EXHIBIT 10.1
EXECUTIVE SEVERANCE AGREEMENT
This Severance Agreement is made as of the 25/th/ day of July, 2002 by
and between Cephalon, Inc., a Delaware corporation (the "Company"), and Xxxxx
Xxxxxxx, Xx., Ph.D. ("Executive").
WHEREAS, Executive is an executive of the Company, currently serving as
its Chairman and Chief Executive Officer;
WHEREAS, the Company has determined that appropriate steps should be
taken to, and encourage the attention and dedication of, Executive to his
assigned duties without distraction; and
WHEREAS, in consideration of Executive's continued employment with the
Company and agreeing to keep Company information confidential and not to compete
with the Company in the event Executive's employment is terminated, the Company
agrees that Executive shall receive the compensation and benefits set forth in
this Agreement as a cushion against the financial and career impact on Executive
in the event Executive's employment with the Company is terminated for a reason
set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, the Company and Executive (individually a "Party" and together, the
"Parties") agree as follows:
1. Definitions.
(a) "Annual Base Salary" shall mean twelve times the greater of
(i) the highest monthly base salary paid or payable (including any base salary
which has been earned but deferred) to the Executive by the Company and its
affiliates (as defined in section 1504 of the Code without regard to subsection
(b) thereof), together with any and all salary reduction authorized amounts
under any of the Company's benefit plans or programs, or (ii) the monthly base
salary paid or payable to the Executive by the Company (including authorized
deferrals, salary reduction amounts and any car allowance) immediately prior to
the Executive's Termination Date.
(b) "Annual Bonus" shall mean 100% of Executive's target annual
bonus for the year in which Executive's Termination Date occurs, plus 100% of
any other bonuses Executive receives, or is entitled to receive, during the year
in which Executive's Termination Date occurs, including, but not limited to,
bonuses under the Company's executive special bonus program.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Bonus Multiplier" shall mean the quotient determined by
dividing the total number of months in which the Executive performed services
for the Company during the calendar year in which his Termination Date occurs
divided by 12.
(e) "Cause" shall mean Executive has engaged in any act of
unethical conduct, willful misconduct, fraud or embezzlement, any unauthorized
disclosure of confidential information or trade secrets, or any other act that
is materially and demonstrably detrimental to the Company.
(f) "Change in Control" shall be deemed to have occurred if any
of the following events occurs:
(i) the direct or indirect acquisition by any person or
related group of persons (other than the Company or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Company) of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities Exchange Act of 1934) of securities
possessing more than thirty percent (30%) of the combined voting power
of the Company's outstanding securities pursuant to a tender or
exchange offer made directly to the Company's shareholders which the
Board does not recommend such shareholders to accept;
(ii) a change in the composition of the Board over a
period of twenty-four (24) months or less such that a majority of the
Board members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (x) have
been Board members continuously since the beginning of such period, or
(y) have been elected or nominated for election as Board members during
such period by at least a majority of the Board members described in
clause (x) who were still in office at the time such election or
nomination was approved by the Board;
(iii) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the combined voting power
of the Company's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately
prior to such transaction; or
(iv) the sale, transfer or other disposition of more
than seventy-five percent (75%) of the Company's assets in a single or
related series of transactions.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Constructive Termination" means:
(i) with respect to a termination of employment prior
to a Change in Control, Executive's voluntary resignation following either of
the following events: (x) a change in his position with the Company which
materially reduces his level of responsibility or (y) a reduction in his base
salary by more than twenty-five percent (25%); or
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(ii) with respect to a termination of employment after,
or in connection with, a Change in Control, Executive's voluntary resignation
following any of the following events: (x) a change in his position with the
Company or the successor thereto which materially reduces his level of
responsibility; (y) a reduction in his level of compensation (including base
salary, significant fringe benefits or any non-discretionary and
objective-standard incentive payment or bonus award) by more than ten percent
(10%) in the aggregate; or (z) a relocation of the Executive's place of
employment by more than fifty (50) miles; provided, however, such change,
reduction or relocation is effected by the Company or the successor thereto
without Executive's consent.
(i) "Disability" shall mean Executive is, by reason of any
medically determinable physical or mental impairment expected to result in death
or to be of continuous duration of not less than one year, unable to engage in
any substantial gainful employment or service.
(j) "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, and
(ii) briefly summarizes the facts and circumstances deemed to provide a basis
for termination of the Executive's employment under the provision so indicated.
(k) "Termination Date" shall mean the last day of Executive's
employment with the Company.
(l) "Termination of Employment" shall mean the termination of
Executive's active employment relationship with the Company.
2. Termination of Employment Prior to a Change in Control.
(a) Termination Prior to a Change in Control. In the event that
Executive's employment with the Company is terminated prior to a Change in
Control on account of: (i) an involuntary termination by the Company for any
reason other than Cause, death or Disability, or (ii) the Executive voluntarily
terminates employment with the Company on account of a Constructive Termination,
Executive shall be entitled to the benefits provided in subsection (b) of this
Section 2.
(b) Compensation Upon Termination Prior to Change in Control.
Subject to the provisions of Section 5 hereof, in the event a termination
described in subsection (a) of this Section 2 occurs, the Company shall pay to
Executive within thirty (30) days after the Termination Date (or the end of the
revocation period for the Release (as defined in Section 5), if later), the
following:
(i) Executive shall receive a lump sum payment equal to
the sum of (x) three (3) times Executive's Annual Base Salary at the
rate in effect immediately before the Executive's Termination Date, (y)
three (3) times Executive's Annual Bonus, and (z) the Bonus Multiplier
times Executive's Annual Bonus.
(ii) For a period of thirty-six (36) months following his
Termination Date, Executive shall continue to receive the medical and
dental coverage in effect on his
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Termination Date (or generally comparable coverage) for himself and,
where applicable, his spouse and dependents, as the same may be changed
from time to time for employees generally, as if Executive had
continued in employment during such period; or, as an alternative, the
Company may elect to pay Executive cash in lieu of such coverage in an
amount equal to Executive's after-tax cost of continuing such coverage,
where such coverage may not be continued (or where such continuation
would adversely affect the tax status of the plan pursuant to which the
coverage is provided). The COBRA health care continuation coverage
period under section 4980B of the Code, shall run concurrently with the
foregoing thirty-six (36) month benefit period.
(iii) To cover the cost of outplacement assistance
services for Executive provided by an outplacement agency selected by
Executive in an amount not to exceed $15,000.
(iv) Executive shall receive any amounts earned, accrued
or owing but not yet paid to Executive as of his Termination Date,
payable in a lump sum, and any benefits accrued or earned in accordance
with the terms of any applicable benefit plans and programs of the
Company.
(c) Notice of Termination. Any termination on account of this
Section 2 shall be communicated by a Notice of Termination to the other Parties
hereto given in accordance with Section 18 hereof.
3. Termination of Employment on Account of a Change in Control.
(a) Termination on Account of a Change in Control. In the event
that Executive's employment with the Company is terminated after, or in
connection with, a Change in Control on account of: (i) an involuntary
termination by the Company following a Change in Control for any reason other
than Cause, death or Disability, (ii) the Executive voluntarily terminates
employment with the Company following a Change in Control on account of a
Constructive Termination, (iii) by the Company (other than for Cause, death or
Disability) prior to or in connection with an anticipated Change in Control at
the request or direction of the acquirer involved in the Change in Control, or
(iv) voluntarily by Executive for any reason (other than for death, Disability,
or under circumstances in which Executive engaged in conduct that would
constitute Cause) during the thirty (30) day period immediately following the
first anniversary of the occurrence of a Change in Control, Executive shall be
entitled to the benefits provided in subsection (b) of this Section 3. If
Executive is entitled to benefits described in subsection (b) of this Section 3
by reason of clause (a)(iii) above, Executive shall be entitled to such benefits
upon his Termination of Employment regardless of whether the Change in Control
actually occurs.
(b) Compensation in Connection With a Termination on Account of a
Change in Control. Subject to the provisions of Sections 5 and 12 hereof, in the
event of a termination described in subsection (a) of this Section 3 occurs, the
Company shall pay to Executive within thirty (30) days after the Termination
Date (or, as soon as possible thereafter in the event that the procedures set
forth in Section 12(b) hereof cannot be completed within thirty (30) days, or
the end of the revocation period for the Release (as defined in Section 5), if
later), the following:
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(i) Executive shall receive a lump sum payment equal to
the sum of (x) three (3) times Executive's Annual Base Salary at the
rate in effect immediately before the Executive's Termination Date, (y)
three (3) times Executive's Annual Bonus, and (z) the Bonus Multiplier
times Executive's Annual Bonus.
(ii) For a period of thirty-six (36) months following
his Termination Date, Executive shall continue to receive the medical
and dental coverage in effect on his Termination Date (or generally
comparable coverage) for himself and, where applicable, his spouse and
dependents, as the same may be changed from time to time for employees
generally, as if Executive had continued in employment during such
period; or, as an alternative, the Company may elect to pay Executive
cash in lieu of such coverage in an amount equal to Executive's
after-tax cost of continuing such coverage, where such coverage may not
be continued (or where such continuation would adversely affect the tax
status of the plan pursuant to which the coverage is provided). The
COBRA health care continuation coverage period under section 4980B of
the Code, shall run concurrently with the foregoing thirty-six (36)
month benefit period.
(iii) All stock options and restricted stock held by
Executive will become fully vested and/or exercisable, as the case may
be, on the Termination Date, and all stock options shall remain
exercisable after the Executive's Termination Date as set forth in the
applicable option agreements with the Company.
(iv) To cover the cost of outplacement assistance
services for Executive provided by an outplacement agency selected by
Executive in an amount not to exceed $15,000.
(v) Executive shall receive any amounts earned, accrued
or owing but not yet paid to Executive as of his Termination Date,
payable in a lump sum, and any benefits accrued or earned in accordance
with the terms of any applicable benefit plans and programs of the
Company.
(c) Notice of Termination. Any termination on account of this
Section 3 shall be communicated by a Notice of Termination to the other Parties
hereto in accordance with Section 18 hereof.
4. Termination of Employment on Account of Disability. Notwithstanding
anything in this Agreement to the contrary, if Executive's employment terminates
on account of Disability, Executive shall be entitled to receive disability
benefits under any disability program maintained by the Company that covers
Executive, and Executive shall not be considered to have terminated employment
under this Agreement and shall not receive benefits pursuant to Sections 2 and 3
hereof.
5. Release. Notwithstanding the foregoing, no such payments shall be
made unless Executive executes, and does not revoke, the Company's standard
written release (the "Release"), of any and all claims against the Company and
all related parties with respect to all matters arising out of Executive's
employment by the Company (other than any entitlements under the terms of this
Agreement or under any other plans or programs of the Company in
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which Executive participated and under which Executive has accrued or become
entitled to a benefit) or the termination thereof.
6. Other Payments. The payments due under Sections 2 and 3 hereof
shall be in addition to and not in lieu of any payments or benefits due to
Executive under any other plan, policy or program of the Company, including, but
not limited to, benefits required to be provided to him under the terms of his
split dollar life insurance agreement, if any, with the Company, except that no
cash payments shall be paid to Executive under the Company's then current
severance pay policies.
7. Enforcement.
(a) In the event that the Company shall fail or refuse to make
payment of any amounts due Executive under Sections 2, 3 and 6 hereof within the
respective time periods provided therein, the Company shall pay to Executive, in
addition to the payment of any other sums provided in this Agreement, interest,
compounded daily, on any amount remaining unpaid from the date payment is
required under Sections 2, 3 and 6, as appropriate, until paid to Executive, at
the rate from time to time announced by First Union Bank as its "prime rate"
plus 2%, each change in such rate to take effect on the effective date of the
change in such prime rate.
(b) It is the intent of the Parties that Executive not be
required to incur any expenses associated with the enforcement of his rights
under Sections 2, 3 and 6 of this Agreement by arbitration, litigation or other
legal action because the cost and expense thereof would substantially detract
from the benefits intended to be extended to Executive hereunder. Accordingly,
the Company shall pay Executive on demand the amount necessary to advance to or
reimburse Executive in full for all expenses (including all attorneys' fees and
legal expenses) incurred by Executive in enforcing any of the obligations of the
Company under this Agreement.
8. No Mitigation. Executive shall not be required to mitigate the
amount of any payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit provided
for herein be reduced by any compensation earned by other employment or
otherwise.
9. Non-Exclusivity of Rights. Except as provided in Section 6, nothing
in this Agreement shall prevent or limit Executive's continuing or future
participation in or rights under any benefit, bonus, incentive or other plan or
program provided by the Company or any of its subsidiaries or affiliates and for
which Executive may qualify.
10. No Set-Off. The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the Company may
have against Executive or others.
11. Taxes. Any payment required under this Agreement shall be subject
to all requirements of the law with regard to the withholding of taxes, filing,
making of reports and the like, and the Company shall use its best efforts to
satisfy promptly all such requirements.
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12. Certain Increases in Payment.
(a) Anything in this Agreement to the contrary notwithstanding,
in the event that it shall be determined that any payment or distribution by the
Company to or for the benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Payment"), would constitute an "excess parachute payment" within
the meaning of section 280G of the Code, Executive shall be paid an additional
amount (the "Gross-Up Payment") such that the net amount retained by Executive
after deduction of any excise tax imposed under section 4999 of the Code, and
any federal, state and local income and employment tax and excise tax imposed
upon the Gross-Up Payment shall be equal to the Payment. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to pay
federal income tax and employment taxes at the highest marginal rate of federal
income and employment taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at the highest marginal
rate of taxation in the state and locality of Executive's residence (or, if
greater, the state and locality in which Executive is required to file a
nonresident income tax return with respect to the Payment) on the Termination
Date, net of the maximum reduction in federal income taxes that may be obtained
from the deduction of such state and local taxes.
(b) All determinations to be made under this Section 12 shall be
made by the Company's independent public accountant immediately prior to the
Change in Control (the "Accounting Firm"), which firm shall provide its
determinations and any supporting calculations both to the Company and Executive
within 10 days of the Termination Date. Any such determination by the Accounting
Firm shall be binding upon the Company and Executive. Within five days after the
Accounting Firm's determination, the Company shall pay (or cause to be paid) or
distribute (or cause to be distributed) to or for the benefit of Executive such
amounts as are then due to Executive under this Agreement.
(c) Executive 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 Executive knows of such
claim and shall apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid. Executive shall not pay such claim
prior to the expiration of the thirty day period following the date on which he
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
Executive in writing prior to the expiration of such period that it desires to
contest such claim, Executive 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;
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(iii) cooperate with the Company in good faith in order to
effectively 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 Executive harmless, on an
after-tax basis, for any excise tax, income tax or employment 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 12, the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings, hearing and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct Executive to pay the tax claimed and xxx for a refund
or contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a termination before any administrative tribunal, in a
court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided further, however, that if the Company directs
Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to Executive, on an interest-free basis and shall
indemnify and hold Executive harmless, on an after-tax basis, from any excise
tax, income tax or employment tax, including interest or penalties with respect
thereto, imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and provided further that any extension of
the statute of limitations relating to payment of taxes for the taxable year of
Executive 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 Executive 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 Executive of an amount advanced by the
Company pursuant to this Section, Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to the Company's
complying with the requirements of this Section) 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 Executive of an amount
advanced by the Company pursuant to this Section, a determination is made that
Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of thirty 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.
(e) All of the fees and expenses of the Accounting Firm in performing
the determinations referred to in this Section shall be borne solely by the
Company. The Company agrees to indemnify and hold harmless the Accounting Firm
of and from any and all claims, damages and expenses resulting from or relating
to its determinations pursuant to this Section,
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except for claims, damages or expenses resulting from the gross negligence or
willful misconduct of the Accounting Firm.
13. Confidential Information. Executive shall remain subject to the terms
and conditions of his Employee Confidentiality Agreement, which shall continue
in full force and effect, except as specifically modified herein.
14. Non-Competition.
(a) During the period of Executive's employment by the Company
and, if Executive's employment with the Company terminates for any reason other
that described in Section 3(a) above, for a period of one (1) year thereafter,
except with the written consent of the Board, Executive shall not directly or
indirectly, own, manage, operate, join, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected as an
officer, director, employee, partner, principal, agent, representative,
stockholder, consultant, investor or otherwise with, or use or permit his name
to be used in connection with, any person, business or enterprise which directly
or indirectly engages in (i) the development of compounds, or (ii) the sale or
marketing of products, that compete with the Company's compounds or products
(the "Company's Business"). In further consideration for the Company's promises
herein, Executive agrees that for the period beginning with the termination of
his employment with the Company for any reason other than that described in
Section 3(a) above, and for a period of one (1) year thereafter, Executive will
not:
(i) except with the prior written consent of the Board,
directly or indirectly solicit, entice or induce any customer to become a
customer of any other person, firm or corporation with respect to the
Company's Business or to cease doing business with the Company or its
subsidiaries or affiliates, and that Executive will not approach any such
person, firm or corporation for such purpose or authorize or knowingly
approve, encourage or assist the taking of such actions by any other
person, firm or corporation; or
(ii) directly or indirectly solicit, recruit or hire any
part-time or full-time employee, representative or consultant of the
Company or its subsidiaries or affiliates to work for a third party other
than the Company or its subsidiaries or affiliates or engage in any
activity that would cause any employee, representative or consultant to
violate any agreement with the Company or its subsidiaries or affiliates.
The foregoing covenant shall not apply to any person after twelve (12)
months have elapsed after the date on which such person's employment by the
Company has terminated.
(b) The foregoing restrictions shall not be construed to prohibit
Executive's ownership of less than five percent of any class of securities of
any corporation which is engaged in any of the foregoing businesses and has a
class of securities registered pursuant to the Securities Exchange Act of 1934,
as amended, provided that such ownership represents a passive investment and
that neither Executive nor any group of persons including Executive in any way,
either directly or indirectly, manages or exercises control of any such
corporation, guarantees any of its financial obligations, otherwise takes any
part in its business, other than exercising Executive's rights as a stockholder,
or seeks to do any of the foregoing.
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15. Equitable Relief.
(a) Executive acknowledges that the restrictions contained in
Sections 13 and 14 hereof are reasonable and necessary to protect the legitimate
interests of the Company and its affiliates, that the Company would not have
entered into this Agreement in the absence of such restrictions, and that any
violation of any provision of those Sections will result in irreparable injury
to the Company. Executive represents that his experience and capabilities are
such that the restrictions contained in Section 14 hereof will not prevent
Executive from obtaining employment or otherwise earning a living at the same
general level of economic benefit as is currently the case. Executive further
represents and acknowledges that (i) he has been advised by the Company to
consult his own legal counsel in respect of this Agreement, and (ii) that he has
had full opportunity, prior to execution of this Agreement, to review thoroughly
this Agreement with his counsel.
(b) Executive agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of Sections 13 or 14 hereof, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event that any of the provisions of
Sections 13 or 14 hereof should ever be adjudicated to exceed the time,
geographic, service, or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, service, or other limitations permitted by
applicable law.
(c) Executive irrevocably and unconditionally (i) agrees that
any suit, action or other legal proceeding arising out of Section 13 or 14
hereof, including without limitation, any action commenced by the Company for
preliminary and permanent injunctive relief or other equitable relief, may be
brought in the United States District Court for the District of Delaware, or if
such court does not have jurisdiction or will not accept jurisdiction, in any
court of general jurisdiction in Delaware, (ii) consents to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding, and (iii)
waives any objection which Executive may have to the laying of venue of any such
suit, action or proceeding in any such court. Executive also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or
other papers in a manner permitted by the notice provisions of Section 18
hereof.
16. Term of Agreement. This Agreement shall continue in full force and
effect for the duration of Executive's employment with the Company; provided,
however, that after the termination of Executive's employment during the term of
this Agreement, this Agreement shall remain in effect until all of the
obligations of the Parties hereunder are satisfied or have expired.
17. Successor Company. The Company shall require any successor or
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to Executive, to
acknowledge expressly that this Agreement is binding upon and enforceable
against the Company in accordance with the terms hereof, and to become jointly
and severally obligated with the Company to perform this Agreement in the same
manner
and to the same extent that the Company would be required to perform if no such
succession or successions had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement. As used in this Agreement, the Company shall mean the Company as
herein before defined and any such successor or successors to its business
and/or assets, jointly and severally.
18. Notice. All notices and other communications required or permitted
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be delivered personally or mailed by registered or certified mail,
return receipt requested, or by overnight express courier service, as follows:
If to the Company, to:
Cephalon, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Ph.D.
With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: I. Xxx Xxxx, Esquire
If to Executive, to:
Xxxxx Xxxxxxx, Xx., Ph.D.
000 Xxxxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
or to such other names or addresses as the Company or Executive, as the case may
be, shall designate by notice to the other Parties hereto in the manner
specified in this Section; provided, however, that if no such notice is given by
the Company following a change in control, notice at the last address of the
Company or to any successor pursuant to this Section 18 shall be deemed
sufficient for the purposes hereof. Any such notice shall be deemed delivered
and effective when received in the case of personal delivery, five days after
deposit, postage prepaid, with the U.S. Postal Service in the case of registered
or certified mail, or on the next business day in the case of overnight express
courier service.
19. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the State of Delaware without giving effect to any conflict of
laws provisions.
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20. Contents of Agreement, Amendment and Assignment.
(a) This Agreement supersedes all prior agreements, sets forth
the entire understanding between the Parties hereto with respect to the subject
matter hereof and cannot be changed, modified, extended or terminated except
upon written amendment executed by Executive and executed on the Company's
behalf by a duly authorized officer. The provisions of this Agreement may
provide for payments to Executive under certain compensation or bonus plans
under circumstances where such plans would not provide for payment thereof. It
is the specific intention of the Parties that the provisions of this Agreement
shall supersede any provisions to the contrary in such plans, and such plans
shall be deemed to have been amended to correspond with this Agreement without
further action by the Company or the Board.
(b) Nothing in this Agreement shall be construed as giving
Executive any right to be retained in the employ of the Company, or as changing
or modifying the "at will" nature of Executive's employment status.
(c) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the Parties hereto, except
that the duties and responsibilities of Executive and the Company hereunder
shall not be assignable in whole or in part by the Company. If Executive should
die after his Termination Date and while any amount payable hereunder would
still be payable to Executive hereunder if Executive had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to Executive's devises, legates or other designees
or, if there is no such designee, to Executive's estate.
21. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
22. Remedies Cumulative; No Waiver. No right conferred upon the Parties by
this Agreement is intended to be exclusive of any other right or remedy, and
each and every such right or remedy shall be cumulative and shall be in addition
to any other right or remedy given hereunder or now or hereafter existing at law
or in equity. No delay or omission by a Party in exercising any right, remedy or
power hereunder or existing at law or in equity shall be construed as a waiver
thereof.
23. Miscellaneous. All section headings are for convenience only. This
Agreement may be executed in several counterparts, each of which is an original.
It shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
CEPHALON, INC.
Attest: __________________ By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, Ph.D.
Its: Chairman of the Compensation and Stock Option
Committee, and Member of the Board of Directors
/s/ Xxxxx Xxxxxxx, Xx.
__________________________ ----------------------------------------------------
Witness EXECUTIVE
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