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Exhibit 10.14
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of the ___ day of _______,
_____, by and between Ribapharm Inc. (the "Company") and Xxxxx X. Xxxxxx, an
individual (the "Executive").
WHEREAS, the Company desires to retain the services of the
Executive as Senior Vice President, General Counsel and Secretary of the Company
on the terms set forth herein;
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the threat of an unsolicited takeover of the Company may occur
which can result in significant distractions of its management personnel because
of the uncertainties inherent in such a situation;
WHEREAS, the Board of the Company has determined that it is
essential and in the best interest of the Company and its stockholders to retain
the services of its key management personnel in the event of a threat of a
change in control of the Company and to ensure their continued dedication and
efforts in such event without undue concern for their personal financial and
employment security; and
WHEREAS, in order to induce the Executive to remain in the
employ of the Company, particularly in the event of a threat of a change in
control of the Company, the Company desires by this writing to set forth the
continued employment relationship of the Executive with the Company, and the
Executive is willing to continue such employment relationship on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the respective agreements
of the parties contained herein, it is agreed as follows:
1. Term. The initial term of employment under this Agreement shall be for
the period commencing on the date hereof, and ending ________ __, ______;
provided, however, that the term of this Agreement shall be automatically
extended for one (1) year on ________ __, ____, and on each _________ __
thereafter unless either the Company or the Executive shall have given written
notice to the other at least ninety (90) days prior thereto that the term of
this Agreement shall not be so extended; and provided, further, that
notwithstanding any such notice by the Company given after a Change in Control
not to extend, the term of this Agreement shall not expire prior to the
expiration of the third anniversary of a Change in Control (as hereinafter
defined). Notwithstanding the foregoing, in no event shall the term of this
Agreement extend beyond the first day of the month following the month in which
the Executive attains age 65.
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2. Employment.
(a) The Executive shall be employed as the Senior Vice President,
General Counsel and Secretary of the Company or such other senior executive
capacity as may be mutually agreed to in writing by the parties. The
Executive shall perform the duties, undertake the responsibilities and
exercise the authority customarily performed, undertaken and exercised by
persons situated in a similar executive capacity. He shall also promote, by
entertainment or otherwise, the business of the Company.
(b) Excluding periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote reasonable attention
and time during usual business hours to the business and affairs of the
Company to the extent necessary to discharge the responsibilities assigned
to the Executive hereunder. The Executive may (i) serve on corporate, civil
or charitable boards of committees, (ii) manage personal investments and
(iii) deliver lectures and teach at education institutions, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities hereunder.
3. Base Salary. The Company agrees to pay or cause to be paid to the
Executive during the term of this Agreement a base salary at the rate of
$___________ per annum or such larger amount as the Board may from time to time
determine (hereinafter referred to as the "Base Salary"). Such Base Salary shall
be payable in accordance with the Company's customary practices applicable to
its executives. Such rate of salary, or increased rate of salary, if any, as the
case may be, shall be reviewed at least annually by the respective Board and may
be further increased (but not decreased) in such amounts as the respective Board
in its discretion may decide.
4. Employee Benefits. The Executive shall be entitled to participate in all
employee benefit plans, practices and programs maintained by the Company and
made available to employees generally including, without limitation all pension,
retirement, profit sharing, savings, medical, hospitalization, disability,
dental, life or travel accident insurance benefit plans. The Executive's
participation in such plans, practices and programs shall be on the same basis
and terms as are applicable to employees of the Company generally.
5. Executive Benefits. The Executive shall be entitled to participate in
all executive benefit or incentive compensation plans now maintained or
hereafter established by the Company for the purpose of providing compensation
and/or benefits to executives of the Company including, but not limited to, the
Company's 401(k) and Deferred Compensation Plans and any supplemental
retirement, salary continuation, stock option, deferred compensation,
supplemental medical or life insurance or other bonus or incentive compensation
plans. Unless otherwise provided herein, the Executive's participation in such
plans shall be on the same basis and terms as other similarly situated
executives of the Company, but in no event on a basis less favorable in terms of
benefit levels or reward opportunities applicable to the Executive as in effect
on the date
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hereof. No additional compensation provided under any of such plans shall be
deemed to modify or otherwise affect the terms of this Agreement or any of the
Executive's entitlements hereunder.
6. Other Benefits.
(a) Fringe Benefits and Perquisites. The Executive shall be
entitled to all fringe benefits and perquisites (e.g. Company cars, club
dues, physical examinations, financial planning and tax preparation
services) generally made available by the Company to its executives.
(b) Expenses. The Executive shall be entitled to receive prompt
reimbursement of all expenses reasonably incurred by him in connection with
the performance of his duties hereunder or for promoting, pursuing or
otherwise furthering the business or interests of the Company.
(c) Office and Facilities. The Executive shall be provided with
an appropriate office in Costa Mesa, California, or such other place as may
be mutually agreed upon and with such secretarial and other support
facilities as are commensurate with the Executive's status with the Company
and adequate for the performance of his duties hereunder.
7. Vacation and Sick Leave. At such reasonable times as the Board shall in
its discretion permit, the Executive shall be entitled, without loss of pay, to
absent himself voluntarily from the performance of his employment under this
Agreement, provided that:
(a) The Executive shall be entitled to annual vacation in
accordance with the policies as periodically established by the Board for
similarly situated executives of the Company, which shall in no event be
less than four weeks per year.
(b) The Board shall be entitled to grant to the Executive a leave
or leaves of absence with or without pay at such time or times and upon
such terms and conditions as the Board in its discretion may determine.
(c) The Executive shall be entitled to sick leave (without loss
of pay) in accordance with the Company's policies as in effect from time to
time.
8. Termination. (a) The Executive's employment hereunder may be terminated
under the following circumstances.
(1) Disability. The Company may terminate the Executive's
employment after having established the Executive's Disability. For
purposes of this Agreement, "Disability" means a physical or mental
infirmity which impairs the Executive's ability to substantially perform
his duties under this Agreement which continues for a period of at least
one hundred eighty (180) consecutive
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days. The Executive shall be entitled to the compensation and benefits
provided for under this Agreement for any period during the term of this
Agreement and prior to the establishment of the Executive's Disability
during which the Executive's ability to substantially perform his duties
under this Agreement is impaired due to a physical or mental infirmity.
Notwithstanding anything contained in this Agreement to the contrary, until
the Termination Date specified in a Notice of Termination (as each term is
hereinafter defined) relating to the Executive's Disability, the Executive
shall be entitled to return to his position with the Company as set forth
in this Agreement in which event no Disability of the Executive will be
deemed to have occurred.
(2) Cause. The Company may terminate the Executive's employment
for "Cause". A termination for Cause is a termination evidenced by a
resolution adopted in good faith by two-thirds (2/3) of the Board that the
Executive (i) willfully and continually failed to substantially perform his
duties with the Company (other than a failure resulting from the
Executive's incapacity due to physical or mental illness) which failure
continued for a period of at least thirty (30) days after a written notice
of demand for substantial performance has been delivered to the Executive
specifying the manner in which the Executive has failed to substantially
perform, (ii) willfully engaged in conduct which is demonstrably and
materially injurious to the Company, monetarily or otherwise, or (iii) has
been indicted or convicted of an act which is defined as a felony under
federal or state law or otherwise willfully engaged in other acts of
misfeasance in connection with the performance of his duties; provided,
however, that no termination of the Executive's employment shall be for
Cause as set forth in clause (ii) or (iii) above until (x) there shall have
been delivered to the Executive a copy of a written notice setting forth
that the Executive was guilty of the conduct set forth in clause (ii) and
specifying the particulars thereof in detail, and (y) the Executive shall
have been provided an opportunity to be heard by the Board (with the
assistance of the Executive's counsel if the Executive so desires). No act,
nor failure to act, on the Executive's part, shall be considered "willful"
unless he has acted or failed to act, with an absence of good faith and
without a reasonable belief that his action or failure to act was in the
best interest of the Company. Notwithstanding anything contained in this
Agreement to the contrary, no failure to perform by the Executive after
Notice of Termination is given by the Executive shall constitute Cause for
purposes of this Agreement.
(3) Good Reason. The Executive may terminate his employment for
"Good Reason". For purposes of this Agreement, Good Reason shall mean the
occurrence after a Change in Control (as hereinafter defined in this
Section 8(b)) of any of the Events or conditions described in Subsections
(i) through (viii) hereof:
(i) a change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which, in the
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Executive's reasonable judgment, does not represent a promotion from
his status, title, position or responsibilities as in effect
immediately prior to the Change in Control; the assignment to the
Executive of any duties or responsibilities which, in the Executive's
reasonable judgment, are inconsistent with such status, title,
position or responsibilities immediately prior to the Change in
Control; or any removal of the Executive from or failure to reappoint
or reelect him to any of such positions, except in connection with the
termination of his employment for Disability, Cause, as a result of
his death or by the Executive other than for Good Reason;
(ii) a reduction in the Executive's Base Salary or a failure by
the Company to increase the Executive's Base Salary within any twelve
(12) month period by the average percentage increase during such
period of the base salaries of similarly situated executives;
(iii) the Company's requiring the Executive to be based at any
place outside a 30-mile radius from Costa Mesa, California, except for
reasonably required travel on the Company's business which is not
materially greater than such travel requirements prior to the Change
in Control;
(iv) the failure by the Company to (A) continue in effect any
material compensation or benefit plan in which the Executive was
participating at the time of the Change in Control, including, but not
limited to, the Company's Deferred Compensation Plan, 401(k) Plan, and
any other comparable plans established or maintained by the Company in
replacement thereof, or (B) provide the Executive with compensation
and benefits at least equal (in terms of benefit levels and/or reward
opportunities) to those provided for under each other employee benefit
plan, program and practice as in effect immediately prior to the
Change in Control (or as in effect following the Change in Control, if
greater);
(v) the insolvency or the filing (by any party, including the
Company) of a petition for bankruptcy of the Company;
(vi) any material breach by the Company of any material provision
of this Agreement;
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(vii) any purported termination of the Executive's
employment for Cause by the Company which does not comply with
the terms of Section 8 of this Agreement; and
(viii) the failure of the Company to obtain an agreement,
satisfactory to the Executive, from any successor or assign of
the Company to assume and agree to perform this Agreement, as
contemplated in Section 11 hereof.
Any event or condition described in this Section 8(a)(3)(i)
through (viii) which occurs prior to a Change in Control but which (x)
was at the request of a third party who has taken steps reasonably
calculated to effect a Change in Control, or (y) otherwise arose in
connection with a Change in Control, shall constitute Good Reason for
purposes of this Agreement notwithstanding that it occurred prior to a
Change in Control. The Executive's right to terminate his employment
pursuant to this Section 8(a) shall not be affected by his incapacity
due to physical or mental illness. "Good Reason" shall not include
acts not taken in bad faith which are cured by the Company in all
respects not later than thirty (30) days from the date of receipt by
the Company of a Notice of Termination from the Executive.
(b) Voluntary Termination. The Executive may voluntarily terminate his
employment hereunder at any time. If the Executive voluntarily terminates
his employment for any reason or without reason during the 60-day period
which commences on the date which is six (6) months following the date of a
Change in Control, it shall be referred to as a "Limited Period
Termination."
(c) For purposes of this Agreement, a "Change in Control" shall mean
any of the following:
(1) an acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of the
Exchange Act) immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more
than fifty percent (50%) of the then outstanding shares of common stock (the
"Shares") or the combined voting power of the Company's then outstanding Voting
Securities or more than fifty percent (50%) of the then outstanding Shares or
the combined voting power of the Voting Securities of any entity (a "Parent")
that owns more than fifty percent (50%) of the Company's then outstanding Shares
or the combined voting power of the Company's then outstanding Voting
Securities; provided, however, in determining whether a Change in Control has
occurred pursuant to this Section 8(e)(1), Shares or Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a
trust forming a part thereof) maintained by (A)
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the Company or a Parent or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or equity interest
is owned, directly or indirectly, by the Company (for purposes of this
definition, a "Related Entity"), (ii) the Company, ICN Pharmaceuticals, Inc.
("ICN") or any Related Entity, or (iii) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(2) the consummation of:
(i) a merger, consolidation or reorganization with or into the
Company or a Parent (a "Merger"), unless such Merger is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a Merger where:
(A) the stockholders of the Company or a Parent, as the case
may be, immediately before such Merger own directly or indirectly immediately
following such Merger, at least fifty percent (50%) of the combined voting power
of the outstanding voting securities of (x) the corporation resulting from such
Merger (the "Surviving Corporation"), if fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the Surviving
Corporation is not beneficially owned, directly or indirectly by another Person
(a "Controlling Corporation"), or (y) if there are one or more Controlling
Corporations, the ultimate Controlling Corporation; and
(B) the individuals who, as of _________, _____, are members
of the Board of Directors of the Company or a Parent, as the case may be, (the
"Incumbent Boards"), immediately prior to the execution of the agreement
providing for such Merger, constitute at least a majority of the members of the
board of directors of (x) the Surviving Corporation, if there is no Controlling
Corporation, or (y) if there are one or more Controlling Corporations, the
ultimate Controlling Corporation;
(ii) a complete liquidation or dissolution of the Company or a
Parent; or
(iii) the sale or other disposition of all or substantially all
of the assets of the Company or a Parent to any Person (other than a transfer to
a Related Entity, or in the case of the Company, to ICN under conditions that
would constitute a Non-Control Transaction, with the disposition of assets being
regarded as a Merger for this purpose, or the distribution to the stockholders
of the Company or ICN of the stock of a Related Entity (including, without
limitation, the Company) or any other assets); or
(3) the individuals who are members of the Incumbent Board cease for
any reason to constitute at least two-thirds (2/3) of the members of the Board
of Directors of the Company or a Parent, as the case may be, [or, following a
Merger which results in a Controlling Corporation, the board of directors of the
ultimate Controlling Corporation]; provided, however, that if the election, or
nomination for election by the Company's stockholders in the case of a Company
Merger or ICN's stockholders in the case of an ICN Merger, of any new director
was approved by a vote of at least two-thirds of the Incumbent Board, such new
director shall, for purposes of this Agreement, be considered as a member of the
Incumbent Board; provided
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further, however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Shares or
Voting Securities as a result of the acquisition of Shares or Voting Securities
by the Company which, by reducing the number of Shares or Voting Securities then
outstanding, increases the proportional number of shares Beneficially Owned by
the Subject Persons, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Shares or
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Shares or Voting Securities which increases the percentage of the then
outstanding Shares or Voting Securities Beneficially Owned by the Subject
Person, then a Change in Control shall occur.
(d) Notice of Termination. Any purported termination by the Company or
by the Executive shall be communicated by written Notice of Termination to
the other. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which indicates the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. For purposes of
this Agreement, no such purported termination of employment shall be
effective without such Notice of Termination.
(e) Termination Date, Etc. "Termination Date" shall mean in the case
of the Executive's death, his date of death, or in all other cases, the
date specified in the Notice of Termination subject to the following:
(1) if the Executive's employment is terminated by the
Company for Cause or due to Disability, the date specified in the
Notice of Termination shall be at least thirty (30) days from the date
the Notice of Termination is given to the Executive, provided that in
the case of Disability the Executive shall not have returned to the
full-time performance of his duties during such period of at least
thirty (30) days; and
(2) if the Executive's employment is terminated for Good
Reason or is a Limited Period Termination, the date specified in the
Notice of Termination shall not be more than sixty (60) days, and
shall not be less than thirty (30) days, from the date the Notice of
Termination is given to the Company.
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9. Compensation Upon Termination. Upon termination of the Executive's
employment during the term of this Agreement (including any extensions thereof),
the Executive shall be entitled to the following benefits:
(a) If the Executive's employment is terminated by the Company for
Cause or Disability or by the Executive (other than for Good Reason or a
Limited Period Termination), or by reason of the Executive's death, the
Company shall pay the Executive all amounts earned or accrued hereunder
through the Termination Date but not paid as of the Termination Date,
including (i) Base Salary, (ii) reimbursement for any and all monies
advanced or expenses incurred in connection with the Executive's employment
for reasonable and necessary expenses incurred by the Executive on behalf
of the Company for the period ending on the Termination Date, (iii)
vacation pay, (iv) any bonuses or incentive compensation and (v) any
previous compensation which the Executive has previously deferred
(including any interest earned or credited thereon) (collectively, "Accrued
Compensation"). In addition to the foregoing, if the Executive's employment
is terminated by the Company for Disability or by reason of the Executive's
death, the Company shall pay to the Executive or his beneficiaries an
amount equal to the annual bonus or incentive award that the Executive
would have been entitled to receive in respect of the fiscal year in which
the Executive's Termination Date occurs had he continued in employment
until the end of such fiscal year, calculated as if all performance targets
and goals (if applicable) had been fully met by the Company and by the
Executive, as applicable, for such year, multiplied by a fraction the
numerator of which is the number of days in such fiscal year through the
Termination Date and the denominator of which is 365 (a "Pro Rata Bonus").
Executive's entitlement to any other compensation or benefits shall be
determined in accordance with the Company's employee benefit plans and
other applicable programs and practices then in effect.
(b) If the Executive's employment by the Company shall be terminated
(1) by the Company other than for Cause, death or Disability, (2) by the
Executive for Good Reason, or (3) by the Executive as a Limited Period
Termination, then the Executive shall be entitled to the benefits provided
below:
(i) the Company shall pay the Executive all Accrued Compensation
and a Pro Rata Bonus;
(ii) the Company shall pay the Executive as severance pay and in
lieu of any further salary for periods subsequent to the Termination
Date, in a single payment an amount in cash equal to three (3) times
the sum of (A) the Executive's Base Salary at the highest rate in
effect at any time within the ninety (90) day period ending on the
date the Notice of Termination is given (or if the Executive's
employment is terminated after a Change in Control, the Executive's
Base Salary immediately prior to the Change in Control, if greater)
and (B) the "Bonus Amount" (as defined below). Notwithstanding the
foregoing, the amount to be paid
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under this Subsection (ii) shall be multiplied by a fraction (which in
no event shall be greater than one (1)), the numerator of which shall
be the number of months (for this purpose any partial month shall be
considered as a whole month) remaining until the Executive's 65th
birthday and the denominator of which shall be thirty-six (36). The
term "Bonus Amount" shall mean (x) the greatest amount of any annual
cash bonus or annual incentive compensation received by the Executive
during the three fiscal years immediately preceding the Termination
Date or (y) if no such bonus was received by the Executive during any
of such three years, then an amount equal to the Executive's maximum
annual bonus which could be awarded for the fiscal year in which the
Termination Date occurs had he continued in employment until the end
of such fiscal year, assuming all performance targets and goals (if
applicable) had been fully met by the Company and by the Executive, as
applicable, for such year;
(iii) for a number of months equal to the lesser of (A)
thirty-six (36) or (B) the number of months remaining until the
Executive's 65th birthday, the Company shall at its expense continue
on behalf of the Executive and his dependents and beneficiaries the
life insurance, disability, medical, dental and hospitalization
benefits which were being provided to the Executive at the time Notice
of Termination is given (or, if the Executive is terminated following
a Change in Control, the benefits provided to the Executive at the
time of the Change in Control, if greater). The benefits provided in
this Section 9(b)(iii) shall be no less favorable to the Executive, in
terms of amounts and deductibles and costs to him, than the coverage
provided the Executive under the plans providing such benefits at the
time Notice of Termination is given (or, if the Executive is
terminated following a Change in Control, at the time of the Change in
Control if more favorable to the Executive). The Company's obligation
hereunder with respect to the foregoing benefits shall be limited to
the extent that the Executive obtains any such benefits pursuant to a
subsequent employer's benefit plans, in which case the Company may
reduce the coverage of any benefits it is required to provide the
Executive hereunder as long as the aggregate coverage of the combined
benefit plans is no less favorable to the Executive, in terms of
amounts and deductibles and costs to him, than the coverage required
to be provided hereunder. This Subsection (iii) shall not be
interpreted so as to limit any benefits to which the Executive or his
dependents may be entitled under any of the Company's employee benefit
plans, programs or practices following the Executive's termination of
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employment, including without limitation, retiree medical and life
insurance benefits;
(iv) the Company shall pay in a single payment an amount in cash
equal to the excess of (A) the actuarial equivalent of the aggregate
retirement benefit the Executive would have been entitled to receive
under the Company's supplemental and excess retirement plans had (x)
the Executive remained employed by the Company for an additional three
(3) complete years of credited service (or until his 65th birthday, if
earlier), (y) his annual compensation during such period been equal to
his Base Salary (at the rate used for purposes of Subsection (ii)) and
the Bonus Amount, and (z) he been fully (100%) vested in his benefit
under each such retirement plan, over (B) the actuarial equivalent of
the aggregate retirement benefit the Executive is actually entitled to
receive under such retirement plans. For purposes of this Subsection
(iv), "actuarial equivalent" shall be determined in accordance with
the actuarial assumptions used for the calculation of benefits under
any retirement plan as applied prior to the Termination Date in
accordance with such plan's past practices (but shall in any event
take into account the value of any subsidized early retirement
benefit); and
(v) all restrictions on any outstanding awards granted by the
Company or any other subsidiaries of the Company (including restricted
stock awards) granted to the Executive shall lapse and such awards
shall become fully (100%) vested immediately, and all stock options
and stock appreciation rights granted to the Executive shall become
fully (100%) vested and shall become immediately exercisable.
(c) The amounts provided for in Sections 9(a) and 9(b)(i), (ii) and
(iv) shall be paid within five (5) days after the Executive's Termination
Date.
(d) The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of
any compensation or benefits provided to the Executive in any subsequent
employment.
10. Unauthorized Disclosure. The Executive shall not make any Unauthorized
Disclosure. For purposes of this Agreement, "Unauthorized Disclosure" shall mean
disclosure by the Executive without the consent of the Board to any person,
other than an employee of the Company or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Executive of his duties as an executive of the Company or as may be legally
required, of any confidential information obtained by the Executive while in the
employ
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of the Company (including, but not limited to, any confidential information with
respect to any of the Company's customers or methods of distribution) the
disclosure of which he knows or has reason to believe will be materially
injurious to the Company; provided, however, that such term shall not include
the use or disclosure by the Executive, without consent, of any information
known generally to the public (other than as a result of disclosure by him in
violation of this Section 10) or any information not otherwise considered
confidential by a reasonable person engaged in the same business as that
conducted by the Company.
11. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its successors and assigns and the Company shall
require any successor or assign to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession or assignment had
taken place. The term "the Company" as used herein shall include such
successors and assigns. The term "successors and assigns" as used herein
shall mean a corporation or other entity acquiring all or substantially all
the assets and business of the Company (including this Agreement) whether
by operation of law or otherwise.
(b) Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal personal representative.
12. Fees and Expenses. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Executive as they become due as a result of (i) the Executive's termination of
employment (including all such fees and expenses, if any, incurred in contesting
or disputing any such termination of employment), (ii) the Executive's hearing
before the Board as contemplated in Section 8(a)(2) of this Agreement, or (iii)
the Executive's seeking to obtain or enforce any right or benefit provided by
this Agreement or by any other plan or arrangement maintained by the Company
under which the Executive is or may be entitled to receive benefits.
13. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address shall be effective only upon receipt.
14. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or
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program provided by the Company or any of its subsidiaries and for which the
Executive may qualify, nor shall anything herein limit or reduce such rights as
the executive may have under any other agreements with the Company or any of its
subsidiaries. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any of
its subsidiaries shall be payable in accordance with such plan or program,
except as explicitly modified by this Agreement.
15. Settlement of Claims. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others.
16. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreement or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
17. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California without giving
effect to the conflict of law principles thereof.
18. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer and the Executive has executed this
Agreement as of the day and year first above written.
Ribapharm Inc.
ATTEST: By:________________________________
Title:
________________________
Secretary
The Executive
By:________________________________
Xxxxx X. Xxxxxx
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