over such matter to do so (in
which case the Company shall be given prompt notice of such intention to divulge
and an opportunity to object to such disclosure), or (C) such information,
knowledge or data is public knowledge or generally known within the Company's
industry other than through improper disclosure by the Executive.
8.2 Agreement Not to Compete.
(a) Until the eighteen month anniversary of the date on which the
Company makes its final Base Salary payment to the Executive
pursuant to this Agreement, the
14
Executive will not (other than on behalf of the Company) directly or
indirectly;
(i) as an individual proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender,
consultant or in any other capacity whatsoever (other than as
the holder of not more than three percent of the total
outstanding stock of a publicly held company), engage in any
business which competes directly with the Company in the
generic drug business (provided that a business which derives
less than 20% of its revenues from generic drug products will
not be deemed to be competing directly with the Company) or
has products in the iron management field; or
(ii) recruit, solicit or induce, or attempt to induce, any
employee or employees of the Company (other than his personal
secretary) to terminate their employment with, or otherwise
cease their relationship with, the Company.
(b) If any restriction set forth in Section 8.2 hereof is found by any
court of competent jurisdiction or arbitrator to be unenforceable
because it extends for too long a period of time or over too great a
range of activities or in too broad a geographic area, it shall be
interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
8.3 Remedies. The restrictions contained in Sections 8.1 and 8.2
hereof are necessary for the protection of the business and goodwill of the
Company and are considered by the Executive to be reasonable to such purpose.
The Executive agrees that any breach of Sections 8.1 or 8.2 hereof will cause
the Company substantial and irreparable damage and therefore, in the event of
any such breach, in addition to such other remedies which may be available, the
Company shall have the right to seek specific performance and injunctive relief.
In no event shall an asserted violation of the provisions of Sections 8.1 or 8.2
hereof constitute a basis for deferring or withholding any amounts otherwise
payable to the Executive under this Agreement.
8.4 Delivery of Documents. Upon termination of the Executive's
employment with the Company, the Executive shall promptly deliver to the Company
all records, files, memoranda, notes, data, reports, price lists, customer
lists, plans, computer programs, software, software documentation, laboratory
and research notebooks and other documents (and all copies or reproductions of
such materials in his possession or control) belonging to the Company.
15
9. Assignment
9.1 Assignment by the Company. This Agreement may and shall be
assigned or transferred to, and shall be binding upon and shall inure to the
benefit of, any successor of the Company, and any such successor shall be deemed
substituted for all purposes of the "Company" under the terms of this Agreement.
As used in this Agreement, the term "successor" shall mean any person, firm,
corporation or business entity which at any time, whether by merger, purchase,
or otherwise, acquires all or substantially all of the assets of the Company.
Notwithstanding such assignment, the Company shall remain, with such successor,
jointly and severally liable for all its obligations hereunder. Except as herein
provided, this Agreement may not otherwise be assigned by the Company.
9.2 Assignment by the Executive. This Agreement is not assignable by
the Executive. This Agreement shall inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors, and
administrators, successors, heirs, distributees, devisees, and legatees. If the
Executive should die while any amounts payable to the Executive hereunder remain
outstanding, all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, in the absence of such designee, to the
Executive's estate.
10. Legal Remedies
10.1 Payment of Legal Fees. If the Executive sues to collect or
negotiates and reaches a settlement for any part or all of the payments provided
for hereunder (or otherwise successfully enforces the terms of this Agreement)
by or through a lawyer or lawyers, the Company shall advance all reasonable
costs of such collection or enforcement, including reasonable legal fees and
disbursements and other fees and expenses which the Executive may incur,
promptly after submission of documentation reasonably acceptable to the Company
in respect of such costs and expenses. All amounts paid by the Company shall
promptly be refunded to the Company if and when a court of competent
jurisdiction issues an unappealable order to the effect that the Company is
entitled to have such sums refunded. In addition, the Company shall reimburse
the Executive for his legal fees incurred in connection with the negotiation of
this Agreement.
10.2 Notice. Any notices, requests, demands, or other communications
provided for by this Agreement shall be sufficient if in writing and if
delivered personally, sent by telecopier, sent by an overnight service or sent
by registered or certified mail. Notice to the Executive not delivered
personally (or by telecopy where the Executive is known to be) shall be sent to
the last address on the books of the Company, and notice to the Company not
delivered personally (or by telecopy to the known personal telecopy of the
person it is being sent to) shall be sent to it at its principal office. All
notices to the Company shall be delivered to the Chief Executive Officer with a
copy to the senior legal officer. Delivery shall be deemed to occur on the
earlier of actual receipt or tender and rejection by the intended recipient.
16
11. Miscellaneous
11.1 Entire Agreement. This Agreement, except to the extent
specifically provided otherwise herein, supersedes any prior agreements or
understandings, including but not limited to the letter of employment from the
Company to the Executive, dated April 17, 1995 and the employment agreement
dated May 1, 1995, oral or written, between the parties hereto or between the
Executive and the Company, with respect to the subject matter hereof and
constitutes the entire Agreement of the parties with respect to the subject
matter hereof. To the extent any severance plan or program of the Company that
would apply to the Executive is more generous to the Executive than the
provisions hereof, the Executive shall be entitled to any additional payments or
benefits which are not duplicative, but shall otherwise not be eligible for such
plan or program.
11.2 Modification. This Agreement shall not be varied, altered,
modified, canceled, changed, or in any way amended, nor any provision hereof
waived, except by mutual agreement of the parties in a written instrument
executed by the parties hereto or their legal representatives.
11.3 Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect.
11.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
11.5 Tax Withholding. The Company may withhold from any benefits
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
11.6 Beneficiaries. The Executive may designate one or more persons
or entities as the primary and/or contingent beneficiaries of any amounts to be
received under this Agreement. Such designation must be in the form of a signed
writing acceptable to the Board or the Board's designee. The Executive may make
or change such designation at any time.
11.7 Representation. The Executive represents that the Executive's
employment by the Company and the performance by the Executive of his
obligations under this Agreement do not, and shall not, breach any agreement
that obligates him to keep in confidence any trade secrets or confidential or
proprietary information of his or of any other party, to write or consult to any
other party or to refrain from competing, directly or indirectly, with the
business of any other party. The Executive shall not disclose to the Company,
and the Company shall not request that the Executive disclose, any trade secrets
or confidential or proprietary information of
17
any other party.
11.8 Maximum Payment. Notwithstanding anything herein to the
contrary, if it is determined that any payment made to the Executive, whether
pursuant to the terms of this Agreement or otherwise, would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended, or any interest or penalties with respect to such excise tax (such
excise tax, together with any interest or penalties thereon, is herein referred
to as an "Excise Tax"), then the Executive shall be entitled to an additional
payment (a "Gross-Up Payment") in an amount that will place him in the same
after-tax economic position that he would have enjoyed if the Excise Tax had not
applied. The amount of the Gross-Up Payment shall be determined by the
nationally recognized firm of accountants serving as the Company's independent
auditors immediately prior to the Change of Control which resulted in the
application of the Excise Tax, in their sole discretion.
12. Governing Law
The provisions of this Agreement shall be construed and enforced in
accordance with the laws of the state of New Jersey, without regard to any
otherwise applicable principles of conflicts of laws.
18
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement, as of the day and year first above written.
/s/ XXXXXXX XXXXXXX
-----------------------------------------
XXXXXXX XXXXXXX
SCHEIN PHARMACEUTICAL, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
19
EXHIBIT A
Duties, Authorities and Responsibilities
The individuals responsible for the management and decision making for the
following functions shall report to the Executive:
Finance and Administration
Manufacturing Operations
Distribution
Brand Business
Generic Sales and Marketing
Research and Development
Business Development
International
20
EXHIBIT B
PROMISSORY NOTE
$2,234,375.00 November 18, 1999
FOR VALUE RECEIVED, the undersigned, Xxxxxxx Xxxxxxx (the "Borrower"),
promises to pay to the order of Schein Pharmaceutical, Inc. (the "Company"), the
principal amount of two million two hundred thirty four thousand three hundred
seventy five dollars ($2,234,375.00) (the "Principal Amount") and all accrued
interest thereon in accordance with the terms hereof (the "Note Indebtedness").
Interest. Interest shall accrue on the Principal Amount and Accrued
Interest (as hereinafter defined) outstanding from time to time at an interest
rate equal to the interest rate payable from time to time by the Company under
its principal bank revolving credit facility. Interest shall be payable annually
on the fifth business day after the Borrower receives his annual bonus
compensation, if any (the "Annual Bonus"), for serving in his capacity as an
employee of the Company (each such date, a "Payment Date"). If the after-tax
amount of any Annual Bonus is insufficient to pay all interest accrued on the
immediately following Payment Date, the unpaid portion will continue to accrue
("Accrued Interest") until the earlier of (i) such time as such Accrued Interest
is paid pursuant to the immediately preceding sentence and (ii) the Maturity
Date, except as otherwise provided herein.
Term. The Note Indebtedness shall become due and payable in full on the
earlier of November 18, 2004 and the date six months following the date of
termination of the Borrower's employment with the Company by the Company for
Cause or the Borrower without Good Reason (as such terms are defined in the
Employment Agreement dated as of the date hereof between the Borrower and the
Company (the "Employment Agreement") (the "Maturity Date"). The Borrower shall
have the right to prepay this Promissory Note, in full or in part, at any time
without premium or penalty.
Prepayment. The proceeds of this Promissory Note were used to purchase
250,000 shares of common stock, par value $.01 per share, of the Company (the
"Incentive Shares") pursuant to the terms of the Employment Agreement. In the
event that all or from time to time a portion of the Incentive Shares are sold
by the Borrower prior to the repayment of the Note Indebtedness, the proceeds
from any such sale shall be used to repay all or a portion of the Note
Indebtedness equal to the amount of the Note Indebtedness then outstanding
multiplied by a fraction, the numerator of which is the number of Incentive
Shares sold and the denominator of which is the total number of Incentive Shares
held by the Borrower immediately prior to such sale. Each such payment shall be
applied to payment of principal of and interest on this Promissory Note in
proportion to the respective unpaid amounts thereof on the date of payment. The
Borrower shall give the Company written notice of any proposed sale of Incentive
Shares not less than five business days prior to such sale.
Representations and Warranties. The Borrower represents to the Company
that he has the legal capacity to execute this Promissory Note and to carry out
all of the terms, conditions, covenants and provisions contained herein and that
there is no state of facts existing on the date hereof which would constitute an
Event of Default (as hereinafter defined).
Default. Each of the following events or conditions constitutes an "Event
of Default":
a. Failure by the Borrower to make any payment of principal or interest
under this Promissory Note on or before thirty (30) days after the date
such payment is due.
b. Failure by the Borrower to comply with any other provision of this
Promissory Note and the continuance of such failure for thirty (30) days
or more after written notice from the Company.
c. Any representation, warranty or other statement by or on behalf of the
Borrower contained in this Promissory Note is false or misleading in any
material respect when made.
d. The Borrower becomes insolvent or bankrupt or makes an assignment for
the benefit of creditors, or consents to the appointment of a trustee,
receiver or liquidator.
e. Bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings are instituted by or against the Borrower, which proceedings
are not dismissed or stayed within sixty (60) days after they are
instituted.
If at any time during the term of this Agreement, there shall have occurred an
Event of Default, the Company shall have at any time thereafter the rights and
remedies provided by law, and without limiting the generality of the foregoing,
(i) the right to declare all amounts then remaining unpaid under this Promissory
Note to be immediately due and payable, and (ii) the right to take any available
action or proceeding, at law or in equity, which it deems necessary or advisable
for its protection and security. During the continuance of an Event of Default,
the Company shall have the right to offset any amounts owing by the Company to
the Borrower for any reason, including but not limited to, salary or bonus,
against any outstanding Note Indebtedness. If any action is brought to collect
this Promissory Note, the Company shall be entitled to recover from the Borrower
all the costs and expenses of that action, including, but not limited to,
reasonable attorney's fees, and the Company shall be entitled to judgment for
those additional amounts (in addition to the unpaid Note Indebtedness).
Waiver of Rights. No failure or delay on the part of the Company to
exercise any right or remedy granted to the Company in this Promissory Note or
otherwise provided by law shall
operate as a waiver of any such right or remedy. The Borrower hereby waives
presentment, demand, notice of dishonor, notice of protest and all other notices
and demands in connection with any delivery, acceptance, performance or default
of this Promissory Note and agrees that this Promissory Note may be modified
only by an agreement in writing signed by the Borrower and the Company.
Governing Law. This Promissory Note shall be governed and interpreted in
accordance with the laws of the state of New Jersey, without regard to any
otherwise applicable principles of conflicts of laws.
Accepted and Acknowledged by: Accepted and Acknowledged by:
SCHEIN PHARMACEUTICAL, INC. BORROWER
By:_________________________________ ___________________________________
Name: Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
EXHIBIT C
GENERAL RELEASE OF ALL CLAIMS
This General Release of all Claims (this "Agreement") is entered into by
and among Xxxxxxx Xxxxxxx (the "Executive"), and Schein Pharmaceutical, Inc., a
Delaware corporation (as it may be renamed from time to time, and including its
subsidiaries and affiliates) (collectively, the "Corporation"), effective as of
|_|.
In consideration of the promises set forth in the Employment Agreement
between the Executive and the Corporation, dated November 18, 1999, (the
"Employment Agreement"), as well as any promises set forth in this Agreement,
the Executive and the Corporation agree as follows:
(1) Return of Property
All Corporation files, access keys, desk keys, ID badges and credit cards,
and such other property of the Corporation as the Corporation may
reasonably request, in the Executive's possession must be returned no
later than the date of the Executive's termination from the Corporation
(the "Termination Date").
(2) General Release and Waiver of Claims
Except as provided in the last sentence of this paragraph (2), in
consideration of the payments made and to be made, and benefits provided
and to be provided, to the Executive pursuant to the Employment Agreement,
the Executive hereby unconditionally and forever releases, discharges and
waives any and all claims of any nature whatsoever, whether legal,
equitable or otherwise, which the Executive may have against the
Corporation arising at any time on or before the Termination Date, other
than the Excluded Obligations. This release of claims extends to any and
all claims of any nature whatsoever, other than with respect to the
Excluded Obligations, whether known, unknown or capable or incapable of
being known as of the Termination Date or thereafter. This Agreement is a
release of all claims of any nature whatsoever by the Executive against
the Corporation, other than with respect to the Excluded Obligations, and
includes, other than as herein provided, any and all claims, demands,
causes of action, liabilities whether known or unknown including those
caused by, arising from or related to the Executive's employment
relationship with the Corporation including, without limitation, any and
all alleged discrimination or acts of discrimination which occurred or may
have occurred on or before the Termination Date based upon race, color,
sex, creed, national origin, age, disability or any other violation of any
Equal Employment Opportunity Law, ordinance, rule, regulation or order,
including, but not limited to, Title VII of the Civil Rights Act of 1964,
as amended; the Civil Rights Act of 1991; the Age Discrimination in
Employment Act, as amended (as further described in Section 4 below); the
Americans with Disabilities Act; claims under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"); or any other Federal,
state or local laws or regulations regarding employment discrimination or
termination of employment. This also includes claims
for wrongful discharge, fraud, or misrepresentation under any statute,
rule, regulation or under the common law.
The Executive agrees and understands and knowingly agrees to this release
because it is his or her intent in executing this Agreement to forever
discharge the Corporation from any and all present, future, foreseen or
unforeseen causes of action except for the Excluded Obligations.
Notwithstanding the foregoing, the Executive does not release, discharge
or waive any rights (the "Excluded Obligations") (i) to payments and
benefits provided for in the applicable subsection of Section 6 of the
Employment Agreement, (ii) to payments provided for in Section 10.1 and
Section 11.8 of the Employment Agreement and (iii) to indemnification that
he or she may have under the By-Laws of the Corporation, the laws of the
State of Delaware, any indemnification agreement between the Executive and
the Corporation or any insurance coverage maintained by or on behalf of
the Corporation.
(3) Release and Waiver of Claims Under the Age Discrimination in Employment
Act
The Executive acknowledges that the Corporation advised him or her to
consult with an attorney of his or her choosing, and through this
Agreement advises him or her to consult with his or her attorney with
respect to possible claims under the Age Discrimination in Employment Act
of 1967, as amended ("ADEA"), and the Executive acknowledges that he or
she understands that ADEA is a Federal statute that prohibits
discrimination, on the basis of age, in employment, benefits, and benefit
plans. The Executive wishes to waive any and all claims under the ADEA
that he or she may have, as of the Termination Date, against the
Corporation, and their respective shareholders, employees, or successors,
and hereby waives such claims. The Executive further understands that by
signing this Agreement he or she is in fact waiving, releasing and forever
giving up any claim under the ADEA against the Corporation that may have
existed on or prior to the Termination Date. The Executive acknowledges
that the Corporation have informed him or her that he or she has, at his
or her option, twenty-one (21) days following the Termination Date in
which to sign the waiver of this claim under ADEA, and he or she does
hereby knowingly and voluntarily waive said twenty-one (21) day period.
The Executive also understands that he or she has seven (7) days following
the date on which he or she signs this Agreement within which to revoke
the release contained in this paragraph by providing to the Corporation a
written notice of his or her revocation of the release and waiver
contained in this paragraph. The Executive further understands that this
right to revoke the release contained in this paragraph relates only to
this paragraph and does not act as a revocation of any other term of this
Agreement.
(4) Proceedings
The Executive has not filed, and agrees not to initiate or cause to be
initiated on his or her behalf, any complaint, charge, claim or proceeding
against the Corporation before any local, state or Federal agency, court
or other body relating to his or her employment or the termination of his
or her employment, other than with respect to the Excluded Obligations
(each individually, a "Proceeding"), and agrees not to voluntarily
participate in any Proceeding. The Executive waives any right he or she
may have to benefit in any manner from any relief (whether monetary or
otherwise) arising out of any Proceeding.
(5) Remedies
In the event the Executive initiates or voluntarily participates in any
Proceeding, or if he or she fails to abide by any of the terms of this
Agreement, or if he or she revokes the ADEA release contained in Paragraph
3 of this Agreement within the seven-day period provided under Paragraph
3, the Corporation may, in addition to any other remedies it may have,
reclaim any amounts paid to him or her under the termination provisions of
the Employment Agreement or terminate any benefits or payments that are
subsequently due under the Employment Agreement, without waiving the
release granted herein. The Executive acknowledges and agrees that the
remedy at law available to the Corporation for breach of any of his or her
post-termination obligations under the Employment Agreement or his or her
obligations under Paragraphs 2, 3 and 4 of this Agreement would be
inadequate and that damages flowing from such a breach may not readily be
susceptible to being measured in monetary terms. Accordingly, the
Executive acknowledges, consents and agrees that, in addition to any other
rights or remedies which the Corporation may have at law, in equity or
under this Agreement, upon adequate proof of his or her violation of any
such provision of this Agreement, the Corporation shall be entitled to
immediate injunctive relief and may obtain a temporary order restraining
any threatened or further breach, without the necessity of proof of actual
damage.
The Executive understands that by entering into this Agreement he or she
will be limiting the availability of certain remedies that he or she may
have against the Corporation and limiting also his or her ability to
pursue certain claims against the Corporation.
(6) Severability Clause
In the event any provision or part of this Agreement is found to be
invalid or unenforceable, only that particular provision or part so found,
and not the entire Agreement, will be inoperative.
(7) Non-Admission
Nothing contained in this Agreement will be deemed or construed as an
admission of wrongdoing or liability on the part of the Corporation.
(8) Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey, applicable to agreements made and to be
performed in that State, without regard to conflicts of law principles;
and the parties agree to the jurisdiction of the U.S. District Court for
the District of New Jersey, and agree to appear in any action in such
courts by service of process by certified mail, return receipt requested,
at the following addresses:
To the Corporation: 000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
To the Executive: [Insert Address]
THE EXECUTIVE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT AND THAT HE FULLY
KNOWS, UNDERSTANDS, AND APPRECIATES ITS CONTENTS, AND THAT HE HEREBY EXECUTES
THE SAME AND MAKES THIS AGREEMENT AND THE RELEASE AND AGREEMENTS PROVIDED FOR
HEREIN VOLUNTARILY AND OF HIS OWN FREE WILL.
IN WITNESS WHEREOF, the parties have executed this as of the date first
set forth above.
SCHEIN PHARMACEUTICAL, INC.
By:_________________________________________
Name:
Title:
EXECUTIVE
____________________________________________
Xxxxxxx Xxxxxxx
