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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated as of January __, 1999,
is by and between Bergen Xxxxxxxx Corporation, a New Jersey corporation (the
"Employer"), C. Xxxxxx Xxxxxxxxx, M.D., an individual residing at
_______________________________ (the "Employee"), and, with respect to Sections
1, 8 and 9 only, PharMerica, Inc., a Delaware corporation having an address at
____________________________ ("PharMerica").
RECITALS
1. The Employer has entered into an Agreement and Plan of Merger, dated
as of January __, 1999, by and among the Employer, PharMerica and a wholly-owned
subsidiary of the Employer ("Subcorp"), pursuant to which agreement (the "Merger
Agreement") Subcorp will merge with and into PharMerica (the "Merger") and
PharMerica will become a wholly-owned subsidiary of the Employer.
2. The Employee is currently employed by PharMerica as its Chief
Executive Officer and in such capacity he has acquired outstanding and special
skills and abilities and an extensive background in and knowledge of
PharMerica's business and the industry in which it is engaged.
3. The Employee and PharMerica previously entered into an employment
agreement dated as of December 3, 1997, as amended as of September 30, 1998 (the
"Prior Contract").
4. The Employer and PharMerica are willing to pay the Employee the
amounts which would have become payable to the Employee pursuant to Section XI
of the Prior Contract had he resigned from employment with PharMerica
immediately following the closing (the "Closing") of the transactions described
in the Merger Agreement in order to be assured of the continued association and
services of the Employee after the Closing and in order to retain for the
benefit of the Employer his experience, skills, abilities, background,
knowledge, and to facilitate long range planning and the execution of the
Employer's business in the most orderly and efficient manner.
5. The Employer and the Employee desire to set forth the terms pursuant
to which the Employee will be employed by the Employer at and after the Closing.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. EFFECTIVENESS; PRIOR AGREEMENTS.
(a) This Agreement shall become effective as of the Closing. At the
Closing, this Agreement shall supersede all prior employment agreements and
arrangements between the parties ("Prior Agreements"), including without
limitation the Prior Contract, and both the Employee and PharMerica shall cease
to have any obligations thereunder. Notwithstanding any other provision of
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this Agreement, all provisions of this Employment Agreement other than this
Section 1 shall terminate and be null and void ab initio after any termination
of the Merger Agreement without consummation of the Merger; in such event, the
Prior Contract shall be reinstated in such form as the Prior Contract existed
immediately prior to the execution of the Merger Agreement.
(b) Notwithstanding the termination of the Prior Contract pursuant to
paragraph (a) above, PharMerica will pay to the Employee at the Closing a lump
sum equal to the amount that would have become payable to the Employee or owing
to the Employee (excluding any amount attributable to the value of
post-termination benefits, perquisites and moving expenses) pursuant to Section
XI of the Prior Contract had the Employee resigned from employment with
PharMerica immediately following the Closing. All Employer stock options held by
the Employee immediately prior to the Closing will become fully vested and
immediately exercisable as of the Closing. Any matching payments by PharMerica
in the Employee's account under PharMerica-sponsored retirement plans as of the
Closing will become fully vested as of the Closing.
SECTION 2. EMPLOYMENT.
(a) Unless sooner terminated as provided herein, the Employer shall
employ the Employee for a three (3) year term commencing on the Closing and
expiring on the third anniversary of the Closing, extended in the manner set
forth in the next sentence (the "Term"). The Term shall automatically be
extended for an additional one month period upon the completion of each
one-month period of service provided by the Employee under this Agreement unless
notice is given by either the Employee or the Employer to the other, at least 30
days prior to the expiration of such one-month period, that such party does not
wish to extend the Term of this Agreement, in which case the Term of this
Agreement shall expire at the end of the last month through which this Agreement
had previously been extended. The date upon which this Agreement terminates in
accordance with this Section 2(a) shall be referred to herein as the "Expiration
Date".
(b) Subject to termination of the Prior Agreements, the Employee hereby
represents and warrants that the Employee has the legal capacity to execute and
perform this Agreement, that this Agreement is a valid and binding agreement
enforceable against the Employee according to its terms, and that the execution
and performance of this Agreement by the Employee does not violate the terms of
any existing agreement or understanding to which the Employee is a party.
SECTION 3. POSITION AND DUTIES. During the Term, the Employee and the
Employer agree:
(a) The Employee shall during the Term of this Agreement serve as an
Executive Vice President of the Employer and, as such, the Employee hereby
promises to perform and discharge well and faithfully the duties that may be
assigned to him from time to time that are appropriate for an Executive Vice
President of an organization the size of the Employer that is engaged in the
type of business engaged in by the Employer, and the Employer agrees to assign
to him only such duties. The Employee shall report to the President of the
Employer. To the extent consistent with fiduciary
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principles, the Employee will be nominated to the Board of Directors of the
Employer (the "Board") at the next shareowners meeting after the Closing for a
term of two years.
(b) The Employee shall devote his time, attention and effort during
regular business hours to the business of the Employer and shall not during the
Term of this Agreement be engaged in any other substantial business activity
whether or not such business activity is pursued for gain, profit or other
pecuniary advantage; but this shall not be construed as preventing the Employee
from investing his personal assets in businesses which do not compete with the
Employer in such form or manner as will not require substantial services on the
part of the Employee in the operation of the affairs of the companies in which
such investments are made. Notwithstanding the foregoing, the Employee may make
personal investments in such form or manner as will neither require the
Employee's services in the operation or affairs of the business in which such
investments are made, nor violate the terms of the provisions set forth in
Section 8 hereof. Subject to the written consent of the Chief Executive Officer
of the Employer, the Employee may serve as a director on the board of directors
of other companies provided that no such other company is in competition with
the Employer or any of its subsidiaries.
SECTION 4. COMPENSATION AND BENEFITS. For all services rendered by the
Employee in any capacity required hereunder during the Term, including, without
limitation, services as an officer, director, or member of any committee of the
Employer or PharMerica or any subsidiary, affiliate or division thereof, the
Employee shall be compensated as follows:
(a) During the first twelve month period of the Term, the Employer
shall pay the Employee a fixed salary at an annualized rate of $350,000.00 per
annum ("Base Salary"). Effective as of the first day following such twelve month
period, the Employee's Base Salary shall be, per annum, $350,000.00 plus the
amount, if any, which results from multiplying $50,000.00 by a fraction, the
numerator of which is the aggregate amount of the last four fiscal quarter
bonuses paid to the Employee, if any, and the denominator of which is $350,000;
provided that in no event may such fraction exceed one or be less than one-half.
The Base Salary shall be payable in accordance with the customary payroll
practices of the Employer, but in no event less frequently than monthly.
(b) The Employee shall be entitled to participate in all employee
health and benefit programs of the Employer from time to time in effect for
senior executive officers of the Employer, including, but not limited to,
health, life disability and dental insurance and retirement plan benefit
programs (including the Employer's Supplemental Employee Retirement Plan),
subject to a determination of the Employee's eligibility under the terms of said
plans and otherwise in accordance with their respective terms. These benefits
will include a monthly car allowance, which at the beginning of the Term shall
be $800.00. Notwithstanding the foregoing, nothing in this Agreement shall
require any particular plan or program to be continued nor preclude the
amendment or termination of any such plan or program, provided that such
amendment or termination is applicable generally to the senior executive
officers of the Employer. The Employee shall be entitled to carry forward
accrued unused vacation, sick leave and other paid leave time from periods
before the
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Closing, in accordance with the policies of the Employer in effect before the
Closing with respect to such periods.
(c) The Employee shall be eligible to receive an annual bonus, payable
quarterly (based on the fiscal year of the Employer), during each year of the
Term of up to 100(degree), 4 percent of the Employee's Base Salary. The amount
of the bonus shall be determined by the Board (or by either the Chief Executive
Officer of the Employer or the Compensation Committee of the Board) consistent
with the manner in which such bonuses are determined and paid with respect to
senior executive officers of the Employer.
(d) Provided that the Employee remains in the employ of the Employer
through the first one-year anniversary date of the Closing, the Employer agrees
that Employee will participate in the grant of Employer stock options at a level
and on terms consistent with other senior executive officers of the Employer.
(e) If the Employee's office is relocated during the Term to Orange
County, California, the Employer shall reimburse the Employee for expenses
incurred by him in connection therewith in accordance with the terms and
conditions of the Employer's executive moving policy. In addition, the Employer
shall reimburse the Employee for expenses in moving to the location of the
Employee's choice in the United States in accordance with the terms and
conditions of the Employer's executive moving policy; provided that such moving
expenses are incurred after the Employee's termination of employment with the
Employer and within three years after the Closing.
SECTION 5. BUSINESS EXPENSES. The Employer shall pay or reimburse the
Employee for all necessary travel or other reasonable expenses incurred by the
Employee in connection with the performance of the Employee's duties and
obligations under this Agreement during the Term, subject to the Employee's
presentation of appropriate vouchers in accordance with such expense account
policies and approval procedures as the Employer may from time to time
reasonably establish for employees (including but not limited to prior approval
of extraordinary expenses) and to preserve any deductions for Federal income
taxation purposes to which the Employer may be entitled.
SECTION 6. TERMINATION AND COMPENSATION UPON TERMINATION. This
Agreement may be terminated prior to the Expiration Date only in accordance with
the following provisions:
(a) Death. In the event of the Employee's death, the Employee's
employment with the Employer shall be deemed to be terminated as of the
date of death. Upon the date of death, the Employee's estate or other
legal representative shall be entitled to receive:
(i) any Base Salary installments, vacation and auto allowance
due during the calendar month in which the date of death
occurs; and
(ii) a death benefit equal to 100% of the Base Salary and
bonus that would have otherwise been paid to the Employee had
he remained employed through the
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Expiration Date (measured as if the Employee gave notice of
its wish not to extend the Term of this Agreement 30 days
prior to the date of death), calculated using the same Base
Salary being paid at the date of death and a bonus equal to
the average of the last three bonuses received by the Employee
prior to the date of death.
(b) Disability. In the event that the Employee becomes totally and
permanently disabled so as to be eligible for benefit payments under the group
long-term disability plan of the Employer, the Employer shall continue to pay
the Base Salary and bonus provided in subsections 4(a) and 4(c), respectively,
for the Term of this Agreement, measured as if the Employer gave notice of its
wish not to extend the Term of this Agreement thirty days prior to the date it
is determined that the Employee is totally and permanently disabled so as to be
eligible for benefits under the group long-term disability plan of the Employer,
provided that the amount of such payments shall be reduced by his personal
representative under the group long-term disability plan(s) of the Employer. In
the event the Employee dies prior to the full payment of the amounts under this
subsection, the remaining payments shall be made to the Employee's estate or
other legal representative. Upon payment of the amounts set forth in this
subsection, the Employer shall have no further obligation to the Employee under
this Agreement, except as provided under Section 6(f).
(c) Termination by the Employee Without Good Reason or Upon the
Expiration Date. The Employee can terminate this Agreement without Good Reason
by giving 30 days notice of termination to the Employer. In addition, this
Agreement shall terminate upon the Expiration Date, as defined in Section 2(a).
Such terminations shall be without liability to the Employee and, upon such
termination and payment of any accrued and unpaid compensation through the date
of termination, the Employer shall have no further obligation to the Employee
under this Agreement, except as provided under Section 6(f).
(d) Termination by the Employer for Cause. Except as provided in
Section 2 and this subsection 6(d), the Employer shall not have the right to
terminate the Employee's employment except in breach of this Agreement. The
Employer shall have the right to terminate this Agreement at any time and
without liability to the Employee if such termination is for Cause. For purposes
of this Agreement, "Cause" shall mean a determination by the Board that either
of the following has occurred.
(i) an act or acts of dishonesty by the Employee constituting
a felony under applicable law and resulting or intending to
result directly or indirectly in gain or to personal
enrichment of the Employee at the Employer's expense; or
(ii) a material breach of Section 3, 8 or 9.
Notice of termination pursuant to this subsection shall be accompanied
by a copy of a resolution duly adopted by the affirmative vote of not less than
a majority of a quorum of the Board which shall include the affirmative vote of
at least a majority of the Board's directors, finding that, in the good faith
opinion of the Board, the Employee was guilty of conduct amounting to cause and
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specifying the particulars thereof. Upon such termination, and payment of any
accrued and unpaid compensation, the Employer shall have no further obligation
to the Employee under this Agreement, except as provided under Section 6(f).
(e) Termination by the Employee with Good Reason. "Good Reason" shall
mean any of the following:
(i) without the express written consent of the Employee, any
material change by the Employer in the Employee's function,
duties, or responsibilities which change would cause the
Employee's position with the Employer to become of less
dignity, responsibility, importance or scope than that
applicable to a senior executive officer of the Employer;
(ii) any material failure by the Employer to comply with any
of the provisions of this Agreement;
(iii) the Employer's requiring the Employee to be based at any
office or location more than 25 miles from the office at which
the Employee is based on the Closing, other than (x) an office
of the Employer in Orange County, California or (y) infrequent
business trips of short duration reasonably required in the
performance of the Employee's responsibilities under this
Agreement; or
(iv) any failure by the Employer to obtain the assumption of
this Agreement by an successor or assign of the Employer.
If the Employer determines that Good Reason exists, the Employee shall
notify the Employer in the manner provided in Section 7.
(f) Post-employment Benefits. Notwithstanding anything contained herein
to the contrary, upon termination of the Employee's employment for any reason
other than death, he shall continue to be provided welfare benefit (e.g., health
and disability insurance) coverages, and the automobile allowance set forth in
Section 4(b), for the period (the "Benefits Continuation Period") commencing on
such date of termination and continuing for a period of thirty-six months;
provided, however, that the Employee shall be provided life insurance coverage
for the remainder of his life having a face value of no less than the coverage
in effect on December 31, 1998. Upon expiration of the Benefits Continuation
Period, the Employee shall have the right to elect continuation of health care
coverage under the Employer's group health plan in accordance with "COBRA" and
the Employer shall pay all premiums for such COBRA coverage for the Employee and
his covered dependents. The obligation of the Employer to pay for the cost of
such COBRA coverage shall terminate upon the Employee's obtaining other
employment to the extent that such health coverage is provided by the Employee's
new employer.
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SECTION 7. BREACH BY THE EMPLOYER; DAMAGES; ATTORNEY FEES.
(a) If the Employer breaches any term or condition of this Agreement,
the Employee shall give notice to the Employer setting forth the alleged breach,
requesting that the Employer remedy or cure its breach and offering to continue
to provide the Employee's services to the Employer in accordance with this
Agreement assuming such breached is remedied or cured. The Employer shall have
10 days to remedy or cure such breach. The Employee shall make a good faith
reasonable determination immediately after such ten (10) day period whether the
Employer has remedied such breach and shall communicate the Employee's
determination in writing to the Employer. If the Employee determines that
adequate remedy has occurred, the Employee shall continue in the employ of the
Employer as if no notice had been given. If the Employee determines that
adequate remedy has not occurred, the Employee, at his option, may treat this
Agreement as constructively involuntarily terminated by the Employer in breach
of this Agreement. Any determination by the Employee that breach has occurred
and that adequate remedy has not occurred shall be presumed correct and shall
govern unless the Employer shows by a clear preponderance of the evidence that
it was not a good faith reasonable determination.
(b) For purposes of calculating damages due to the Employee as a result
of any breach of this Agreement by the Employer, damages
(i) shall not exceed, and
(ii) Cause, termination,
(iii) in the case of a termination by the Employer other than
for including without limitation constructive involuntary
shall equal,
the present value (determined on the date such damages are received) of the
compensation the Employee would otherwise have received under this Agreement for
the remaining Term of this Agreement (calculated as if the notice provided for
in Section 2 was given on the date of the breach).
Present value shall be determined by using a discount rate equal to
120% of the "applicable Federal rate" determined under Section 1274(d) of the
Internal Revenue Code of 1986, as amended, or its successor, determined as of
the later of the date of the breach or the termination, compounded semiannually.
Damages, as calculated above, shall be reduced by any "earned income", as that
term is defined in section 911(d)(2)(A) of the Internal Revenue Code of 1986, as
amended, received by the Employee during the remainder of what would otherwise
have been the Term of this Agreement (calculated in the manner provided in the
first sentence of this subsection 13(b)) If earned income is received during
such period but after the payment of damages to the Employee by the Employer,
the Employee shall pay an amount equal to such earned income back to the
Employer as soon as practicable after receipt. No other mitigation of damages
shall be required of the Employee.
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(c) Notwithstanding any dispute concerning whether a breach exists or
whether adequate remedy has occurred, the Employer shall pay the Employee's
damages. The Employee may be required to repay such amounts to the Employer if
any such dispute is finally determined adversely to the Employee.
(d) The Company shall pay to the Employee all reasonable attorneys'
fees and necessary costs and disbursements incurred by or on behalf of the
Employee in connection with or as a result of a dispute under this Agreement,
whether or not the Employee ultimately prevails. Attorneys' fees shall be paid
by the Employer within 30 days of presentment by the Employee to the Employer of
an invoice received by the Employee from the Employee's attorneys. Any late
payments under this subsection shall bear interest at a rate of twenty percent
(20%) per month.
SECTION 8. CONFIDENTIALITY AND COVENANT AGAINST COMPETITION.
(a) The Employee hereby covenants and agrees with the Employer and
PharMerica for the benefit of the Employer, PharMerica and their respective
affiliates, that during the Term, and for a twelve month period commencing on
the later of the Expiration Date or the Employee's termination of employment for
any reason (the "Noncompete Period"), the Employee will not engage in nor carry
on, directly or indirectly, with or without compensation, any business which
provides services or products that are the same as, or in competition with, any
of the services or products provided to third parties by the Employer,
PharMerica or any of their affiliates, at any time between January 1, 1998 and
the date on which the Employee ceases to serve as an employee of the Employer,
PharMerica or any of their affiliates, regardless of whether such business is
performed by the Employee directly, or as a member of, or owner of an equity
interest in (other than as a holder of less than two percent (2%) of the issued
and outstanding stock of a publicly held corporation), or as an investor,
officer, director, employee, agent, member, associate or consultant of, any
person, partnership, corporation, joint venture, limited liability Employer or
other entity.
(b) The Employee further covenants that (x) the Employee will not
solicit or induce any employee of the Employer, PharMerica or any of their
affiliates to leave their employ and to work for anyone in competition with the
Employer, PharMerica or any of their affiliates, (y) the Employee will not
employ any person who during the Term was or is upon termination of the Term an
employee of the Employer, PharMerica or any of their affiliates unless such
person is no longer employed by the Employer, PharMerica or any of their
affiliates for at least six months and (z) the Employee will not solicit any
customer of the Employer, PharMerica or any of their affiliates who was such a
customer during the Term or any potential customer with whom the Employer,
PharMerica or any of their affiliates may reasonably be expected to contract or
service within one year after the later of the termination of the Term in a
manner which could adversely affect the Employer, PharMerica or any of their
affiliates or make statements to such customers or potential customers which
disparage the Employer, PharMerica or any of their affiliates in any way.
(c) The Employee further agrees that all documents, reports, plans,
proposals, marketing and sales plans, customer lists, intellectual property or
materials principally relating to the businesses
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of the Employer, PharMerica or any of their affiliates and made by the Employee
or that came or come into the Employee's possession by reason of the Employee's
employment by the Employer, PharMerica or any of their affiliates or by reason
of the Employee's services during the Term are the property of such entities and
shall not be used by the Employee in any way adverse to the interests of the
Employer, PharMerica or any of their affiliates. The Employee will not deliver,
reproduce or in any way allow such documents, intellectual property or things to
be delivered or used by any third party without specific direction or consent of
a duly authorized representative of the Employer. During or after termination of
the Employee's employment with the Employer, PharMerica or any of their
affiliates, the Employee will not publish, release or otherwise make available
to any third party any information describing any trade secret, other
intellectual property or other confidential information of such entities without
the prior specific written authorization of the Employer.
(d) The Employee will regard and preserve as confidential all trade
secrets and other confidential information pertaining to the business of the
Employer, PharMerica or any of their affiliates, that have been or may be
obtained by the Employee by reason of the Employee's employment by such
entities. The Employee will not, without written authority from the Employer to
do so, use for the Employee's own benefit or purposes, nor disclose to others,
either during the Employee's employment by the Employer, PharMerica or any of
their affiliates, or thereafter, except as required in the line of the
Employee's employment with such entities, any trade secret or other confidential
information connected with the business or developments of the Employer,
PharMerica or any of their affiliates; and the Employee will not take or retain
or copy any of the information, customer lists, intellectual property or other
documents or things of the Employer, PharMerica or any of their affiliates. This
provision shall not apply with respect to information which has been voluntarily
disclosed to the public, independently developed and disclosed by others, or
otherwise enters the public domain through lawful means. Upon termination of
employment with the Employer, the Employee will return to the Employer all such
information, customer lists, intellectual property and other documents and
things.
(e) For purposes of this Agreement, the term "trade secret" shall
include, but not be limited to, information encompassed in all plans, proposals,
marketing and sales plans, software, firmware, customer lists, mailing lists,
financial information, costs, pricing information, and all concepts or ideas in
or reasonably related to the businesses of the Employer, PharMerica or any of
their affiliates (whether or not divulged by the Employee or other employees or
agents of such entities) that have not previously been publicly released by duly
authorized representatives of the Employer.
(f) The covenants contained in paragraphs (b), (c) and (d) above will
continue until three years after the end of any employment relationship between
the Employee and the Employer, PharMerica or any of their affiliates.
(g) The covenants contained in paragraph (a) above shall be deemed to
be a series of separate covenants, one for each county of each state in the
United States of America. If, in any judicial proceeding, a court should refuse
to enforce all of the separate covenants deemed included
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in those paragraphs, then such unenforceable covenants shall be deemed
eliminated from the provisions of this Agreement for the purpose of such
proceeding to the extent necessary to permit the remaining separate covenants to
be enforced in such proceeding. If any court determines that any of the
covenants herein, or any part thereof, is unenforceable because of the duration
of such provision, such court shall reduce the duration of such provision to the
extent necessary to render it enforceable and, in its reduced form, such
provision shall then be enforced.
(h) The Employee acknowledges that the Employee has carefully read and
considered all of the terms and conditions of this Agreement, including the
restraints imposed upon the Employee pursuant to Sections 8(a), 8(b), 8(c) and
8(d) hereof. The Employee agrees that such restraints are necessary for the
reasonable and proper protection of the Employer, PharMerica and its affiliates
and the value of the business which the Employer has acquired pursuant to the
Merger Agreement, and that each and every one of said restraints is reasonable
in respect to subject matter, length of time, and geographical area.
(i) The Employee further acknowledges that damages at law would not be
a measurable or adequate remedy for a breach of the restrictive covenants
contained herein, and accordingly consents to the entry by any court of
competent jurisdiction of an order enjoining the Employee from violating any of
such covenants.
(j) The Employee further agrees that a copy of a summons and complaint
seeking the entry of such order may be served upon the Employee by certified
mail, return receipt requested, at the address set forth above or at any other
address which the Employee shall designate in a writing addressed to the
Employer in the manner that notices are to be addressed pursuant to this
Agreement.
SECTION 9. WORK FOR HIRE ACKNOWLEDGMENT; ASSIGNMENT. The Employee
acknowledges that all of the Employee's work on and contributions to the
products and services of the Employer, PharMerica and their affiliates (the
"Products"), including, without limitation, any and all patterns, designs,
artworks and other expressions in any tangible medium (collectively, the
"Works"), are within the scope of, and are a part of the services, duties and
responsibilities of, the Employee hereunder. All of the Employee's work on and
contributions to the Works will be rendered and made by the Employee for, at the
instigation of, and under the overall direction of the Employer, and all of the
Employee's said work and contributions, as well as the Works, are and at all
times shall be regarded as "work made for hire" as that term is used in the
United States Copyright Laws. Without curtailing or limiting this
acknowledgment, the Employee hereby assigns, grants, and delivers exclusively to
the Employer, as to work on and contribution to the Products pursuant hereto all
rights, titles, and interests in and to any such Works, and all copies and
versions, including all copyrights and renewals. The Employee will execute and
deliver to the Employer, or its successors and assigns, such other and further
assignments, instruments and documents as it from time to time reasonably may
request for the purpose of establishing, evidencing, and enforcing or defending
its complete, exclusive perpetual, and worldwide ownership of all rights,
titles, and interests of every kind and nature whatsoever, including all
copyrights, in and to the Works. The Employee hereby constitutes and appoints
the Employer as its agent and attorney-in-fact, with full power of
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substitution, to execute and deliver said assignments, irlstmments or documents
as the Employee may fail or refuse to execute and deliver, this power and agency
being coupled with an interest and being irrevocable.
SECTION 10. INDEMNITY. During the term hereof, the Employer agrees to
indemnify and hold the Employee harmless to the fullest extent permitted under
the law from any and all suits, actions, proceedings, claims or settlements
arising out of the performance of the Employee's duties hereunder, including all
activities as an officer and director of the Employer if applicable. The
Employer further agrees to pay all costs which are incurred by the Employee in
preparing and defending against such claims, including all attorneys' fees,
witness fees, court costs, settlement costs and other similar fees. The costs
and expenses incurred by the Employee in investigating, defending or appealing
any threatened, pending or completed suit, action, proceeding or claim covered
hereunder, shall be paid by the Employer in advance as may be appropriate
properly to defend any such action, suite, proceeding and/or paid in advance at
the request of the Employee, and any judgments, fines or amounts paid in
settlement shall be paid by the Employer in advance, with the understanding and
agreement hereby made and entered into by the Employee and the Employer that in
the event it shall ultimately be determined as provided hereunder that the
Employee was not entitled to be indemnified, or was not entitled to be fully
indemnified, that the Employee shall reply to the Employer such amount, or the
appropriate portion thereof, so paid or advanced.
SECTION 11. WITHHOLDING TAXES. The Employer may directly or indirectly
withhold from any payments made under this Agreement all Federal, state, city or
other taxes and all other deductions as shall be required pursuant to any law or
governmental regulation or ruling or pursuant to any contributory benefit plan
maintained by the Employer or PharMerica.
SECTION 12. NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be given in writing and
shall be deemed to have been duly given if delivered or mailed, postage prepaid,
by same day or overnight mail as follows:
(a) To the Employer:
to the Employer at the Employer's
address listed above
with a copy (which shall not be deemed notice) to:
Milan A. Sawdei, Esq.
Chief Legal Officer
Bergen Xxxxxxxx Corporation
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
(b) To the Employee:
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to the Employer at the Employer's
address listed above
or to such other address as either party shall have previously specified in
writing to the other.
SECTION 13. NO ATTACHMENT. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to execution, attachment, levy or similar process or assignment
by operation of law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void and of no effect; provided, however, that
nothing in this Section 13 shall preclude the assumption of such rights by
executors, administrators or other legal representatives of the Employee or the
Employee's estate and their assigning any rights hereunder to the person or
persons entitled thereto.
SECTION 14. SOURCE OF PAYMENT. Except as otherwise provided under the
terms of any applicable employee benefit plan, all payments provided for under
this Agreement shall be paid in cash from the general funds of the Employer. The
Employer shall not be required to establish a special or separate fund or other
segregation of assets to assure such payments, and, if the Employer shall make
any investments to aid it in meeting its obligations hereunder, the Employee
shall have no right, title or interest whatever in or to any such investments
except as may otherwise be expressly provided in a separate written instrument
relating to such investments. Nothing contained in this Agreement, and no action
taken pursuant to its provisions, shall create or be construed to create a trust
of any kind, or a fiduciary relationship, between the Employer and the Employee
or any other person. To the extent that any person acquires a fight to receive
payments from the Employer hereunder, such fight, without prejudice to fights
which employees may have, shall be no greater than the right of an unsecured
creditor of the Employer.
SECTION 15. BINDING AGREEMENT; NO ASSIGNMENT. This Agreement shall be
binding upon, and shall inure to the benefit of, the Employee and the Employer
(and PharMerica, to the extent PharMerica is referenced herein) and their
respective permitted successors, assigns, heirs, beneficiaries and
representatives. This Agreement is personal to the Employee and may not be
assigned by the Employee without the prior written consent of the Board, as
evidenced by a resolution of the Board. Any attempted assignment in violation of
this Section 15 shall be null and void.
SECTION 16. GOVERNING LAW; CONSENT TO JURISDICTION. The validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of Florida. Service of process in connection with any
such suit, action or proceeding may be served on the Employee and the Employer
anywhere in the world by the same methods as are specified for the giving of
notices under this Agreement. THE EMPLOYEE AND THE EMPLOYER EACH WAIVE THE RIGHT
TO TRIAL BY JURY WITH RESPECT TO ANY MATTER ARISING UNDER THIS AGREEMENT.
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SECTION 17. ENTIRE AGREEMENT. This Agreement shall constitute the
entire agreement among the parties with respect to the matters covered hereby
and, upon effectiveness at the Closing, shall supersede all previous written,
oral or implied understandings among them with respect to such matters,
including, but not limited to, the Prior Agreements.
SECTION 18. AMENDMENTS. This Agreement may only be amended or otherwise
modified by a writing executed by both of the parties hereto.
SECTION 19. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which when executed shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed and delivered by its duly authorized officer and the Employee has
signed this Agreement, all as of the first date written above.
BERGEN XXXXXXXX CORPORATION
By:
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Employee:
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C. Xxxxxx Xxxxxxxxx, M.D.
With respect to Sections 1, 8 and 9 only:
PHARMERICA, INC.
By:
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