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EXHIBIT 10.11 (i)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into effective July 18, 2000 by and between Duramed Pharmaceuticals,
Inc., a Delaware corporation, having its principal office at 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxx 00000 ("Company"), and E. Xxxxxx Xxxxxxxx ("Xxxxxxxx") and
restates and amends that earlier Agreement between the Company and Xxxxxxxx
dated as of October 22, 1987 and itself subsequently amended and restated as of
January 12, 1990 and as of March 30, 1994.
W I T N E S S E T H
WHEREAS, the Company has been incorporated under the laws of the State
of Delaware to engage in the manufacture and sale of pharmaceuticals and any
other lawful act or activities for which corporations may be organized; and
WHEREAS, the Company is desirous of entering into this Agreement with
Xxxxxxxx on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. Employment. The Company hereby agrees to continue to employ Xxxxxxxx
as its President or Chairman of the Board, and Chief Executive Officer, to
perform such duties as are
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customarily performed by persons holding such positions, and Xxxxxxxx hereby has
accepted said employment. Xxxxxxxx agrees that he accepts such employment on an
exclusive basis and that he shall exercise his best efforts and shall fully
perform and discharge his duties and responsibilities in such capacity, and
shall be subject to general supervision, direction and control of the Company
through its directors during the term hereof.
2. Term.
(a) The term of this Agreement (the "Employment Period") shall
commence as of January 1, 2000, and shall continue thereafter until December 31,
2005, subject to any and all rights of termination as provided herein. The term
shall be extended automatically as follows: until December 31, 2006 unless
notice of termination is give by either party prior to December 31, 2004;
thereafter to December 31, 2007 unless notice of termination is given by either
party prior to December 31, 2005; and thereafter by similar one year extensions
unless notice of termination is given by either party at least one year prior to
the otherwise scheduled expiration date.
(b) If a Change of Control (as defined hereafter) occurs when
Xxxxxxxx is employed by the Company, the Company will, at the election of
Xxxxxxxx, continue thereafter to employ Xxxxxxxx, in accordance with the terms
and provisions of this Agreement, for a period of three years or until December
31, 2005, whichever is later, and any further extensions, following the date of
the Change of Control. The term of this Agreement shall be extended
automatically, without further action by the Company or Xxxxxxxx, on the date
which is six months before the third anniversary of the Change of Control (the
"Change of Control Extension Date") for successive periods of twelve months
each, unless either party gives written notice to the other
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party, prior to the Change of Control Extension Date in question, that the term
then in effect is not to be extended or further extended, as the case may be.
(c) Unless otherwise agreed by the Company and Xxxxxxxx,
during the Employment Period, Xxxxxxxx shall be employed by the Company after a
Change of Control in the same position as that which Xxxxxxxx held on the date
of a Change of Control. In such employment, his duties and authority shall
consist of and include all duties and authority customarily performed and held
by a person holding an equivalent position with a corporation of similar nature
and size, as such duties and authority related to such position are reasonably
defined and delegated form time to time by the Board of Directors of the
Company. Xxxxxxxx shall have the powers necessary to perform the duties assigned
and shall be provided such supporting services, staff, secretarial and other
assistance, office space and accouterments as shall be reasonably necessary and
appropriate in light of the duties assigned (but in no event, in any case,
smaller in size or lesser in quality than that being furnished to Xxxxxxxx on
the date of the Change in Control).
(d) Xxxxxxxx shall devote substantially of his business time,
energy and skills to such employment while so employed, but Xxxxxxxx shall not
be required to devote more than an average of approximately forty-five (45)
hours per calendar week to such employment.
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3. Compensation.
(a) Salary Compensation. The Company shall pay Xxxxxxxx, in
payment for any and all services rendered by him for the benefit of the Company,
including without limitation the services provided hereunder, a base salary
("Base Salary") at a rate to be set by the Compensation Committee of the
Company's Board of Directors (not less than Forty One Thousand Six Hundred and
Sixty Six Dollars ($41,666) per month) for the term of this Agreement.
Xxxxxxxx'x Base Salary shall be payable in accordance with the customary payroll
practice of the Company, but not less often than monthly. In addition, Xxxxxxxx
shall be reimbursed for all expenses reasonably incurred in the performance of
his duties for the Company.
(b) Bonus Compensation. Xxxxxxxx shall be entitled to a
separate bonus for each year of the Employment Period in such amount as may be
determined by the Compensation Committee of the Board of Directors (the "Annual
Bonus"). In determining whether such bonus payment shall be made, or the amount
of any such payment, the Compensation Committee shall consider, among other
factors deemed relevant by it, the Company's level of profitability during the
particular year and the increase in the market value of the Company's Common
Stock during that year. Any Annual Bonus to Xxxxxxxx will be determined annually
as soon as final results are known and paid as permitted by the cash flow needs
of the Company as determined by the Compensation Committee. Earned but unpaid
Annual Bonuses shall be accrued until the cash flow of the Company permits
payment. In no event shall any Annual Bonus which has been earned be deferred if
such Annual Bonus is to be used for the exercise of options have been issued by
the Company.
(c) Stock Options. Under the original October 27, 1987
Agreement, Xxxxxxxx was granted options to purchase 382,028 shares of the
Company's Common Stock (after giving
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effect to antidilutive provisions of the 1987 Agreement) (the "Option Shares")
at exercise prices ranging from $5.71 per share to $11.42 per share. Such
options (the "Options") were amended and restated as of January 12, 1990 and
during 1991 were exchanged and converted into options to purchase 254,685 shares
at a price of $1.5625 per share. The terms of the Option are as follows:
(i) Vesting. The Options are to purchase 254,685
shares of the Company's Common Stock and are fully vested.
(ii) Exercise. The Options may be exercised at any
time prior to March 18, 2001 at a per share exercise price of $1.5625 (the
"Option Price"). The Option Price shall be paid in cash or with shares of Common
Stock of the Company valued at fair market value at the time of exercise.
(iii) Anti-dilution. The number of Option Shares per
Option and the per share Option Price shall be subject to adjustment as provided
in Attachment I to this Agreement.
(iv) Unregistered Status. The Company shall not be
obligated to register, under the Securities Act of 1933 or any state securities
laws or otherwise, any shares issued in connection with the exercise of the
Options. In the event that the Company does not register such shares, the
Company will cause a legend to be placed on all share certificates to the effect
that transfer of the shares is restricted. Notwithstanding the foregoing,
unregistered shares may be used for payment of the option price under Section
3(c)(ii) above.
(v) Other Option Grants. Xxxxxxxx shall be eligible
for additional grants of options under the Company's stock option plans in such
amounts as shall be determined from time to time by the Compensation Committee.
The Company's Board of Directors intends presently to request that shareholders
approve an amendment to the Company's existing Stock
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Option Plan to increase the number of shares available for option grants under
such Plan. If such action is taken by the Board and stockholder approval is
obtained, the Compensation Committee of the Board of Directors will grant
options to Xxxxxxxx to purchase 400,000 shares of Common Stock. Such options
shall be granted at the time of approval by shareholders of the amendments to
the Plan and shall have an exercise price equal to the fair market value of the
Company's Common Stock at that time.
4. Additional Employment Benefits. (a) Benefits. Xxxxxxxx shall be
eligible to participate in all benefits made generally available by the Company
to its executive officers during the periods covered by this Agreement,
including, without limitation, pension plans, profit sharing plans,
hospitalization insurance, health and accident insurance, disability insurance,
group term life insurance, and all other fringe benefits which may be provided
by the Company for its executive officers during the term hereof. To the extent
possible under the terms of then existing plans without material increase in
expense, the Company shall provide continuing coverage to Xxxxxxxx under the
Company's hospitalization insurance and health plans following his retirement
and until his death. In addition to the foregoing, Xxxxxxxx shall be entitled to
six (6) weeks paid vacation per year (which may be accumulated for up to two
years), and shall be entitled to membership in a country club, commensurate with
such benefit provided to chief executive officers of similarly sized public
companies.
(b) Insurance. The Company has transferred a $1.3 Million
policy (Phoenix 2657322) to Xxxxxxxx with the cash value being collaterally
assigned back to the Company to the extent of $192,894. The Company agrees to
retain this collateral assignment until September 5, 2016. In addition, the
Company agrees to fund, on a split dollar basis, a new second-to-die policy on
Xxxxxxxx and his wife to the extent of $51,000 per year for 10 years with the
collateral
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assignment of that policy effective until September 5, 2020. Furthermore, the
Company will provide a long-term disability insurance policy providing for
monthly payments, in the event of the total or permanent partial disability of
Xxxxxxxx and for the remaining life of Xxxxxxxx, equal to 50% of the average
monthly salary compensation paid to Xxxxxxxx under Section 3(a) during the 12
month period prior to such disability with such policy naming Xxxxxxxx as
beneficiary.
The Company's obligations under this section continue for the period
indicated whether or not Xxxxxxxx continues as an employee and whether or not
there is a Change in Control (as defined herein) of the Company.
(c) Legal and consulting. The Company shall also pay up to
$15,000 per year in personal legal, accounting, estate planning, or other
professional financial consulting or counseling fees for Xxxxxxxx.
(d) Automobile. Xxxxxxxx shall be entitled to usage of a
Company car, commensurate with such benefit provided to chief executive officers
of similarly-sized public companies. Upon termination of employment, title to
such car shall be transferred, without cost, to Xxxxxxxx.
(e) Pension Benefit. The Company maintains a 401(k) Plan for
the retirement needs of its employees. However, the Board recognizes that this
plan has been in place for only a limited period of time and that, accordingly,
Xxxxxxxx and other long-term employees have not been able to build up
substantial benefits under this Plan. In recognition of this fact, the Board of
Directors of the Company expresses its willingness to consider an arrangement
for payments to be made to Xxxxxxxx for a period of time following termination
of his employment. However, the Board believes that such action would not be
appropriate at this time in view of the
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Company's current operating results and cash needs. The Board will consider this
possibility further when the Company's financial condition has improved.
5. Indemnification. To the extent permitted by law, the Company shall
pay, indemnify and hold Xxxxxxxx harmless from any liability, cost or expense
(including, without limitation, reasonable attorney's fees) incurred by him in
the defense of any claim, proceeding or action arising out of his performance of
services for the Company, or out of his status as an officer or director of the
Company or while serving at the request of the Company as an officer, director,
partner or employee of any other entity. The Company will use its best efforts
to obtain insurance coverage to meet its obligations hereunder. Notwithstanding
the foregoing, the Company shall not indemnify Xxxxxxxx against any act or
omission by him constituting fraud, willful misconduct or gross negligence.
6. Termination.
(a) Involuntary. In the event of the death of Xxxxxxxx or his
permanent disability to perform the services required hereunder, the obligations
of the Company under Sections 1, 3 and 4 of this Agreement shall be terminated
(except that any unexercised Options shall remain exercisable until the end of
their term). For purposes of this Agreement, the term "disability" shall be
defined as a physical or mental disability or disease which in the opinion of an
independent qualified physician appointed by the Company prevents Xxxxxxxx from
discharging the customary normal duties of his employment with the Company. In
the event of Xxxxxxxx'x death or disability during the term of this Agreement,
Xxxxxxxx or his estate shall be entitled to receive deferred compensation at a
monthly rate equal to fifty percent (50%) of the average monthly Base Salary
paid to him under Section 3(a) during the twelve (12) month period prior to
death or disability. Such amount shall be paid in monthly installments over the
remaining term
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of the Agreement. In the event of disability, the amount payable hereunder shall
be reduced by the amount of disability income insurance proceeds paid to
Xxxxxxxx during the remaining term hereof.
(b) Change of Control. For the purpose of this Agreement,
a "Change of Control" shall mean:
(i) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 30% or more of either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company, (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any corporation controlled by the Company or
(iv) any acquisition by any corporation pursuant to a transaction which complies
with clauses (a), (b) and (c) of subsection (iii) of this Section 6(b); or
(ii) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though
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such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (a) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (b) no Person (excluding any employee benefit plan (or related trust) of the
company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 30% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination
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and (c) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(iv) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
(c) Cause. The Company may terminate Xxxxxxxx'x employment for
Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of Xxxxxxxx to
perform substantially his duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to
Xxxxxxxx by the Board which specifically identifies the manner in which the
Board believes that Xxxxxxxx has not substantially performed his duties, or
(ii) the willful engaging by Xxxxxxxx in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company. For purposes of this provision, no act or failure to act, on the
part of Xxxxxxxx, shall be considered "willful" unless it is done, or omitted to
be done, by him in bad faith or without reasonable belief that his action or
omission was in the best interests of the Company. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by the Board or
based upon the advice of counsel for the Company shall be conclusively presumed
to be done, or omitted to be done, by Xxxxxxxx in good faith and in the best
interests of the Company. The cessation of employment of Xxxxxxxx shall not be
deemed to be for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of a
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majority of the entire membership of the Board at a meeting of the Board called
and held for such purpose (after reasonable notice is provided to him and he is
given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, Xxxxxxxx is guilty of the
conduct described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
(d) Good Reason. Xxxxxxxx'x employment may be terminated by
him for Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
(i) the assignment to Xxxxxxxx of any duties
inconsistent with his position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
1 of this Agreement, or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities;
(ii) any failure by the Company to comply with any of
the provision of Section 3 of this Agreement;
(iii) the Company's requiring Xxxxxxxx to be based at
any office or location after the Effective Date other than within twenty miles
of Cincinnati, Ohio or the Company's requiring Xxxxxxxx to travel on Company
business to a substantially greater extent than required immediately prior to
the date of this Agreement;
(iv) any purported termination by the Company of
Xxxxxxxx'x employment; otherwise than as expressly permitted by this Agreement;
or
(v) the continued failure of the Company to perform
substantially its obligations under this Agreement after a written demand for
substantial performance is delivered by Xxxxxxxx to the Board of Directors which
specifically identifies the manner in which he believes the Company has not
substantially carried out its obligations.
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Notwithstanding the above, "Good Reason" shall exclude an isolated,
insubstantial and inadvertent action or failure to act not taken or occurring in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by Xxxxxxxx.
For purposes of this Section 6(d), any good faith
determination of "Good Reason" made by Xxxxxxxx shall be conclusive. Anything in
this Agreement to the contrary notwithstanding, a termination by Xxxxxxxx for
any reason during the six-month period immediately following a Change in Control
shall be deemed to be a termination for Good Reason for all purposes of this
Agreement.
(e) Notice of Termination. Any termination by the Company for
Cause, or by Xxxxxxxx for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11 of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Xxxxxxxx'x employment under the provision so indicated and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than thirty days
after the giving of such notice). The failure by Xxxxxxxx or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Good Reason or Cause, respectively, shall not preclude Xxxxxxxx or
the Company, respectively, from asserting such fact or circumstance in enforcing
Xxxxxxxx'x or the Company's rights hereunder.
(f) Date of Termination. "Date of Termination" means (i) if
Xxxxxxxx'x employment is terminated by the Company for Cause, or by Xxxxxxxx for
Good Reason, the date
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of receipt of the Notice of Termination or any later date specified therein, as
the case may be; (ii) if Xxxxxxxx'x employment is terminated by the Company
other than for Cause, the Date of Termination shall be the date on which the
Company notifies him of such termination; and (iii) if Xxxxxxxx'x employment is
terminated by reason of death or disability, the Date of Termination shall be
the date of death of Xxxxxxxx or the disability, as the case may be.
7. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause. If the Company shall
terminate Xxxxxxxx'x employment other than for Cause or death or disability or
Xxxxxxxx shall terminate employment for Good Reason:
(i) the Company shall pay to Xxxxxxxx in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) Xxxxxxxx'x then annual Base Salary
through the Date of Termination to the extent not theretofore paid, (2) the
product of (x) the Annual Bonus paid or payable, including any bonus or portion
thereof which has been earned but deferred (and annualized for any fiscal year
consisting of less than twelve full months), for the most recently completed
fiscal year and (y) a fraction, the numerator of which is the number of days in
the current fiscal year through the Date of Termination, and the denominator of
which is 365 and (3) any compensation previously deferred by Xxxxxxxx (together
with any accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore paid (the sum of the amounts described
in clauses (1), (2), and (3) shall be hereinafter referred to as the "Accrued
Obligations"); and
B. an amount equal to the product of (1) the Base
Salary and the Annual Bonus paid to Xxxxxxxx during the most recently completed
fiscal year and (2) the "Time
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Factor". If the Date of Termination occurs after a Change of Control, the Time
Factor shall be three (3). If the Date of Termination occurs before a Change of
Control, the Time Factor shall be the number of full and partial years then
remaining in the term of this Agreement.
(ii) for three years after Xxxxxxxx'x Date of Termination, or
such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to Xxxxxxxx
and/or Xxxxxxxx'x family at least equal to those which would have been provided
to them if Xxxxxxxx'x employment had not been terminated or, if more favorable
to Xxxxxxxx, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies and their families,
provided, however, that if Xxxxxxxx becomes reemployed with another employer and
is eligible to receive medical or other welfare benefits under another employer
provided plan, the medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during such applicable period
of eligibility;
(iii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to Xxxxxxxx any other amounts or benefits
required to be paid or provided or which Xxxxxxxx is entitled to receive under
any plan, program, policy or practice or contract or agreement of the Company
and its affiliated companies (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits"); and
(iv) all unvested options to purchase shares of Common Stock
of the Company then held by Xxxxxxxx shall vest immediately.
(b) Cause; other than for Good Reason. If Xxxxxxxx'x
employment shall be terminated for Cause, this Agreement shall terminate without
further obligations to Xxxxxxxx other than the obligation to pay to Xxxxxxxx (x)
his Base Salary through the Date of
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Termination and (y) the amount of any compensation previously deferred by
Xxxxxxxx in each case to the extent theretofore unpaid. If Xxxxxxxx voluntarily
terminates employment during the Employment Period, excluding a termination for
Good Reason, this Agreement shall terminate without further obligations to
Xxxxxxxx, other than for Accrued Obligations and the timely payment or provision
of Other Benefits. In such case, all Accrued Obligations shall be paid to
Xxxxxxxx in a lump sum in cash within 30 days of the Date of Termination.
8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of Xxxxxxxx (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise, but determined without regard to any additional payments required
under this Section 8) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the United States Internal Revenue Code (the "Code") or any
interest or penalties are incurred by Xxxxxxxx with respect to such excise tax
(such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then Xxxxxxxx shall be entitled
to receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by Xxxxxxxx of all taxes and any benefits that result from the
deductibility by Xxxxxxxx of such taxes (including, in each case, any interest
or penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, Xxxxxxxx retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a Gross-up Payment is required and the
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amount of such Gross-Up Payment and the assumptions to be utilized in arriving
at such determination, shall be made by Ernst & Young or such other certified
public accounting firm as may be designated by Xxxxxxxx (the "Accounting Firm")
which shall provide detailed supporting calculations both to the Company and
Xxxxxxxx within 15 business days of the receipt of notice from Xxxxxxxx that
there has been a Payment, or such earlier time as is requested by the Company.
In the event that the Accounting Firm is serving as accountant or auditor for
the individual, entity or group effecting the Change of Control, Xxxxxxxx shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 8, shall be paid by the Company to Xxxxxxxx within five days of the
receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and Xxxxxxxx. As a result of
the uncertainty in the application of section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 8(c) and Xxxxxxxx thereafter is required to make a payment of any Excise
Tax, the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or
for the benefit of Xxxxxxxx.
(c) Xxxxxxxx shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up
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Payment. Such notification shall be given as soon as practicable but no later
than ten business days after Xxxxxxxx is informed in writing of such claim and
shall apprize the Company of the nature of such claim and the date on which such
claim is requested to be paid. Xxxxxxxx shall not pay such claim prior to the
expiration of the 30-day period following the date on which it gives such notice
to the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies Xxxxxxxx in
writing prior to the expiration of such period that it desires to contest such
claim, Xxxxxxxx shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Xxxxxxxx harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest
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and, at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct Xxxxxxxx to pay the tax
claimed and xxx for a refund or contest the claim in any permissible manner, and
Xxxxxxxx agrees to prosecute such contest to a determination before any
administrative tribunal, in courts, as the Company shall determine; provided,
however, that if the Company directs Xxxxxxxx to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment to Xxxxxxxx, on an
interest-free basis and shall indemnify and hold Xxxxxxxx harmless, on an
after-tax basis from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance; and
further provided that any extension of the statute of limitations relating to
payment of taxes for the taxable year of Xxxxxxxx with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
Xxxxxxxx shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Xxxxxxxx of an amount advanced by
the Company pursuant to Section 8(a) or 8(c), Xxxxxxxx becomes entitled to
receive any refund with respect to such claim, Xxxxxxxx shall (subject to the
Company's complying with the requirements of Section 8(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by Xxxxxxxx of an
amount advance by the Company pursuant to Section 8(c), a determination is made
that Xxxxxxxx shall not be entitled to any refund with respect to such claim and
the Company does not notify Xxxxxxxx in writing of its intent to contest such
denial of refund prior to the expiration of 30 days
20
after such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
9. Confidentiality and Non-Competition.
(a) Xxxxxxxx will not at any time during the term of this
Agreement or thereafter, except as authorized by the Company, divulge, furnish
or make accessible to any person, firm, corporation or other entity, any
confidential information or any other information that is otherwise not publicly
available which he presently possesses or which he may obtain during the course
of his employment with respect to the business, customers or affairs of the
Company or any subsidiary or affiliate of the Company or trade secrets,
developments, know-how, methods or other information or data pertaining to
practices, equipment, developments or any confidential or secret aspect of the
business of the Company or any subsidiary or affiliate of the Company, and
agrees that all such matters and information shall be kept strictly and
absolutely confidential. Xxxxxxxx, upon termination of his employment,
irrespective of the time, manner or cause of termination, will surrender and
deliver to the Company all lists, books, records and data of every kind relating
to or in connection with the business of the Company or any subsidiary or
affiliate of the Company, and all property belonging to the Company and any
subsidiary or affiliate of the Company.
(b) In the event Xxxxxxxx terminates his employment without
Good Reason, or in the event Xxxxxxxx'x employment is terminated by the Company
for Cause, for a period of one year thereafter, Xxxxxxxx shall not, directly or
indirectly, engage in, contract with others to engage in, be employed by,
consult with, or advise any business enterprise, line of work, consulting
contract, joint venture or other arrangement which conducts a business or
businesses
21
substantially similar to the business currently or at that time conducted by the
Company (including specifically the development, testing, manufacturing,
selling, marketing or distributing of generic drug products, whether
prescription or otherwise) within the United States of America. In addition, for
such time period Xxxxxxxx shall not solicit employees of the Company for the
purpose of inducing them to terminate their employment with the Company.
Xxxxxxxx acknowledges that the geographic area covered hereby, and the period
and nature of the agreed restrictions are reasonable and necessary for the
protection of the business of the Company. Xxxxxxxx hereby represents that the
prohibitions contained in this subparagraph 9(b) will not prevent him from
earning a livelihood. All provisions of this paragraph concerning noncompetition
are severable; and while it is the intention of the parties that all of said
provisions shall be enforceable, if any one of the same shall be held to be
unenforceable in whole or in part, the remainder shall continue to be in full
force and effect.
(c) In the event that Xxxxxxxx'x employment is terminated by
him for Good Reason or by the Company without Cause, the provisions set forth in
this paragraph 9(b) shall not apply.
(d) Xxxxxxxx hereby acknowledges that a breach of subsections
(a) or (b) above would cause immediate and irreparable harm to the Company for
which money damages would not be an adequate remedy, and therefore hereby agrees
that, without limiting any other remedies available to the Company, the Company
shall be entitled to immediate equitable and/or injunctive relief restraining
Xxxxxxxx from conduct in breach of subsections (a) and (b), and Xxxxxxxx hereby
indemnifies the Company for all fees and costs, including reasonable attorneys
fees, incurred in obtaining such equitable relief.
22
10. Special Undertaking.
(a) Xxxxxxxx hereby assigns and agrees to assign to the
Company, all inventions which he makes or conceives alone or jointly with
others, during the period of Employment Period (including any periods of
authorized leave of absence) which inventions relate to matter within the normal
scope of Xxxxxxxx'x duties or field of responsibility or depend upon his
knowledge of trade secrets or other information of a confidential nature
belonging to the Company or which relate to tasks assigned to Xxxxxxxx by the
Company. Xxxxxxxx agrees to disclose promptly and fully all such inventions to
the Company and to assist the Company to obtain patents thereon in any or all
countries where protection is needed. All such inventions shall be the property
of the Company whether patented or not. If any application for Letters Patent
for any inventions, discoveries and improvements are filed by Xxxxxxxx during
the period of one year after termination of Xxxxxxxx'x employment with the
Company, the subject matter covered therein shall be conclusively presumed to
have been conceived during employment by the Company.
(b) Xxxxxxxx further agrees that any and all notes and records
kept or made in connection with his employment or in relation to any such
inventions, discoveries and improvements, whether made or conceived in the
regular performance of employment or otherwise, shall be and are the sole and
exclusive property of the Company; and Xxxxxxxx further agrees that upon leaving
the employment of the Company, he will place all such notes and records in the
Company's possession, and will not take with him, without the consent of the
Company's Board of Directors, any notes and records relating to or connected
with the business, work or investigations of the Company, its affiliates and
subsidiaries, or any of them, including drawings, blueprints or other
reproduction.
23
(c) Xxxxxxxx further agrees that any secret apparatus, secret
equipment, secret formula, secret method or process of the Company, whether or
not developed by Xxxxxxxx, will not be disclosed to any third party or used by
Xxxxxxxx except in connection with his duties to the Company or unless Xxxxxxxx
shall first secure the consent of the Company's Board of Directors, either
during his employment or after his employment by the Company shall have
terminated.
11. Notice. Any notice required or permitted hereunder shall be given
in writing and delivered to the other party by U.S. registered or certified
mail; if to the Company at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, if to
Xxxxxxxx at the same address, or in each case at such other address provided in
writing to the other party.
12. Entire Agreement and Amendment. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements, whether
written or oral, relating to the subject matter herein. Any amendment hereto
shall be in writing and executed by the duly authorized representatives of each
party.
13. Choice of Law. This Agreement shall be construed in accordance with
the laws of the State of Ohio.
14. Severability. If any portion of this Agreement shall be held
unenforceable for any reason, the same shall not affect the validity or
enforceability of the remaining provisions contained herein.
24
15. Headings. The Section headings used in this Agreement are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WITNESSES: DURAMED PHARMACEUTICALS, INC.
("Company")
/S/ Xxxxx X. Xxxx By: /S/ Xxxxx X. Xxxxxx
------------------------------------ -------------------------------
Xxxxx X. Xxxx Xxxxx X. Xxxxxx
11/30/00
/S/ Xxxxx X. Xxxxxx /S/ E. Xxxxxx Xxxxxxxx
------------------------------------ -------------------------------
Xxxxx X. Xxxxxx E. Xxxxxx Xxxxxxxx
11/1/00 ("Xxxxxxxx")
/S/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxx
11/1/00
25
Attachment I
The number of Option Shares purchasable upon the exercise of each
Option and the Option Price shall be subject to adjustment as follows:
(a) In case the Company shall at any time (i) declare or pay a
dividend in shares of Common Stock, (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares of Common
Stock or (iv) issue any shares of its capital stock in a
reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which
the Company is the continuing entity), the number of Option Shares
purchasable upon vesting and exercise of each Option held immediately
prior thereto shall be adjusted so that the holder of each Option shall
be entitled to receive the kind and number of Option Shares or other
securities of the Company which he would have owned or have been
entitled to receive after the happening of any of the events described
above, had such Options been vested and exercised immediately prior to
the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In case the Company shall issue rights, options or
warrants to all holders of its outstanding Common Stock entitling them
(for a period within 45 days after the record date mentioned below) to
subscribe for or purchase shares of Common Stock at a price per share
which is lower at the record date mentioned below than the then current
market price per share of Common Stock (as defined in paragraph (e)
below), the number of Option Shares thereafter purchasable upon the
exercise of each Option shall be determined by multiplying the number
of Option Shares theretofore purchasable upon exercise of each Option
by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of additional shares of Common
Stock offered for subscription or purchase, and the denominator of
which shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights, options or warrants plus the number of
shares which the aggregate offering price of the total number of shares
of Common Stock so offered would purchase at the current market price
per share of Common Stock at such record date. Such adjustment shall be
made whenever such rights, options or warrants are issued, and shall
become effective immediately after the record date for the
determination of stockholders entitled to receive such rights, options
or warrants.
26
(c) In case the Company shall distribute to all holders of its
shares of Common Stock evidences of its indebtedness or assets
(including cash dividends or distributions in excess of 25% of
consolidated earnings or earned surplus legally available for payment
of dividends at the time of the declaration of any such dividend or
distribution payable out of consolidated earnings or earned surplus,
but excluding dividends or distributions referred to in paragraph (a)
above or in the paragraph immediately following this paragraph) or
rights, options or warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common
Stock (excluding those referred to in paragraph (b) above), then in
each case the number of Option Shares thereafter purchasable upon the
exercise of each Option shall be determined by multiplying the number
of Option Shares theretofore purchasable upon the exercise of each
Option by a fraction, of which the numerator shall be the then current
market price per share of Common Stock (as defined in paragraph (e)
below) on the date of such distribution, and of which the denominator
shall be the then current market price per share of Common Stock, less
the then fair value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the portion of the
assets or evidences of indebtedness so distributed or of such
subscription rights, options or warrants, or of such convertible or
exchangeable securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and
shall become effective on the date of distribution retroactive to the
record date for the determination of shareholders entitled to receive
such distribution.
In the event of a distribution by the Company to all holders
of its shares of Common Stock of stock of a subsidiary or securities
convertible into or exercisable for such stock, then in lieu of an
adjustment in the number of Option Shares purchasable upon the exercise
of each Option, the holder of each Option, upon the exercise thereof at
any time after such distribution, shall be entitled to receive from the
Company, such subsidiary or both, as the Company shall determine, the
stock or other securities to which such holder would have been entitled
if such Holder had exercised such Option immediately prior thereto, all
subject to further adjustment as provided in this Attachment I;
provided, however, that no adjustment in respect of dividends or
interest on such stock or other securities shall be made during the
term of an Option or upon the exercise of an Option other than an
adjustment which would be required pursuant to this Attachment I;
27
(d) For the purpose of any computation under paragraphs (b)
and (c) of this Attachment I, the current market price per share of
Common Stock at any date shall be the average of the daily closing
prices for 20 consecutive trading days commencing 30 trading days
before the date of such computation. The closing price for each day
shall be the last such reported sales price regular way or, in case no
such reported sale takes place on such day, the average of the closing
bid and asked prices regular way for such day, in each case on the
principal national securities exchange or in the NASDAQ-National Market
System to which the shares of Common Stock are listed or admitted to
trading or, if not listed or admitted to trading, the average of the
closing bid and asked prices of the Common Stock in the
over-the-counter market as reported by NASDAQ or any comparable system.
In the absence of one or more such quotations, the Company shall
determine the current market price on the basis of such quotations as
it considers appropriate.
(e) No adjustment in the number of Option Shares purchasable
hereunder shall be required unless such adjustment would result in an
increase or decrease of at least one percent (1%) of the Option Price;
provided, however, that any adjustments which by reason of this
paragraph (e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations shall
be made to the nearest cent or to the nearest one-thousandth of a
share, as the case may be.
(f) Whenever the number of Option Shares purchasable upon the
exercise of each Option is adjusted pursuant to paragraphs (a), (b) or
(c) above the Option Price payable upon exercise of each Option shall
be adjusted by multiplying such Option Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the number of
Option Shares purchasable upon the exercise of each Option immediately
prior to such adjustment, and of which the denominator shall be the
number of Option shares purchasable immediately thereafter.
(g) No adjustment in the number of Option Shares purchasable
upon the exercise of each Option need be made under paragraphs (b) or
(c) if the Company issues or distributes to each holder of Options the
shares, rights, options, warrants, or convertible or exchangeable
securities, or evidences of indebtedness or assets referred to in those
paragraphs which each holder of Options would have been entitled to
receive had the Options been exercised prior to the happening of such
event or the record date with respect thereto. No adjustment in the
number of Options Shares purchasable upon the exercise of each Option
need be made for sales or issuances of Common Stock pursuant to (i) a
Company plan for reinvestment of dividends or interest, or (ii) options
or warrants or agreements to issue options or warrants outstanding on
the date hereof.
28
(h) For the purpose of this Attachment I, the term "shares of
Common Stock" shall mean (i) the class of stock designated as the
Common Stock of the Company at the date of this Agreement, or (ii) any
other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par
value. In the event that at any time, as a result of an adjustment made
pursuant to paragraph (a) above, the Holders shall become entitled to
purchase any securities of the Company other than shares of Common
Stock, thereafter the number of such other shares so purchasable upon
exercise of each Option and the Option Price of such shares shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Option Shares contained in paragraphs (a) through (h), inclusive,
above.
(i) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges, if any thereof shall not have been
exercised, the Option Price and the number of shares of Common Stock
purchasable upon the exercise of each Option shall, upon such
expiration, be readjusted and shall thereafter be such as it would have
been had it been originally adjusted (or had the original adjustment
not been required, as the case may be) as if (A) the only shares of
Common Stock so issued were the shares of Common Stock, if any,
actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange privileges and (B) such shares of
Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or
conversion or exchange privileges whether or not exercised; provided,
further, that no such readjustment shall have the effect of increasing
the Option Price or decreasing the number of shares of Common Stock
purchasable upon the exercise of each Option by an amount in excess of
the amount of the adjustment initially made in respect to the Issuance,
sale or grant of such rights, options, warrants or conversion or
exchange privileges.
29
EXHIBIT 10.11 (IX)
CHANGE IN CONTROL CONTINGENT EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 8th day of September 2000, by and
between Duramed Pharmaceuticals, Inc., a Delaware corporation (the "Company"),
and XXXXXXX X. XXXXXXXX of the Company (the "Employee"),
W I T N E S S E T H:
WHEREAS, sudden takeovers, acquisitions or changes of control of
domestic corporations have occurred frequently in recent years, and current
conditions may contribute to the continuation or acceleration of this trend; and
WHEREAS, the possibility of a sudden takeover, acquisition or change in
control can create uncertainty of employment and may cause the loss of valuable
Company employees, to the detriment of the Company and its shareholders; and
WHEREAS, it is believed that the detriment described can be
substantially reduced by an agreement on the terms hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter set forth, IT IS AGREED:
30
(1) Continued Employment. If a Change in Control (as defined hereafter)
occurs when the Employee is employed by the Company, the Company will, at the
election of the Employee, continue thereafter to employ the Employee, in
accordance with the terms and provisions of this Agreement, for a period of
three (3) years following the date of the Change in Control (the "Employment
Period").
As used herein, the phrase "Change in Control" of the Company means the
first to occur of the following:
(a) The acquisition of more than thirty percent (30%) of the
outstanding shares of voting stock of the Company by any person or entity or
group thereof acting in concert, excluding affiliates of the Company, by means
of an offer made publicly to the holders of all or substantially all of the
outstanding shares of the voting stock of the Company to acquire such shares for
cash, securities, other property or any combination thereof; or
(b) Any person or entity achieves, subsequent to the date of
this Agreement, beneficial ownership of thirty percent (30%) or more of the then
issued and outstanding voting common stock of the Company in any manner other
than a purchase of such stock directly from the Company for cash; or
(c) The sale, assignment or transfer by the Company of all or
substantially all of its business or assets, in a transaction or related series
of transactions, except any such sales to affiliates of the Company; or
31
(d) The Company merges or consolidates or reorganizes with or
into any other corporation or corporations other than its affiliates or engages
in any other similar business combination or reorganization; or
(e) A majority of the Board of Directors of the Company does
not consist of persons who were serving in the capacity on the date of this
Agreement, or who were appointed or nominated to serve as a Director by such
persons or by persons who were themselves so appointed or nominated.
(2) Duties. Unless otherwise agreed by the Company and Employee, during
the Employment Period the Employee shall be employed by the Company in the same
position as that which the Employee held on the date of the Change in Control of
the Company. In such employment, the Employee's duties and authority shall
consist of and include all duties and authority customarily performed and held
by a person holding an equivalent position with a corporation of similar nature
and size, as such duties and authority related to such position are reasonably
defined and delegated from time to time by the Board of Directors of the
Company. However, no change of the Employee's location of employment to outside
the Cincinnati, Ohio area, or in the Employee's title, shall be made without the
prior written consent of the Employee. The Employee shall have the powers
necessary to perform the duties assigned and shall be provided such supporting
services, staff, secretarial and other assistance, office space and
accouterments as shall be reasonably necessary and appropriate in light of the
duties assigned
32
(but in no event, in any case, smaller in size or lesser in quality than that
being furnished to the Employee on the date of the Change in Control of the
Company).
The Employee shall devote his entire business time, energy and skills
to such employment while so employed, but the Employee shall not be required to
devote more than an average of approximately 45 hours per calendar week to such
employment. The Employee shall be entitled to a minimum of paid vacation
annually equal to that which he or she was entitled immediately prior to the
Change in Control. The Employee shall have the sole discretion to determine the
time and intervals of such vacation.
(3) Compensation. During the Employment Period, the Employee shall be
compensated as follows:
(a) The Employee shall receive a salary equal to his or her
salary as in effect as of the date of the Change in Control of the Company
("Base Salary"), subject to adjustment as hereinafter provided.
(b) The Employee shall be reimbursed for any and all monies
advanced in connection with his or her employment for reasonable and necessary
expenses incurred on behalf of the Company.
(c) The Employee shall be included to the extent eligible
thereunder in any and all plans providing benefits for the Company's employees,
including, but no limited to, life, accidental death and dismemberment, long
term disability, hospitalization, medical and retirement, and be provided any
and all other benefits and perquisites (including use of an
33
automobile) made available to other employees of comparable status, at the
expense of the Company on a comparable basis.
(d) The Employee shall be included in all incentive stock
option programs, profit sharing, bonus, deferred compensation, split dollar life
insurance, and similar or comparable plans customarily extended by the Company
to corporate officers and key employees of the Company.
(4) Annual Compensation Adjustments. The Board of Directors of the
Company or an appropriate committee thereof will consider and appraise the
contributions of the Employee to the Company's operating efficiency, growth,
production and profits, at least annually during the Employment Period, and in
accordance with past practice, the Employee's Base Salary shall be annually
adjusted upward to be commensurate with increases given to other corporate
officers and key employees generally and as the scope and success of the
Company's operations or the Employee's duties expand.
5. Indemnification. To the extent permitted by law, the Company shall
pay, indemnify and hold the Employee harmless from any liability, cost or
expense (including, without limitation, reasonable attorney's fees) incurred by
the Employee in the defense of any claim, proceeding or action arising out of
his performance of services for the Company, or out of his or her status as an
officer or director of the Company or while serving at the request of the
Company as an officer, director, partner or employee of any other entity.
Notwithstanding the
34
foregoing, the Company shall not indemnify the Employee against any act or
omission by the Employee constituting fraud, willful misconduct or gross
negligence.
6. Termination. The following provisions of this Section 6 shall apply
only during the Employment Period:
(a) Involuntary. In the event of the death of the Employee or
his permanent disability to perform the services required hereunder, the
obligations of the Company under Sections 1, 3 and 4 of this Agreement shall be
terminated. For purposes of this Agreement, the term "disability" shall be
defined as a physical or mental disability or disease which in the opinion of an
independent qualified physician appointed by the Company prevents the Employee
from discharging the customary normal duties of his employment with the Company.
In the event of the Employee's death or disability during the Employment Period,
the Employee or his or her estate shall be entitled to receive deferred
compensation at a monthly rate equal to fifty percent (50%) of the average
monthly Base Salary paid to him or her during the twelve (12) month period prior
to death or disability. Such amount shall be paid in monthly installments over
the remaining term of the Employment Period. In the event of disability, the
amount payable hereunder shall be reduced by the amount of disability income
insurance proceeds paid to the Employee during the remaining term of the
Employment Period.
(b) Cause. The Company may terminate the Employee's employment
for Cause. For purposes of this Agreement, "Cause"shall mean:
35
(i) the willful and continued failure of the Employee
to perform substantially his or her duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Employee by the Employee's supervisor or the Chief Executive
Officer of the Company which specifically identifies the manner in which the
Employee's supervisor or the Chief Executive Officer believes that the Employee
has not substantially performed his duties, or
(ii) the willful engaging by the Employee in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company. For purposes of this provision, no act or failure to act, on the
part of the Employee, shall be considered "willful"unless it is done, or omitted
to be done, by the Employee in bad faith or without reasonable belief that his
or her action or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Employee in good
faith and in the best interests of the Company.
(c) Good Reason. The Employee's employment may be terminated
by the Employee for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean:
(i) the assignment to the Employee of any duties
inconsistent with the Employee's position (including status, offices, titles and
reporting requirements), authority,
36
duties or responsibilities as contemplated by Section 1 of this Agreement, or
any other action by the Company which results in a diminution in such position,
authority, duties or responsibilities;
(ii) any failure by the Company to comply with any of
the provision of Section 3 of this Agreement;
(iii) the Company's requiring the Employee to be
based at any office or location other than within twenty-five miles of
Cincinnati, Ohio or the Company's requiring the Employee to travel on Company
business to a substantially greater extent than required immediately prior to
the date of this Agreement; or
(iv) any purported termination by the Company of the
Employee's employment otherwise than as expressly permitted by this Agreement;
or
(v) the continued failure of the Company to perform
substantially its obligations under this Agreement after a written demand for
substantial performance is delivered by the Employee to the Company's Chief
Executive Officer which specifically identifies the manner in which the Employee
believes the Company has not substantially carried out its obligations.
Notwithstanding the above, "Good Reason" shall exclude an
isolated, insubstantial and inadvertent action or failure to act not taken or
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Employee.
For purposes of this Section 6(c), any good faith
determination of "Good Reason" by the Employee shall be conclusive.
37
Anything in this Agreement to the contrary notwithstanding, a
termination by the Employee for any reason during the six-month period
immediately following a Change in Control shall be deemed to be a termination
for Good Reason for all purposes of this Agreement.
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Employee for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 16 of
this Agreement. For purposes of this Agreement, a Notice of Termination means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated and (iii) if the Date
of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Employee or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause, respectively, shall not
preclude the Employee or the Company, respectively, from asserting such fact or
circumstance in enforcing the Employee's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Employee's employment is terminated by the Company for Cause, or by the
Employee for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be; (ii) if the Employee's
employment is terminated by the Company other than for Cause, the
38
Date of Termination shall be the date on which the Company notifies him or her
of such termination; and (iii) if the Employee's employment is terminated by
reason of death or disability, the Date of Termination shall be the date of
death of the Employee or the disability, as the case may be.
7. Obligations of the Company upon Termination. The following
provisions of this Section 7 shall apply only in the event of termination during
the Employment Period:
(a) Good Reason; Other Than for Cause. If the Company shall
terminate the Employee's employment during the Employment Period other than for
Cause or death or disability or the Employee shall terminate employment for Good
Reason:
(i) the Company shall pay to the Employee in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) the Employee's then annual Base
Salary through the Date of Termination to the extent not theretofore paid, (2)
the product of (x) annual bonus paid or payable under the Company's bonus plans,
including any bonus or portion thereof which has been earned but deferred (and
annualized for any fiscal year consisting of less than twelve full months), for
the most recently completed fiscal year (the "Annual Bonus") and (y) a fraction,
the numerator of which is the number of days in the current fiscal year through
the Date of Termination, and the denominator of which is 365 and (3) any
compensation previously deferred by the Employee (together with any accrued
interest or earnings thereon) and any accrued
39
vacation pay, in each case to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) shall be hereinafter referred to
as the "Accrued Obligations"); and
B. an amount equal to two times the sum of the Base
Salary and the Annual Bonus paid to the Employee during the most recently
completed fiscal year.
(ii) for 2 years after the Employee's Date of Termination, or
such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to the Employee
and/or the Employee's family at least equal to those which would have been
provided to them if the Employee's employment had not been terminated or, if
more favorable to the Employee, as in effect generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies and their families, provided, however, that if the Employee becomes
reemployed with another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility;
(iii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Employee any other amounts or
benefits required to be paid or provided or which the Employee is entitled to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits"); and
40
(iv) all unvested options to purchase shares of Common Stock
of the Company then held by the Employee shall vest immediately.
(b) Cause; other than for Good Reason. If the Employee's
employment shall be terminated during the Employment Period for Cause, this
Agreement shall terminate without further obligations to the Employee other than
the obligation to pay to the Employee (x) his Base Salary through the Date of
Termination and (y) the amount of any compensation previously deferred by the
Employee in each case to the extent theretofore unpaid. If the Employee
voluntarily terminates employment during the Employment Period, excluding a
termination for Good Reason, this Agreement shall terminate without further
obligations to The Employee, other than for Accrued Obligations and the timely
payment or provision of Other Benefits. In such case, all Accrued Obligations
shall be paid to the Employee in a lump sum in cash within 30 days of the Date
of Termination.
8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Employee (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 8) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the United States Internal Revenue Code (the "Code")
or any interest or penalties are incurred by the Employee with respect to such
excise tax (such excise tax, together with any such interest
41
and penalties, are hereinafter collectively referred to as the "Excise Tax"),
then the Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the Employee of all
taxes and any benefits that result from the deductibility by the Employee of
such taxes (including, in each case, any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a Gross-up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Ernst & Young or such other certified public accounting firm as may be
designated by the Employee (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Employee within 15 business
days of the receipt of notice from the Employee that there has been a Payment,
or such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change in Control, the Employee shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any
42
Gross-Up Payment, as determined pursuant to this Section 8, shall be paid by the
Company to the Employee within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Employee. As a result of the uncertainty in the application
of section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 8(c) and the Employee
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment, along with any penalty and interest imposed with respect to such
Underpayment, shall be promptly paid by the Company to or for the benefit of the
Employee.
(c) The Employee shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Employee is
informed in writing of such claim and shall apprize the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Employee shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Employee
43
in writing prior to the expiration of such period that it desires to contest
such claim, the Employee shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided, however, that the Company shall
bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold
the Employee harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 8(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Employee to pay the tax claimed and xxx for a
refund or
44
contest the claim in any permissible manner, and the Employee agrees to
prosecute such contest to a determination before any administrative tribunal, in
courts, as the Company shall determine; provided, however, that if the Company
directs the Employee to pay such claim and xxx for a refund, the Company shall
advance the amount of such payment to the Employee, on an interest-free basis
and shall indemnify and hold the Employee harmless, on an after-tax basis from
any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Employee with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 8(a) or 8(c), the Employee becomes
entitled to receive any refund with respect to such claim, the Employee shall
(subject to the Company's complying with the requirements of Section 8(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Employee of an amount advance by the Company pursuant to Section
8(c), a determination is made that the Employee shall not be entitled to any
refund with respect to such claim and the
45
Company does not notify the Employee in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
9. Confidentiality.
The Employee will not at any time during the term of this
Agreement or thereafter, except as authorized by the Company, divulge, furnish
or make accessible to any person, firm, corporation or other entity, any
confidential information or any other information that is otherwise not publicly
available which he or she presently possesses or which he or she may obtain
during the course of his or her employment with respect to the business,
customers or affairs of the Company or any subsidiary or affiliate of the
Company or trade secrets, developments, know-how, methods or other information
or data pertaining to practices, equipment, developments or any confidential or
secret aspect of the business of the Company or any subsidiary or affiliate of
the Company, and agrees that all such matters and information shall be kept
strictly and absolutely confidential. The Employee, upon termination of his or
her employment, irrespective of the time, manner or cause of termination, will
surrender and deliver to the Company all lists, books, records and data of every
kind relating to or in connection with the business of the Company or any
subsidiary or affiliate of the Company, and all property belonging to the
Company and any subsidiary or affiliate of the Company.
46
10. Special Undertaking.
(a) The Employee hereby assigns and agrees to assign to the
Company, all inventions which he or she makes or conceives alone or jointly with
others, while employed by the Company, which inventions relate to matter within
the normal scope of the Employee's duties or field of responsibility or depend
upon his or her knowledge of trade secrets or other information of a
confidential nature belonging to the Company or which relate to tasks assigned
to the Employee by the Company. The Employee agrees to disclose promptly and
fully all such inventions to the Company and to assist the Company to obtain
patents thereon in any or all countries where protection is needed. All such
inventions shall be the property of the Company whether patented or not. If any
application for Letters Patent for any inventions, discoveries and improvements
are filed by the Employee during the period of one year after termination of the
Employee's employment with the Company, the subject matter covered therein shall
be conclusively presumed to have been conceived during employment by the
Company.
(b) The Employee further agrees that any and all notes and
records kept or made in connection with his or her employment or in relation to
any such inventions, discoveries and improvements, whether made or conceived in
the regular performance of employment or otherwise, shall be and are the sole
and exclusive property of the Company; and the Employee further agrees that upon
leaving the employment of the Company, he or she will place all such notes and
records in the Company's possession, and will not take with him, without the
consent of the Company's Board of Directors, any notes and records relating to
or connected with the
47
business, work or investigations of the Company, its affiliates and
subsidiaries, or any of them, including drawings, blueprints or other
reproduction.
(c) The Employee further agrees that any secret apparatus,
secret equipment, secret formula, secret method or process of the Company,
whether or not developed by the Employee, will not be disclosed to any third
party or used by the Employee except in connection with his duties to the
Company or unless the Employee shall first secure the consent of the Company's
Board of Directors, either during his or her employment or after his or her
employment by the Company shall have terminated.
11. Enforceability. The parties agrees that nothing in this Agreement
shall in any way abrogate the right of the Company and the Employee to enforce
by injunction or otherwise the due and proper performance and observance of the
several covenants herein contained to be performed by the Employee or the
Company or to recover damages for breach thereof.
12. Successors and Assigns. If the Company sells, assigns or transfers
all or substantially all of its business and assets to any person, excluding
affiliates of the Company, or if the Company merges into or consolidates or
otherwise combines with any person which is a continuing or successor entity,
then the Company shall assign all of its right, title and interest in this
Agreement as of the date of such event to the person which is either the
acquiring or successor corporation, and such person(s) shall assume and perform
from and after the date of such assignment all of the terms, conditions and
provisions imposed by this Agreement upon the Company. In case of such
assignment by the Company and of assumption and agreement by
48
such person(s), all further rights as well as all other obligations of the
Company under this Agreement thenceforth shall cease and terminate and
thereafter the expression "the Company" wherever used herein shall be deemed to
mean such person(s).
13. Supplemental Compensation. This Agreement supplements, and is not
an amendment to or in derogation of, any other agreement between the Company and
the Employee relating to the employment or the terms and conditions thereof
except that it replaces any existing "Contingent Change in Control Employment
Agreement" between the Employee and the Company. No person, other than such
person as may be designated by the Board of Directors of the Company, shall have
any authority on behalf of the Company to agree to modify or change this
Agreement.
14. Severability. This Agreement is to be governed by and construed
under the laws of the State of Ohio. If any provision of this Agreement shall be
held invalid and unenforceable for any reason, such provision shall be deemed
deleted and the remainder of the Agreement shall be valid and enforceable
without such provision.
15. Termination of Agreement. The Company has the right to terminate
the employment of the Employee except during the Employment Period or in
contemplation of a Change in Control of the Company, and the Employee may elect
at his or her discretion to terminate his or her employment, at any time prior
to a Change in Control of the Company, in either of which events this Agreement
shall terminate.
49
16. Notice. Any notice required or permitted hereunder shall be given
in writing and delivered to the other party by U. S. registered or certified
mail; if to the Company at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, if to the
Executive at the same address, or in each case at such other address provided in
writing to the other party.
17. Headings. The Section headings used in this Agreement are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its corporate seal affixed and attested by its duly authorized
officers, and the Employee has hereunto set his hand and seal as of the date
first above written.
DURAMED PHARMACEUTICALS, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
(Corporate Seal) Xxxxxxx X. Xxxxxxxx, Employee
50
EXHIBIT 10.11 (IX)
CHANGE IN CONTROL CONTINGENT EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 8th day of September 2000, by and
between Duramed Pharmaceuticals, Inc., a Delaware corporation (the "Company"),
and XXXXXXXX X. XXXXXXXXX of the Company (the "Employee"),
W I T N E S S E T H:
WHEREAS, sudden takeovers, acquisitions or changes of control of
domestic corporations have occurred frequently in recent years, and current
conditions may contribute to the continuation or acceleration of this trend; and
WHEREAS, the possibility of a sudden takeover, acquisition or change in
control can create uncertainty of employment and may cause the loss of valuable
Company employees, to the detriment of the Company and its shareholders; and
WHEREAS, it is believed that the detriment described can be
substantially reduced by an agreement on the terms hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter set forth, IT IS AGREED:
51
(1) Continued Employment. If a Change in Control (as defined hereafter)
occurs when the Employee is employed by the Company, the Company will, at the
election of the Employee, continue thereafter to employ the Employee, in
accordance with the terms and provisions of this Agreement, for a period of
three (3) years following the date of the Change in Control (the "Employment
Period").
As used herein, the phrase "Change in Control" of the Company means the
first to occur of the following:
(a) The acquisition of more than thirty percent (30%) of the
outstanding shares of voting stock of the Company by any person or entity or
group thereof acting in concert, excluding affiliates of the Company, by means
of an offer made publicly to the holders of all or substantially all of the
outstanding shares of the voting stock of the Company to acquire such shares for
cash, securities, other property or any combination thereof; or
(b) Any person or entity achieves, subsequent to the date of
this Agreement, beneficial ownership of thirty percent (30%) or more of the then
issued and outstanding voting common stock of the Company in any manner other
than a purchase of such stock directly from the Company for cash; or
(c) The sale, assignment or transfer by the Company of all or
substantially all of its business or assets, in a transaction or related series
of transactions, except any such sales to affiliates of the Company; or
52
(d) The Company merges or consolidates or reorganizes with or
into any other corporation or corporations other than its affiliates or engages
in any other similar business combination or reorganization; or
(e) A majority of the Board of Directors of the Company does
not consist of persons who were serving in the capacity on the date of this
Agreement, or who were appointed or nominated to serve as a Director by such
persons or by persons who were themselves so appointed or nominated.
(2) Duties. Unless otherwise agreed by the Company and Employee, during
the Employment Period the Employee shall be employed by the Company in the same
position as that which the Employee held on the date of the Change in Control of
the Company. In such employment, the Employee's duties and authority shall
consist of and include all duties and authority customarily performed and held
by a person holding an equivalent position with a corporation of similar nature
and size, as such duties and authority related to such position are reasonably
defined and delegated from time to time by the Board of Directors of the
Company. However, no change of the Employee's location of employment to outside
the Cincinnati, Ohio area, or in the Employee's title, shall be made without the
prior written consent of the Employee. The Employee shall have the powers
necessary to perform the duties assigned and shall be provided such supporting
services, staff, secretarial and other assistance, office space and
accouterments as shall be reasonably necessary and appropriate in light of the
duties assigned
53
(but in no event, in any case, smaller in size or lesser in quality than that
being furnished to the Employee on the date of the Change in Control of the
Company).
The Employee shall devote his entire business time, energy and skills
to such employment while so employed, but the Employee shall not be required to
devote more than an average of approximately 45 hours per calendar week to such
employment. The Employee shall be entitled to a minimum of paid vacation
annually equal to that which he or she was entitled immediately prior to the
Change in Control. The Employee shall have the sole discretion to determine the
time and intervals of such vacation.
(3) Compensation. During the Employment Period, the Employee shall be
compensated as follows:
(a) The Employee shall receive a salary equal to his or her
salary as in effect as of the date of the Change in Control of the Company
("Base Salary"), subject to adjustment as hereinafter provided.
(b) The Employee shall be reimbursed for any and all monies
advanced in connection with his or her employment for reasonable and necessary
expenses incurred on behalf of the Company.
(c) The Employee shall be included to the extent eligible
thereunder in any and all plans providing benefits for the Company's employees,
including, but no limited to, life, accidental death and dismemberment, long
term disability, hospitalization, medical and retirement, and be provided any
and all other benefits and perquisites (including use of an
54
automobile) made available to other employees of comparable status, at the
expense of the Company on a comparable basis.
(d) The Employee shall be included in all incentive stock
option programs, profit sharing, bonus, deferred compensation, split dollar life
insurance, and similar or comparable plans customarily extended by the Company
to corporate officers and key employees of the Company.
(4) Annual Compensation Adjustments. The Board of Directors of the
Company or an appropriate committee thereof will consider and appraise the
contributions of the Employee to the Company's operating efficiency, growth,
production and profits, at least annually during the Employment Period, and in
accordance with past practice, the Employee's Base Salary shall be annually
adjusted upward to be commensurate with increases given to other corporate
officers and key employees generally and as the scope and success of the
Company's operations or the Employee's duties expand.
5. Indemnification. To the extent permitted by law, the Company shall
pay, indemnify and hold the Employee harmless from any liability, cost or
expense (including, without limitation, reasonable attorney's fees) incurred by
the Employee in the defense of any claim, proceeding or action arising out of
his performance of services for the Company, or out of his or her status as an
officer or director of the Company or while serving at the request of the
Company as an officer, director, partner or employee of any other entity.
Notwithstanding the
55
foregoing, the Company shall not indemnify the Employee against any act or
omission by the Employee constituting fraud, willful misconduct or gross
negligence.
6. Termination. The following provisions of this Section 6 shall apply
only during the Employment Period:
(a) Involuntary. In the event of the death of the Employee or
his permanent disability to perform the services required hereunder, the
obligations of the Company under Sections 1, 3 and 4 of this Agreement shall be
terminated. For purposes of this Agreement, the term "disability" shall be
defined as a physical or mental disability or disease which in the opinion of an
independent qualified physician appointed by the Company prevents the Employee
from discharging the customary normal duties of his employment with the Company.
In the event of the Employee's death or disability during the Employment Period,
the Employee or his or her estate shall be entitled to receive deferred
compensation at a monthly rate equal to fifty percent (50%) of the average
monthly Base Salary paid to him or her during the twelve (12) month period prior
to death or disability. Such amount shall be paid in monthly installments over
the remaining term of the Employment Period. In the event of disability, the
amount payable hereunder shall be reduced by the amount of disability income
insurance proceeds paid to the Employee during the remaining term of the
Employment Period.
(b) Cause. The Company may terminate the Employee's employment
for Cause. For purposes of this Agreement, "Cause"shall mean:
56
(i) the willful and continued failure of the Employee
to perform substantially his or her duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Employee by the Employee's supervisor or the Chief Executive
Officer of the Company which specifically identifies the manner in which the
Employee's supervisor or the Chief Executive Officer believes that the Employee
has not substantially performed his duties, or
(ii) the willful engaging by the Employee in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company. For purposes of this provision, no act or failure to act, on the
part of the Employee, shall be considered "willful"unless it is done, or omitted
to be done, by the Employee in bad faith or without reasonable belief that his
or her action or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Employee in good
faith and in the best interests of the Company.
(c) Good Reason. The Employee's employment may be terminated
by the Employee for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean:
(i) the assignment to the Employee of any duties
inconsistent with the Employee's position (including status, offices, titles and
reporting requirements), authority,
57
duties or responsibilities as contemplated by Section 1 of this Agreement, or
any other action by the Company which results in a diminution in such position,
authority, duties or responsibilities;
(ii) any failure by the Company to comply with any of
the provision of Section 3 of this Agreement;
(iii) the Company's requiring the Employee to be
based at any office or location other than within twenty-five miles of
Cincinnati, Ohio or the Company's requiring the Employee to travel on Company
business to a substantially greater extent than required immediately prior to
the date of this Agreement; or
(iv) any purported termination by the Company of the
Employee's employment otherwise than as expressly permitted by this Agreement;
or
(v) the continued failure of the Company to perform
substantially its obligations under this Agreement after a written demand for
substantial performance is delivered by the Employee to the Company's Chief
Executive Officer which specifically identifies the manner in which the Employee
believes the Company has not substantially carried out its obligations.
Notwithstanding the above, "Good Reason" shall exclude an
isolated, insubstantial and inadvertent action or failure to act not taken or
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Employee.
For purposes of this Section 6(c), any good faith
determination of "Good Reason" by the Employee shall be conclusive.
58
Anything in this Agreement to the contrary notwithstanding, a
termination by the Employee for any reason during the six-month period
immediately following a Change in Control shall be deemed to be a termination
for Good Reason for all purposes of this Agreement.
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Employee for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 16 of
this Agreement. For purposes of this Agreement, a Notice of Termination means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated and (iii) if the Date
of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Employee or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause, respectively, shall not
preclude the Employee or the Company, respectively, from asserting such fact or
circumstance in enforcing the Employee's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Employee's employment is terminated by the Company for Cause, or by the
Employee for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be; (ii) if the Employee's
employment is terminated by the Company other than for Cause, the
59
Date of Termination shall be the date on which the Company notifies him or her
of such termination; and (iii) if the Employee's employment is terminated by
reason of death or disability, the Date of Termination shall be the date of
death of the Employee or the disability, as the case may be.
7. Obligations of the Company upon Termination. The following
provisions of this Section 7 shall apply only in the event of termination during
the Employment Period:
(a) Good Reason; Other Than for Cause. If the Company shall
terminate the Employee's employment during the Employment Period other than for
Cause or death or disability or the Employee shall terminate employment for Good
Reason:
(i) the Company shall pay to the Employee in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) the Employee's then annual Base
Salary through the Date of Termination to the extent not theretofore paid, (2)
the product of (x) annual bonus paid or payable under the Company's bonus plans,
including any bonus or portion thereof which has been earned but deferred (and
annualized for any fiscal year consisting of less than twelve full months), for
the most recently completed fiscal year (the "Annual Bonus") and (y) a fraction,
the numerator of which is the number of days in the current fiscal year through
the Date of Termination, and the denominator of which is 365 and (3) any
compensation previously deferred by the Employee (together with any accrued
interest or earnings thereon) and any accrued
60
vacation pay, in each case to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) shall be hereinafter referred to
as the "Accrued Obligations"); and
B. an amount equal to two times the sum of the Base
Salary and the Annual Bonus paid to the Employee during the most recently
completed fiscal year.
(ii) for 2 years after the Employee's Date of Termination, or
such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to the Employee
and/or the Employee's family at least equal to those which would have been
provided to them if the Employee's employment had not been terminated or, if
more favorable to the Employee, as in effect generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies and their families, provided, however, that if the Employee becomes
reemployed with another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility;
(iii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Employee any other amounts or
benefits required to be paid or provided or which the Employee is entitled to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits"); and
61
(iv) all unvested options to purchase shares of Common Stock
of the Company then held by the Employee shall vest immediately.
(b) Cause; other than for Good Reason. If the Employee's
employment shall be terminated during the Employment Period for Cause, this
Agreement shall terminate without further obligations to the Employee other than
the obligation to pay to the Employee (x) his Base Salary through the Date of
Termination and (y) the amount of any compensation previously deferred by the
Employee in each case to the extent theretofore unpaid. If the Employee
voluntarily terminates employment during the Employment Period, excluding a
termination for Good Reason, this Agreement shall terminate without further
obligations to The Employee, other than for Accrued Obligations and the timely
payment or provision of Other Benefits. In such case, all Accrued Obligations
shall be paid to the Employee in a lump sum in cash within 30 days of the Date
of Termination.
8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Employee (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 8) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the United States Internal Revenue Code (the "Code")
or any interest or penalties are incurred by the Employee with respect to such
excise tax (such excise tax, together with any such interest
62
and penalties, are hereinafter collectively referred to as the "Excise Tax"),
then the Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the Employee of all
taxes and any benefits that result from the deductibility by the Employee of
such taxes (including, in each case, any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a Gross-up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Ernst & Young or such other certified public accounting firm as may be
designated by the Employee (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Employee within 15 business
days of the receipt of notice from the Employee that there has been a Payment,
or such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change in Control, the Employee shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any
63
Gross-Up Payment, as determined pursuant to this Section 8, shall be paid by the
Company to the Employee within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Employee. As a result of the uncertainty in the application
of section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 8(c) and the Employee
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment, along with any penalty and interest imposed with respect to such
Underpayment, shall be promptly paid by the Company to or for the benefit of the
Employee.
(c) The Employee shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Employee is
informed in writing of such claim and shall apprize the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Employee shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Employee
64
in writing prior to the expiration of such period that it desires to contest
such claim, the Employee shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided, however, that the Company shall
bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold
the Employee harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 8(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Employee to pay the tax claimed and xxx for a
refund or
65
contest the claim in any permissible manner, and the Employee agrees to
prosecute such contest to a determination before any administrative tribunal, in
courts, as the Company shall determine; provided, however, that if the Company
directs the Employee to pay such claim and xxx for a refund, the Company shall
advance the amount of such payment to the Employee, on an interest-free basis
and shall indemnify and hold the Employee harmless, on an after-tax basis from
any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Employee with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 8(a) or 8(c), the Employee becomes
entitled to receive any refund with respect to such claim, the Employee shall
(subject to the Company's complying with the requirements of Section 8(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Employee of an amount advance by the Company pursuant to Section
8(c), a determination is made that the Employee shall not be entitled to any
refund with respect to such claim and the
66
Company does not notify the Employee in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
9. Confidentiality.
The Employee will not at any time during the term of this
Agreement or thereafter, except as authorized by the Company, divulge, furnish
or make accessible to any person, firm, corporation or other entity, any
confidential information or any other information that is otherwise not publicly
available which he or she presently possesses or which he or she may obtain
during the course of his or her employment with respect to the business,
customers or affairs of the Company or any subsidiary or affiliate of the
Company or trade secrets, developments, know-how, methods or other information
or data pertaining to practices, equipment, developments or any confidential or
secret aspect of the business of the Company or any subsidiary or affiliate of
the Company, and agrees that all such matters and information shall be kept
strictly and absolutely confidential. The Employee, upon termination of his or
her employment, irrespective of the time, manner or cause of termination, will
surrender and deliver to the Company all lists, books, records and data of every
kind relating to or in connection with the business of the Company or any
subsidiary or affiliate of the Company, and all property belonging to the
Company and any subsidiary or affiliate of the Company.
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10. Special Undertaking.
(a) The Employee hereby assigns and agrees to assign to the
Company, all inventions which he or she makes or conceives alone or jointly with
others, while employed by the Company, which inventions relate to matter within
the normal scope of the Employee's duties or field of responsibility or depend
upon his or her knowledge of trade secrets or other information of a
confidential nature belonging to the Company or which relate to tasks assigned
to the Employee by the Company. The Employee agrees to disclose promptly and
fully all such inventions to the Company and to assist the Company to obtain
patents thereon in any or all countries where protection is needed. All such
inventions shall be the property of the Company whether patented or not. If any
application for Letters Patent for any inventions, discoveries and improvements
are filed by the Employee during the period of one year after termination of the
Employee's employment with the Company, the subject matter covered therein shall
be conclusively presumed to have been conceived during employment by the
Company.
(b) The Employee further agrees that any and all notes and
records kept or made in connection with his or her employment or in relation to
any such inventions, discoveries and improvements, whether made or conceived in
the regular performance of employment or otherwise, shall be and are the sole
and exclusive property of the Company; and the Employee further agrees that upon
leaving the employment of the Company, he or she will place all such notes and
records in the Company's possession, and will not take with him, without the
consent of the Company's Board of Directors, any notes and records relating to
or connected with the
68
business, work or investigations of the Company, its affiliates and
subsidiaries, or any of them, including drawings, blueprints or other
reproduction.
(c) The Employee further agrees that any secret apparatus,
secret equipment, secret formula, secret method or process of the Company,
whether or not developed by the Employee, will not be disclosed to any third
party or used by the Employee except in connection with his duties to the
Company or unless the Employee shall first secure the consent of the Company's
Board of Directors, either during his or her employment or after his or her
employment by the Company shall have terminated.
11. Enforceability. The parties agrees that nothing in this Agreement
shall in any way abrogate the right of the Company and the Employee to enforce
by injunction or otherwise the due and proper performance and observance of the
several covenants herein contained to be performed by the Employee or the
Company or to recover damages for breach thereof.
12. Successors and Assigns. If the Company sells, assigns or transfers
all or substantially all of its business and assets to any person, excluding
affiliates of the Company, or if the Company merges into or consolidates or
otherwise combines with any person which is a continuing or successor entity,
then the Company shall assign all of its right, title and interest in this
Agreement as of the date of such event to the person which is either the
acquiring or successor corporation, and such person(s) shall assume and perform
from and after the date of such assignment all of the terms, conditions and
provisions imposed by this Agreement upon the Company. In case of such
assignment by the Company and of assumption and agreement by
69
such person(s), all further rights as well as all other obligations of the
Company under this Agreement thenceforth shall cease and terminate and
thereafter the expression "the Company" wherever used herein shall be deemed to
mean such person(s).
13. Supplemental Compensation. This Agreement supplements, and is not
an amendment to or in derogation of, any other agreement between the Company and
the Employee relating to the employment or the terms and conditions thereof
except that it replaces any existing "Contingent Change in Control Employment
Agreement" between the Employee and the Company. No person, other than such
person as may be designated by the Board of Directors of the Company, shall have
any authority on behalf of the Company to agree to modify or change this
Agreement.
14. Severability. This Agreement is to be governed by and construed
under the laws of the State of Ohio. If any provision of this Agreement shall be
held invalid and unenforceable for any reason, such provision shall be deemed
deleted and the remainder of the Agreement shall be valid and enforceable
without such provision.
15. Termination of Agreement. The Company has the right to terminate
the employment of the Employee except during the Employment Period or in
contemplation of a Change in Control of the Company, and the Employee may elect
at his or her discretion to terminate his or her employment, at any time prior
to a Change in Control of the Company, in either of which events this Agreement
shall terminate.
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16. Notice. Any notice required or permitted hereunder shall be given
in writing and delivered to the other party by U. S. registered or certified
mail; if to the Company at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, if to the
Executive at the same address, or in each case at such other address provided in
writing to the other party.
17. Headings. The Section headings used in this Agreement are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its corporate seal affixed and attested by its duly authorized
officers, and the Employee has hereunto set his hand and seal as of the date
first above written.
DURAMED PHARMACEUTICALS, INC.
By /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------
(Corporate Seal) Xxxxxxxx X. Xxxxxxxxx, Employee
71
EXHIBIT 10.11 (IX)
CHANGE IN CONTROL CONTINGENT EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 8th day of September 2000, by and
between Duramed Pharmaceuticals, Inc., a Delaware corporation (the "Company"),
and XXXXXXX X. XXXX of the Company (the "Employee"),
W I T N E S S E T H:
WHEREAS, sudden takeovers, acquisitions or changes of control of
domestic corporations have occurred frequently in recent years, and current
conditions may contribute to the continuation or acceleration of this trend; and
WHEREAS, the possibility of a sudden takeover, acquisition or change in
control can create uncertainty of employment and may cause the loss of valuable
Company employees, to the detriment of the Company and its shareholders; and
WHEREAS, it is believed that the detriment described can be
substantially reduced by an agreement on the terms hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter set forth, IT IS AGREED:
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(1) Continued Employment. If a Change in Control (as defined hereafter)
occurs when the Employee is employed by the Company, the Company will, at the
election of the Employee, continue thereafter to employ the Employee, in
accordance with the terms and provisions of this Agreement, for a period of
three (3) years following the date of the Change in Control (the "Employment
Period").
As used herein, the phrase "Change in Control" of the Company means the
first to occur of the following:
(a) The acquisition of more than thirty percent (30%) of the
outstanding shares of voting stock of the Company by any person or entity or
group thereof acting in concert, excluding affiliates of the Company, by means
of an offer made publicly to the holders of all or substantially all of the
outstanding shares of the voting stock of the Company to acquire such shares for
cash, securities, other property or any combination thereof; or
(b) Any person or entity achieves, subsequent to the date of
this Agreement, beneficial ownership of thirty percent (30%) or more of the then
issued and outstanding voting common stock of the Company in any manner other
than a purchase of such stock directly from the Company for cash; or
(c) The sale, assignment or transfer by the Company of all or
substantially all of its business or assets, in a transaction or related series
of transactions, except any such sales to affiliates of the Company; or
73
(d) The Company merges or consolidates or reorganizes with or
into any other corporation or corporations other than its affiliates or engages
in any other similar business combination or reorganization; or
(e) A majority of the Board of Directors of the Company does
not consist of persons who were serving in the capacity on the date of this
Agreement, or who were appointed or nominated to serve as a Director by such
persons or by persons who were themselves so appointed or nominated.
(2) Duties. Unless otherwise agreed by the Company and Employee, during
the Employment Period the Employee shall be employed by the Company in the same
position as that which the Employee held on the date of the Change in Control of
the Company. In such employment, the Employee's duties and authority shall
consist of and include all duties and authority customarily performed and held
by a person holding an equivalent position with a corporation of similar nature
and size, as such duties and authority related to such position are reasonably
defined and delegated from time to time by the Board of Directors of the
Company. However, no change of the Employee's location of employment to outside
the Cincinnati, Ohio area, or in the Employee's title, shall be made without the
prior written consent of the Employee. The Employee shall have the powers
necessary to perform the duties assigned and shall be provided such supporting
services, staff, secretarial and other assistance, office space and
accouterments as shall be reasonably necessary and appropriate in light of the
duties assigned (but in no event, in any case, smaller in size or lesser in
quality than that being furnished to the Employee on the date of the Change in
Control of the Company).
74
The Employee shall devote his entire business time, energy and skills
to such employment while so employed, but the Employee shall not be required to
devote more than an average of approximately 45 hours per calendar week to such
employment. The Employee shall be entitled to a minimum of paid vacation
annually equal to that which he or she was entitled immediately prior to the
Change in Control. The Employee shall have the sole discretion to determine the
time and intervals of such vacation.
(3) Compensation. During the Employment Period, the Employee shall be
compensated as follows:
(a) The Employee shall receive a salary equal to his or her
salary as in effect as of the date of the Change in Control of the Company
("Base Salary"), subject to adjustment as hereinafter provided.
(b) The Employee shall be reimbursed for any and all monies
advanced in connection with his or her employment for reasonable and necessary
expenses incurred on behalf of the Company.
(c) The Employee shall be included to the extent eligible
thereunder in any and all plans providing benefits for the Company's employees,
including, but no limited to, life, accidental death and dismemberment, long
term disability, hospitalization, medical and retirement, and be provided any
and all other benefits and perquisites (including use of an automobile) made
available to other employees of comparable status, at the expense of the Company
on a comparable basis.
75
(d) The Employee shall be included in all incentive stock
option programs, profit sharing, bonus, deferred compensation, split dollar life
insurance, and similar or comparable plans customarily extended by the Company
to corporate officers and key employees of the Company.
(4) Annual Compensation Adjustments. The Board of Directors of the
Company or an appropriate committee thereof will consider and appraise the
contributions of the Employee to the Company's operating efficiency, growth,
production and profits, at least annually during the Employment Period, and in
accordance with past practice, the Employee's Base Salary shall be annually
adjusted upward to be commensurate with increases given to other corporate
officers and key employees generally and as the scope and success of the
Company's operations or the Employee's duties expand.
5. Indemnification. To the extent permitted by law, the Company shall
pay, indemnify and hold the Employee harmless from any liability, cost or
expense (including, without limitation, reasonable attorney's fees) incurred by
the Employee in the defense of any claim, proceeding or action arising out of
his performance of services for the Company, or out of his or her status as an
officer or director of the Company or while serving at the request of the
Company as an officer, director, partner or employee of any other entity.
Notwithstanding the foregoing, the Company shall not indemnify the Employee
against any act or omission by the Employee constituting fraud, willful
misconduct or gross negligence.
6. Termination. The following provisions of this Section 6 shall apply
only during the Employment Period:
76
(a) Involuntary. In the event of the death of the Employee or
his permanent disability to perform the services required hereunder, the
obligations of the Company under Sections 1, 3 and 4 of this Agreement shall be
terminated. For purposes of this Agreement, the term "disability" shall be
defined as a physical or mental disability or disease which in the opinion of an
independent qualified physician appointed by the Company prevents the Employee
from discharging the customary normal duties of his employment with the Company.
In the event of the Employee's death or disability during the Employment Period,
the Employee or his or her estate shall be entitled to receive deferred
compensation at a monthly rate equal to fifty percent (50%) of the average
monthly Base Salary paid to him or her during the twelve (12) month period prior
to death or disability. Such amount shall be paid in monthly installments over
the remaining term of the Employment Period. In the event of disability, the
amount payable hereunder shall be reduced by the amount of disability income
insurance proceeds paid to the Employee during the remaining term of the
Employment Period.
(b) Cause. The Company may terminate the Employee's employment
for Cause. For purposes of this Agreement, "Cause"shall mean:
(i) the willful and continued failure of the Employee
to perform substantially his or her duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Employee by the Employee's supervisor or the Chief Executive
Officer of the Company which specifically identifies the manner in which the
Employee's supervisor or the Chief Executive Officer believes that the Employee
has not substantially performed his duties, or
(ii) the willful engaging by the Employee in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company. For purposes of this provision, no act or failure to act, on the
part of the Employee, shall be considered "willful"unless it is done, or omitted
to be done, by the Employee in bad faith or without reasonable belief that his
or her action or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Employee in good
faith and in the best interests of the Company.
(c) Good Reason. The Employee's employment may be terminated
by the Employee for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean:
(i) the assignment to the Employee of any duties
inconsistent with the Employee's position (including status, offices, titles and
reporting requirements), authority,
77
duties or responsibilities as contemplated by Section 1 of this Agreement, or
any other action by the Company which results in a diminution in such position,
authority, duties or responsibilities;
(ii) any failure by the Company to comply with any of
the provision of Section 3 of this Agreement;
(iii) the Company's requiring the Employee to be
based at any office or location other than within twenty-five miles of
Cincinnati, Ohio or the Company's requiring the Employee to travel on Company
business to a substantially greater extent than required immediately prior to
the date of this Agreement; or
(iv) any purported termination by the Company of the
Employee's employment otherwise than as expressly permitted by this Agreement;
or
(v) the continued failure of the Company to perform
substantially its obligations under this Agreement after a written demand for
substantial performance is delivered by the Employee to the Company's Chief
Executive Officer which specifically identifies the manner in which the Employee
believes the Company has not substantially carried out its obligations.
Notwithstanding the above, "Good Reason" shall exclude an
isolated, insubstantial and inadvertent action or failure to act not taken or
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Employee.
For purposes of this Section 6(c), any good faith
determination of "Good Reason" by the Employee shall be conclusive.
Anything in this Agreement to the contrary notwithstanding, a
termination by the Employee for any reason during the six-month period
immediately following a Change in Control shall be deemed to be a termination
for Good Reason for all purposes of this Agreement.
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Employee for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 16 of
this Agreement. For purposes of this Agreement, a Notice of Termination means a
written notice which (i) indicates the specific
78
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than thirty days after the giving of such notice).
The failure by the Employee or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause, respectively, shall not preclude the Employee or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Employee's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Employee's employment is terminated by the Company for Cause, or by the
Employee for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be; (ii) if the Employee's
employment is terminated by the Company other than for Cause, the
Date of Termination shall be the date on which the Company notifies him or her
of such termination; and (iii) if the Employee's employment is terminated by
reason of death or disability, the Date of Termination shall be the date of
death of the Employee or the disability, as the case may be.
7. Obligations of the Company upon Termination. The following
provisions of this Section 7 shall apply only in the event of termination during
the Employment Period:
79
(a) Good Reason; Other Than for Cause. If the Company shall
terminate the Employee's employment during the Employment Period other than for
Cause or death or disability or the Employee shall terminate employment for Good
Reason:
(i) the Company shall pay to the Employee in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) the Employee's then annual Base
Salary through the Date of Termination to the extent not theretofore paid, (2)
the product of (x) annual bonus paid or payable under the Company's bonus plans,
including any bonus or portion thereof which has been earned but deferred (and
annualized for any fiscal year consisting of less than twelve full months), for
the most recently completed fiscal year (the "Annual Bonus") and (y) a fraction,
the numerator of which is the number of days in the current fiscal year through
the Date of Termination, and the denominator of which is 365 and (3) any
compensation previously deferred by the Employee (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in each case to the
extent not theretofore paid (the sum of the amounts described in clauses (1),
(2), and (3) shall be hereinafter referred to as the "Accrued Obligations"); and
B. an amount equal to two times the sum of the Base
Salary and the Annual Bonus paid to the Employee during the most recently
completed fiscal year.
(ii) for 2 years after the Employee's Date of Termination, or
such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to the Employee
and/or the Employee's family at least equal to those which would have been
provided to them if the Employee's employment had not been
80
terminated or, if more favorable to the Employee, as in effect generally at any
time thereafter with respect to other peer executives of the Company and its
affiliated companies and their families, provided, however, that if the Employee
becomes reemployed with another employer and is eligible to receive medical or
other welfare benefits under another employer provided plan, the medical and
other welfare benefits described herein shall be secondary to those provided
under such other plan during such applicable period of eligibility;
(iii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Employee any other amounts or
benefits required to be paid or provided or which the Employee is entitled to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits"); and
(iv) all unvested options to purchase shares of Common Stock
of the Company then held by the Employee shall vest immediately.
(b) Cause; other than for Good Reason. If the Employee's
employment shall be terminated during the Employment Period for Cause, this
Agreement shall terminate without further obligations to the Employee other than
the obligation to pay to the Employee (x) his Base Salary through the Date of
Termination and (y) the amount of any compensation previously deferred by the
Employee in each case to the extent theretofore unpaid. If the Employee
voluntarily terminates employment during the Employment Period, excluding a
termination for Good Reason, this Agreement shall terminate without further
obligations to The Employee, other than for Accrued Obligations and the timely
payment or provision of Other
81
Benefits. In such case, all Accrued Obligations shall be paid to the Employee in
a lump sum in cash within 30 days of the Date of Termination.
8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Employee (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 8) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the United States Internal Revenue Code (the "Code")
or any interest or penalties are incurred by the Employee with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all taxes and any benefits
that result from the deductibility by the Employee of such taxes (including, in
each case, any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 8(c), all
determinations required to be made under this Section 8, including whether and
when a Gross-up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such
82
determination, shall be made by Ernst & Young or such other certified public
accounting firm as may be designated by the Employee (the "Accounting Firm")
which shall provide detailed supporting calculations both to the Company and the
Employee within 15 business days of the receipt of notice from the Employee that
there has been a Payment, or such earlier time as is requested by the Company.
In the event that the Accounting Firm is serving as accountant or auditor for
the individual, entity or group effecting the Change in Control, the Employee
shall appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 8, shall be paid by the Company to the Employee within
five days of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the Company and the
Employee. As a result of the uncertainty in the application of section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 8(c) and the Employee thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment, along with any penalty and interest imposed with respect to such
Underpayment, shall be promptly paid by the Company to or for the benefit of the
Employee.
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(c) The Employee shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after the Employee is
informed in writing of such claim and shall apprize the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Employee shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Employee in writing prior to the expiration
of such period that it desires to contest such claim, the Employee shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided, however, that the Company shall
bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest
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and shall indemnify and hold the Employee harmless, on an after-tax basis, for
any Excise Tax or income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this Section 8(c),
the Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Employee to pay the
tax claimed and xxx for a refund or contest the claim in any permissible manner,
and the Employee agrees to prosecute such contest to a determination before any
administrative tribunal, in courts, as the Company shall determine; provided,
however, that if the Company directs the Employee to pay such claim and xxx for
a refund, the Company shall advance the amount of such payment to the Employee,
on an interest-free basis and shall indemnify and hold the Employee harmless, on
an after-tax basis from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance; and
further provided that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Employee with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Employee shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
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(d) If, after the receipt by the Employee of an amount
advanced by the Company pursuant to Section 8(a) or 8(c), the Employee becomes
entitled to receive any refund with respect to such claim, the Employee shall
(subject to the Company's complying with the requirements of Section 8(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Employee of an amount advance by the Company pursuant to Section
8(c), a determination is made that the Employee shall not be entitled to any
refund with respect to such claim and the Company does not notify the Employee
in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
9. Confidentiality.
The Employee will not at any time during the term of this
Agreement or thereafter, except as authorized by the Company, divulge, furnish
or make accessible to any person, firm, corporation or other entity, any
confidential information or any other information that is otherwise not publicly
available which he or she presently possesses or which he or she may obtain
during the course of his or her employment with respect to the business,
customers or affairs of the Company or any subsidiary or affiliate of the
Company or trade secrets, developments, know-how, methods or other information
or data pertaining to practices, equipment, developments or any confidential or
secret aspect of the business of the Company or any subsidiary or affiliate of
the Company, and agrees that all such matters and information shall
86
be kept strictly and absolutely confidential. The Employee, upon termination of
his or her employment, irrespective of the time, manner or cause of termination,
will surrender and deliver to the Company all lists, books, records and data of
every kind relating to or in connection with the business of the Company or any
subsidiary or affiliate of the Company, and all property belonging to the
Company and any subsidiary or affiliate of the Company.
10. Special Undertaking.
(a) The Employee hereby assigns and agrees to assign to the
Company, all inventions which he or she makes or conceives alone or jointly with
others, while employed by the Company, which inventions relate to matter within
the normal scope of the Employee's duties or field of responsibility or depend
upon his or her knowledge of trade secrets or other information of a
confidential nature belonging to the Company or which relate to tasks assigned
to the Employee by the Company. The Employee agrees to disclose promptly and
fully all such inventions to the Company and to assist the Company to obtain
patents thereon in any or all countries where protection is needed. All such
inventions shall be the property of the Company whether patented or not. If any
application for Letters Patent for any inventions, discoveries and improvements
are filed by the Employee during the period of one year after termination of the
Employee's employment with the Company, the subject matter covered therein shall
be conclusively presumed to have been conceived during employment by the
Company.
(b) The Employee further agrees that any and all notes and
records kept or made in connection with his or her employment or in relation to
any such inventions, discoveries and improvements, whether made or conceived in
the regular performance of employment or
87
otherwise, shall be and are the sole and exclusive property of the Company; and
the Employee further agrees that upon leaving the employment of the Company, he
or she will place all such notes and records in the Company's possession, and
will not take with him, without the consent of the Company's Board of Directors,
any notes and records relating to or connected with the business, work or
investigations of the Company, its affiliates and subsidiaries, or any of them,
including drawings, blueprints or other reproduction.
(c) The Employee further agrees that any secret apparatus,
secret equipment, secret formula, secret method or process of the Company,
whether or not developed by the Employee, will not be disclosed to any third
party or used by the Employee except in connection with his duties to the
Company or unless the Employee shall first secure the consent of the Company's
Board of Directors, either during his or her employment or after his or her
employment by the Company shall have terminated.
11. Enforceability. The parties agrees that nothing in this Agreement
shall in any way abrogate the right of the Company and the Employee to enforce
by injunction or otherwise the due and proper performance and observance of the
several covenants herein contained to be performed by the Employee or the
Company or to recover damages for breach thereof.
12. Successors and Assigns. If the Company sells, assigns or transfers
all or substantially all of its business and assets to any person, excluding
affiliates of the Company, or if the Company merges into or consolidates or
otherwise combines with any person which is a continuing or successor entity,
then the Company shall assign all of its right, title and interest in this
Agreement as of the date of such event to the person which is either the
acquiring or successor corporation, and such person(s) shall assume and perform
from and after the date of such assignment all of the terms, conditions and
provisions imposed by this Agreement upon the Company. In case of such
assignment by the Company and of assumption and agreement by
88
such person(s), all further rights as well as all other obligations of the
Company under this Agreement thenceforth shall cease and terminate and
thereafter the expression "the Company" wherever used herein shall be deemed to
mean such person(s).
13. Supplemental Compensation. This Agreement supplements, and is not
an amendment to or in derogation of, any other agreement between the Company and
the Employee relating to the employment or the terms and conditions thereof
except that it replaces any existing "Contingent Change in Control Employment
Agreement" between the Employee and the Company. No person, other than such
person as may be designated by the Board of Directors of the Company, shall have
any authority on behalf of the Company to agree to modify or change this
Agreement.
14. Severability. This Agreement is to be governed by and construed
under the laws of the State of Ohio. If any provision of this Agreement shall be
held invalid and unenforceable for any reason, such provision shall be deemed
deleted and the remainder of the Agreement shall be valid and enforceable
without such provision.
15. Termination of Agreement. The Company has the right to terminate
the employment of the Employee except during the Employment Period or in
contemplation of a Change in Control of the Company, and the Employee may elect
at his or her discretion to
89
terminate his or her employment, at any time prior to a Change in Control of the
Company, in either of which events this Agreement shall terminate.
16. Notice. Any notice required or permitted hereunder shall be given
in writing and delivered to the other party by U. S. registered or certified
mail; if to the Company at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, if to the
Executive at the same address, or in each case at such other address provided in
writing to the other party.
17. Headings. The Section headings used in this Agreement are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its corporate seal affixed and attested by its duly authorized
officers, and the Employee has hereunto set his hand and seal as of the date
first above written.
DURAMED PHARMACEUTICALS, INC.
By /s/ Xxxxxxx X. Xxxx
--------------------------------
(Corporate Seal) Xxxxxxx X. Xxxx, Employee
