EXHIBIT 10.3
EXECUTIVE AGREEMENT
THIS AGREEMENT dated June 21, 1999, is made by and
between ALZA Corporation, a Delaware corporation (the "Company"),
and Dr. Xxxxxx Xxxxx, Ph.D. (the "Executive").
WHEREAS, the Company considers it essential to the best
interests of its shareholders to xxxxxx the continuous employment
of key management
personnel; and
WHEREAS, the Board of Directors of the Company (the
"Board") recognizes that, as is the case with many publicly held
corporations, the possibility of a Change in Control (as defined in
the last Section hereof) exists and that such possibility, and the
uncertainty and questions which it may raise among management, may
result in the departure or distraction of management personnel to
the detriment of the Company and its shareholders; and
WHEREAS, the Board has determined that appropriate
steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management,
including the Executive, to their assigned duties without distraction
in the face of potentially disturbing circumstances arising from the
possibility of a Change in Control.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, the Company and the Executive
hereby agree as follows:
1. DEFINED TERMS. The definition of capitalized terms
used in this Agreement is provided in the last Section hereof.
2. TERM OF AGREEMENT. This Agreement shall commence on
the date hereof and shall continue in effect through December 31,
2000; provided that, commencing on January 1, 2001 and each
January 1 thereafter, the term of this Agreement shall automatically
be extended for one additional year
unless, not later than October 30 of the preceding year, the Company or the
Executive shall have given notice not to extend this Agreement or
a Change in Control shall have occurred prior to such January 1;
provided, however, that if a Change in Control shall have
occurred during the term of this Agreement, this Agreement shall
continue in effect for a period of not less than twenty-four (24)
months from the date on which such Change in Control occurred.
3. COMPANY'S COVENANTS SUMMARIZED. In order to induce
the Executive to remain in the employ of the Company and in
consideration of the Executive's covenants set forth in Section 4
hereof, the Company agrees, under the conditions described herein,
to pay the Executive the "Severance Payments" described in Section 6.1
hereof and the other payments and benefits described herein in
the event the Executive's employment with the Company is
terminated following a Change in Control and during the term of
this Agreement. No amount or benefit shall be payable under this
Agreement unless there shall have been (or, under the terms
hereof, there shall be deemed to have been) a termination of the
Executive's employment with the Company following a Change in
Control. This Agreement shall not be construed as creating an
express or implied contract of employment and, except as
otherwise agreed in writing between the Executive and the
Company, the Executive shall not have any right to be retained in
the employ of the Company.
4. THE EXECUTIVE'S COVENANTS. The Executive agrees
that, subject to the terms and conditions of this Agreement,
in the event of a Potential Change in Control during the term
of this Agreement, the Executive will remain in the employ of
the Company until the earliest of (A) a date which is twelve (12)
months after the date of such Potential Change of Control, (B)
the date of a Change in Control, (C) the date of termination by
the Executive of the Executive's employment for Good Reason
(determined by creating the Potential Change in Control as a
Change in Control in applying the definition of Good Reason),
or by reason of the Executive's death, Disability or
Retirement, or (D) the termination by the Company of the
Executive's employment for any reason.
5. COMPENSATION OTHER THAN SEVERANCE PAYMENTS.
5.1 Following a Change in Control and during the term
of this Agreement, during any period that the Executive fails to
perform the Executive's full-time duties with the Company as a result of
incapacity due to physical or mental illness, the Company shall pay the
Executive's full salary to the Executive at the rate in effect at the
commencement of any such period, together with all compensation and
benefits payable to the Executive under the terms of any compensation
or benefit plan, program or arrangement maintained by the Company
during such period, until the Executive's employment is terminated
by the Company for Disability.
5.2 If the Executive's employment shall be terminated
for any reason following a Change in Control and during the term of
this Agreement, the Company shall pay the Executive's full salary to
the Executive through the Date of Termination at the rate in effect
at the time the Notice of Termination is given, together with all
compensation and benefits payable to the Executive through the Date
of Termination under the terms of any compensation or benefit plan,
program or arrangement maintained by the Company during such period.
5.3 If the Executive's employment shall be terminated
for any reason following a Change in Control and during the term of
this Agreement, the Company shall pay the Executive's normal
post-termination compensation and benefits under the circumstances
(other than any regular severance benefits) to the Executive as
such payments become due. Such post-termination compensation and
benefits shall be determined under, and paid in accordance with,
the Company's retirement, insurance and other compensation or
benefit plans, programs and arrangements.
6. SEVERANCE PAYMENTS/CONSULTING AGREEMENT.
6.1 Subject to Section 6.2 hereof, the Company shall
pay the Executive the payments described in this Section 6.1 (the
"Severance Payments") upon the termination of the Executive's
employment following a Change in Control and during the term of
this Agreement, in addition to the payments and benefits described
in Section 5 hereof, unless such termination is (a) by the Company
for Cause, (b) by reason of death, Disability or Retirement, or
(c) by the Executive without Good Reason. The Executive's employment
shall be deemed to have been terminated following a Change in
Control by the Company without Cause or by the Executive with
Good Reason if the Executive's employment is terminated prior to
a Change in Control without Cause at the direction of a Person
who has entered into an agreement with the Company the consummation
of which will constitute a Change in Control or if the Executive
terminates his employment with Good Reason prior to a Change in
Control (determined by treating a Potential Change in Control as
a Change in Control in applying the definition of Good Reason) if
the circumstance or event which constitutes Good Reason occurs at
the direction of such Person.
(A) In lieu of any further salary and bonus payments to
the Executive for periods subsequent to the Date of Termination and
in lieu of any severance benefit otherwise payable to the Executive,
the Company shall pay to the Executive a lump sum severance payment,
in cash, equal to the product of (x) the sum of (i) the Executive's
annual base salary in effect immediately prior to the occurrence of
the event or circumstance upon which the Notice of Termination is
based or in effect immediately prior to the Change in Control, if
higher, and (ii) the amount paid to or accrued by the Executive
pursuant to the Company's regular bonus, incentive cash compensation
or income deferral arrangements (including any special one-time awards
not made as part of a regular program) in the one-year period immediately
preceding that in which the Date of Termination occurs or, if higher,
the amount paid or accrued in the one-year period immediately preceding
that in which the Change in Control occurs and (y) three (3); provided,
however, that in no event shall such amount be less than $4.5 million.
(B) Notwithstanding any provision of the Company's
bonus, incentive cash compensation or income deferral arrangements,
the Company shall pay to the Executive a lump sum amount, in cash,
equal to the sum of (i) any bonus, incentive or deferred cash
compensation that has been allocated or awarded to the Executive
for a completed year or other measuring period preceding the
Date of Termination but has not yet been paid (pursuant to Section
5.2 hereof or otherwise), and (ii) a pro rata portion of the
aggregate value of all contingent bonus, incentive or deferred cash
compensation awards to the Executive for all uncompleted periods
(based on the number of days from the commencement of the applicable
period through the Date of Termination) calculated as to each such
award by a good faith proration of performance toward applicable
objectives prior to the Date of Termination; provided, however,
that in the event a Change in Control occurs prior to December
31, 1999, the Executive shall be entitled to participate in the
Company's annual performance bonus plan applicable to the Company's
senior executive officers pursuant to which the Company shall pay
to the Executive, no later than February 28, 2000, the full amount
of the performance bonus the Executive is entitled to receive
thereunder for fiscal year 1999, which amount shall not be
less than $750,000.
(C) All outstanding Options, to the extent not then
vested on the Date of Termination shall be exercisable in accordance
with the terms and conditions of the Amended and Restated Stock Plan
and 1985 Stock Option Plan, as applicable, and Executive's option
agreements.
(D) The Company shall pay the Executive a lump sum
amount, in cash, equal to the excess of (x) the benefits under any
retirement, pension or deferred compensation arrangements that the
Executive would have accrued under the terms of such plan without
regard to any amendments made subsequent to a Change in Control
and on or prior to the Date of Termination, which amendment adversely
affects in any manner the computation of the benefits thereunder,
determined as if the Executive were fully vested thereunder, over
(y) the benefits that the Executive is otherwise entitled to receive
under such plan.
(E) For a twenty-four (24) month period after the Date
of Termination, provided that such period shall be reduced by one
month for each full month that the Date of Termination is later
than the first anniversary of the Change in Control, the Company
shall arrange to provide the Executive with life, disability,
accident and health insurance benefits substantially similar to
those which the Executive is receiving immediately prior to the
Notice of Termination (without giving effect to any reduction
in such benefits subsequent to a Change in Control which reduction
constitutes Good Reason). Benefits otherwise receivable by the
Executive pursuant to this Section 6.1(E) shall be reduced to
the extent comparable benefits are actually received by or made
available to the Executive without cost during the above-referenced
period following the Executive's termination of employment (and
any such benefits actually received by the Executive shall be
reported to the Company by the Executive).
6.2 (A) In the event the Executive becomes entitled to
the Severance Payments, if any of the payments or benefits
received or to be received by the Executive in connection with a
Change in Control or the Executive's termination of employment
(whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company, any Person whose
actions result in a Change in Control or any Person affiliated
with the Company or such Person) (all such payments and benefits,
excluding the Gross-Up Payment (as defined below), being
hereinafter referred to as the "Total Payments") will be subject
to the Excise Tax, the Excise Tax shall be allocated pro rata to
the portion of the Total Payments that are not attributable to
the acceleration of equity-based awards to the Executive (the
"Non-Equity Payments") and the portion of the Total Payments that
are attributable to the acceleration of equity-based awards to
the Executive (the "Equity Payments") and the Company shall pay to
the Executive an additional amount (the "Gross-Up Payment") such
that the net amount retained by the Executive, after deduction of
any Excise Tax allocated to the Non-Equity Payments and any
Federal, state and local income and employment taxes and Excise
Tax upon the Gross-Up Payment, shall be equal to the Non-Equity
Payments. By way of example, if the Excise Tax equals $100,000
and each of the Non-Equity Payments and the Equity Payments are
$200,000, the Gross-Up would be based on 50% of the Excise Tax.
(B) For purposes of determining whether any of the
Total Payments will be subject to the Excise Tax and the amount
of such Excise Tax, (i) all of the sum of the Total Payments shall
be treated as "parachute payments" (within the meaning of section
280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax
Counsel") reasonably acceptable to the Executive and selected by the
accounting firm which was, immediately prior to the Change in
Control, the Company's independent auditor (the "Auditor"), such
payments or benefits (in whole or in part) do not constitute
parachute payments, including by reason of section 280G(b)(4)(A)
of the Code, (ii) all "excess parachute payments" within the
meaning of section 280G(b)(l) of the Code shall be treated as
subject to the Excise Tax unless, in the opinion of Tax Counsel,
such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered (within
the meaning of section 280G(b)(4)(B) of the Code) in excess of
the Base Amount allocable to such reasonable compensation, or are
otherwise not subject to the Excise Tax, and (iii) the value of
any noncash benefits or any deferred payment or benefit shall be
determined by the Auditor in accordance with the principles of
sections 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, the Executive
shall be deemed to pay federal income tax at the highest marginal
rate of federal income 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 the Executive's residence on the date of termination
(or if there is no date of termination, then the date on which
the Gross-Up Payment is calculated for purposes of this section),
net of the maximum reduction in federal income taxes which could
be obtained from deduction of such state and local taxes.
(C) In the event that the Excise Tax is finally
determined to be less than the amount taken into account
hereunder in calculating the Gross-Up Payment, the Executive shall
repay to the Company, within five (5) business days following the
time that the amount of such reduction in the Excise Tax is finally
determined, the portion of the Gross-Up Payment attributable to
such reduction (plus that portion of the Gross-Up Payment attributable
to the Excise Tax and federal, state and local income and employment
taxes imposed on the Gross-Up Payment being repaid by the Executive,
to the extent that such repayment results in a reduction in the Excise
Tax and a dollar-for-dollar reduction in the Executive's taxable
income and wages for purposes of federal, state and local income
and employment taxes, plus interest on the amount of such
repayment at 120% of the rate provided in section 1274(b)(2)(B)
of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder in calculating the
Gross-Up Payment (including by reason of any payment the
existence or amount of which cannot be determined at the time of
the Gross-Up Payment), the Company shall make an additional Gross-
Up Payment in respect of such excess (plus any interest,
penalties or additions payable by the Executive with respect to
such excess) within five (5) business days following the time
that the amount of such excess is finally determined. The
Executive and the Company shall each reasonably cooperate with
the other in connection with any administrative or judicial
proceedings concerning the existence or amount of liability for
Excise Tax with respect to the Total Payments."
(D) The Executive and the Company shall enter into an
agreement, which shall (i) have a term of four (4) years, (ii)
contain appropriate provisions restricting competition by the
Executive from working in a Listed Drug Delivery Company during
the term, and (iii) provide the Executive with a quarterly fee
in an amount equal to $31,250, which amount shall be paid on
the first business day of each calendar quarter occurring during
the term.
6.3 The payments provided for in Section 6.1 (other
than Section 6.1(E)) shall be made not later than the fifteenth
(15th) day following the Date of Termination; provided that, if
the amounts of such payments cannot be finally determined on or
before such day, the Company shall pay to the Executive on such
day an estimate, as determined in good faith by the Company, of the
minimum amount of such payments to which the Executive is clearly
entitled and shall pay the remainder of such payments (together
with interest at the rate provided in section 1274(b)(2)(B) of
the Code) as soon as the amount thereof can be determined but in
no event later than the thirtieth (30th) day after the Date of
Termination. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been
due, such excess shall constitute a loan by the Company to the
Executive, payable on the fifth (5th) business day after demand
by the Company (together with interest at the rate provided in
section 1274(b)(2)(B) of the Code). At the time that payments are
made under this Section, the Company shall provide the Executive
with a written statement setting forth the manner in which such
payments were calculated and the basis for such calculations
including, without limitation, any opinions or other advice the
Company has received from outside counsel, auditors or
consultants (and any such opinions or advice which are in writing
shall be attached to the statement).
7. TERMINATION PROCEDURES.
7.1 NOTICE OF TERMINATION. After a Change in Control
and during the term of this Agreement, any purported termination
of the Executive's employment (other than by reason of death) shall
be communicated by written Notice of Termination from one party
hereto to the other party hereto in accordance with Section 10
hereof. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide
a basis for termination of the Executive's employment under the
provision so indicated.
7.2 DATE OF TERMINATION. "Date of Termination," with
respect to any purported termination of the Executive's employment
after a Change in Control and during the term of this Agreement,
shall mean (i) if the Executive's employment is terminated for
Disability, thirty (30) days after Notice of Termination is given
(provided that the Executive shall not have returned to the
full-time performance of the Executive's duties during such thirty
(30) day period), and (ii) if the Executive's employment is
terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a termination by the Company,
shall not be less than thirty (30) days (except in the case of a
termination for Cause) and, in the case of a termination by the
Executive, shall not be less than fifteen (15) days nor more than
sixty (60) days, respectively, from the date such Notice of
Termination is given).
8. NO MITIGATION. The Company agrees that, if the
Executive's employment by the Company is terminated during the
term of this Agreement, the Executive is not required to seek
other employment or to attempt in any way to reduce any amounts
payable to the Executive by the Company pursuant to Section 6.
Further, the amount of any payment or benefit provided for in
Section 6 (other than Section 6.1(E)) shall not be reduced by
any compensation earned by the Executive as the result of employment
by another employer, by retirement benefits, by offset against
any amount claimed to be owed by the Executive to the Company,
or otherwise.
9. SUCCESSORS; BINDING AGREEMENT.
9.1 In addition to any obligations imposed by law upon
any successor to the Company, the Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets
of the Company to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure
of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the
Company in the same amount and on the same terms as the Executive
would be entitled to hereunder if the Executive were to terminate
the Executive's employment for Good Reason after a Change in Control,
except that, for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date
of Termination.
9.2 This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees
and legatees. If the Executive shall die while any amount would still
be payable to the Executive hereunder (other than amounts which,
by their terms, terminate upon the death of the Executive) if the
Executive had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this
Agreement to the executors, personal representatives or administrators
of the Executive's estate.
10. NOTICES. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the respective addresses set forth below,
or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that notice
of change of address shall be effective only upon actual receipt:
To the Company:
ALZA Corporation
950 Page Mill Road
P.O. Box 10950
Palo Alto, CA 94303
Attention: General Counsel
To the Executive:
Dr. Xxxxxx Xxxxx
Squire House
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
11. MISCELLANEOUS. No provision of this Agreement may
be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing and signed by the Executive and
on behalf of the Company by a duly authorized officer. No waiver
by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision
of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of
California. All references to sections of the Exchange Act or the
Code shall be deemed also to refer to any successor provisions to
such sections. Any payments provided for hereunder shall be paid
net of any applicable withholding required under federal, state
or local law and any additional withholding to which the
Executive has agreed. The obligations of the Company and the
Executive under Sections 5, 6 and 7 shall survive the expiration
of the term of this Agreement.
12. VALIDITY. The invalidity or unenforceability or any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
13. COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same
instrument.
14. SETTLEMENT OF DISPUTES; ARBITRATION. All claims by
the Executive for benefits under this Agreement shall be directed
to and determined by the Board or a designated committee of the
Board and shall be in writing. Any denial by the Board of a claim
for benefits under this Agreement shall be delivered to the
Executive in writing and shall set forth the specific reasons for
the denial and the specific provisions of this Agreement relied
upon. Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by
arbitration in Palo Alto, California in accordance with the rules
of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Executive shall be
entitled to be paid until the Date of Termination during the
pendency of any dispute or controversy arising under or in
connection with this Agreement.
15. DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings indicated below:
(A) "Base Amount" shall have the meaning defined in
section 280G(b)(3) of the Code.
(B) "Beneficial Owner" shall have the meaning defined
in Rule 13d-3 under the Exchange Act.
(C) "Board" shall mean the Board of Directors of the
Company.
(D) "Cause" for termination by the Company of the
Executive's employment, after any Change in Control, shall mean
(i) the willful and continued failure by the Executive to substantially
perform the Executive's duties with the Company (other than any such
failure resulting from the Executive's incapacity due to physical
or mental illness or any such actual or anticipated failure after
the issuance of a Notice of Termination for Good Reason by the
Executive pursuant to Section 7.1) after a written demand for
substantial performance is delivered to the Executive by the
Company, which demand specifically identifies the manner in which
the Company believes that the Executive has not substantially
performed the Executive's duties, (ii) the willful engaging by
the Executive in conduct which is demonstrably and materially
injurious to the Company or its subsidiaries, monetarily or
otherwise, (iii) the conviction of the Executive of a felony
involving moral turpitude or (iv) the Executive becoming eligible
for Retirement.
(E) A "Change in Control" shall be deemed to have
occurred if the conditions set forth in any one of the following
paragraphs shall have been satisfied:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power
of the Company's then outstanding securities; or
(ii) during any period of two consecutive years
(not including any period prior to the execution of this
Agreement), a majority of the Board ceases to be comprised
of (a) individuals who at the beginning of such period
constitute the Board and (b) any new directors (other
than a director designated by a Person who has entered
into an agreement with the Company to effect a transaction
described in clause (i), (iii) or (iv) of this paragraph)
whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-
thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose
election or nomination for election was previously so
approved; or
(iii) the shareholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than (a) a merger or consolidation which
would result in the voting securities of the Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity),
in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit
plan of the Company, more than 50% of the combined voting
power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger
or consolidation, or (b) a merger or consolidation effected
to implement a recapitalization of the Company (or similar
transaction) in which no Person acquires more than 50% of
the combined voting power of the Company's then outstanding
securities; or
(iv) the shareholders of the Company approve a
plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or
substantially all the Company's assets.
Notwithstanding the foregoing, a Change in Control shall not
include any event, circumstance or transaction occurring during
the six-month period following a Potential Change in Control
which results from the action of any entity or group which
includes, is affiliated with or is wholly or partly controlled by
one or more executive officers of the Company (a "Management
Group"); provided that, such action shall not be taken into
account for this purpose if it occurs within a six-month period
following a Potential Change in Control resulting from the action
of any Person which is not a Management Group.
(F) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
(G) "Company" shall mean ALZA Corporation and any
successor to its business and/or assets (except in determining,
under Section 15(E) hereof, whether or not any Change in Control
of the Company has occurred in connection with such succession).
(H) "Company Shares" shall mean shares of common stock
of the Company or any equity securities into which such shares
have been converted.
(I) "Date of Termination" shall have the meaning stated
in Section 7.2 hereof.
(J) "Disability" shall be deemed the reason for the
termination by the Company of the Executive's employment, if, as a
result of the Executive's incapacity due to physical or mental
illness, the Executive shall have been absent from the full-time
performance of the Executive's duties with the Company for a period
of six (6) consecutive months, or for any period of eight (8) months
in any twelve-month period, the Company shall have given the Executive
a Notice of Termination for Disability, and, within thirty (30) days
after such Notice of Termination is given, the Executive shall not have
returned to the full-time performance of the Executive's duties.
(K) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
(L) "Excise Tax" shall mean any excise tax imposed
under section 4999 of the Code.
(M) "Executive" shall mean the individual named in the
first paragraph of this Agreement.
(N) "Good Reason" for termination by the Executive of
the Executive's employment shall mean the occurrence (without the
Executive's express written consent) of any one of the following
acts by the Company, or failures by the Company to act, unless,
in the case of any act or failure to act described in paragraph
(i), (v) or (vi) below, such act or failure to act is corrected
prior to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(i) the assignment to the Executive of any duties
materially inconsistent with the Executive's status as an
executive officer of the Company or a substantial adverse
alteration in the nature or status of the Executive's
responsibilities from those in effect immediately prior
to the Change in Control; provided, however, that the
Executive shall be deemed to have Good Reason to terminate
employment if, after the Change in Control (and without
otherwise terminating the Executive's employment) the
Executive ceases to be the chief executive officer of a
company whose securities are publicly traded on a national
securities exchange or quotation system, but any termination
for Good Reason that is solely pursuant to this proviso
shall not be effective until the expiration of 180 days
after the Change in Control;
(ii) a reduction by the Company in the Executive's
annual base salary as in effect on the date hereof or as the
same may be increased from time to time;
(iii) the relocation of the Executive's principal
place of employment by the Company to a location outside the
Palo Alto/San Xxxx metropolitan area (or, if different, the
metropolitan area in which the Executive's employment was
located immediately prior to the Change in Control) or the
Company's requiring the Executive to travel on the Company's
business to an extent substantially inconsistent with the
Executive's business travel obligations as of the date of
the Change in Control;
(iv) the failure by the Company, without the
Executive's consent, to pay to the Executive any portion of
the Executive's current compensation, or to pay to the
Executive any portion of an installment of deferred
compensation under any deferred compensation program of
the Company, within seven (7) days of the date such
compensation is due;
(v) the failure by the Company to continue in
effect any compensation plan in which the Executive
participates immediately prior to the Change in Control
which is material to the Executive's total compensation,
including but not limited to the Company's stock option,
incentive compensation, bonus and other plans or any
substitute plans adopted prior to the Change in Control,
unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect
to such plan, or the failure by the Company to continue
the Executive's participation therein (or in such substitute
or alternative plan) on a basis that is not less favorable
than that which existed at the time of the Change in Control;
provided that, in each case under this clause (v), such
failure causes a material adverse change in the annual
compensation of the Executive, taken as a whole and
including amounts or awards that are reasonably expected
to be made, compared to the compensation package that
existed at the time of the Change in Control; and provided,
further, that any such determination which is based on
participation in a stock option plan shall take into account,
among other factors, the overall practices and policies of a
parent company with respect to its option plans; or
(vi) the failure by the Company to continue to
provide the Executive with benefits substantially similar
to those enjoyed by The Executive under any of the Company's
pension, life insurance, medical, health and accident, or
disability plans in which the Executive was participating
at the time of the Change in Control, the taking of any
action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the
Executive of any material fringe benefit enjoyed by the
Executive at the time of the Change in Control, or the failure
by the Company to provide the Executive with the number of paid
vacation days to which the Executive is entitled on the basis
of years of service with the Company in accordance with the
Company's normal vacation policy in effect at the time of the
Change in Control unless any such failure is the result of a
change in policy applicable generally to senior employees
of the Company and of any corporation of which the Company is
a subsidiary.
The Executive's right to terminate the Executive's
employment for Good Reason shall not be affected by the
Executive's incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute consent to,
or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
(O) "ISOs" shall mean options qualifying as incentive
stock options under section 422 of the Code.
(P) "Listed Drug Delivery Company" shall mean any one
of the following companies, or a business entity controlled by any one
of such companies: Advanced Polymer Systems, Biovail Corp. International,
Cygnus Therapeutic Systems, Elan Corporation Plc., Ethical Holdings
Plc., Gensia Corp., Genta Inc., KV Pharmaceutical Co., Noven
Pharmaceuticals Inc., X.X. Xxxxxxx Corp. or TheraTech Inc.
(Q) "Notice of Termination" shall have the meaning
stated in Section 7.1 hereof.
(R) "Options" shall mean options for Company Shares
granted to the Executive under the Company's Amended and Restated
Stock Plan and 1985 Stock Option Plan.
(S) "Pension Plan" shall mean the ALZA Retirement Plan.
(T) "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof; however, a Person shall not include (i) the
Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company or any of its subsidiaries, (iii) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(U) "Potential Change in Control" shall be deemed to
have occurred if the conditions set forth in any one of the
following paragraphs shall have been satisfied:
(i) the Company enters into an agreement, the
consummation of which would result in the occurrence of a
Change in Control;
(ii) the Company or any Person publicly announces
an intention to take actions which, if consummated,
would constitute a Change in Control;
(iii) any Person who is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of
the Company's then outstanding securities, increases such
Person's beneficial ownership of such securities to 30% or
more of such combined voting power; or
(iv) the Board adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in
Control has occurred.
(V) "Retirement" shall be deemed the reason for the
termination by the Company or the Executive of the Executive's employment
ifsuch employment is terminated in accordance with the Company's
retirement policy, not including retirement before the age of 65
(or such later age as may be established in such policy),
generally applicable to its salaried employees, as in effect
immediately prior to the Change in Control, or in accordance with
any retirement arrangement established with the Executive's
written consent with respect to the Executive.
(W) "Severance Payments" shall mean those payments
described in Section 6.1 hereof.
(X) "Shares" shall mean shares of the common stock,
$.01 par value, of the Company.
(Y) "Total Payments" shall mean those payments
described in Section 6.2 hereof.
ALZA Corporation
By: _______________________________
Name:
Title:
__________________________________
Dr. Xxxxxx Xxxxx, Ph.D.
