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Exhibit 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of the ___ day of _______,
____, by and between Ribapharm Inc. (the "Company") and Xxxxxxx X. Xxxxx, an
individual (the "Executive").
WHEREAS, the Company desires to retain the services of the
Executive as Chief Financial Officer and Chief Operating Officer of the Company
on the terms set forth herein;
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that the threat of an unsolicited takeover of the Company may occur
which can result in significant distractions of its management personnel because
of the uncertainties inherent in such a situation;
WHEREAS, the Board of the Company has determined that it is
essential and in the best interest of the Company and its stockholders to retain
the services of its key management personnel in the event of a threat of a
change in control of the Company and to ensure their continued dedication and
efforts in such event without undue concern for their personal financial and
employment security; and
WHEREAS, in order to induce the Executive to remain in the
employ of the Company, particularly in the event of a threat of a change in
control of the Company, the Company desires by this writing to set forth the
continued employment relationship of the Executive with the Company, and the
Executive is willing to continue such employment relationship on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the respective agreements
of the parties contained herein, it is agreed as follows:
1. Term. The initial term of employment under this Agreement shall be
for the period commencing on the date hereof, and ending ________ __, ____;
provided, however, that the term of this Agreement shall be automatically
extended for one (1) year on ________ __, ____, and on each _________ __
thereafter unless either the Company or the Executive shall have given written
notice to the other at least ninety (90) days prior thereto that the term of
this Agreement shall not be so extended; and provided, further, that
notwithstanding any such notice by the Company given after a Change in Control
not to extend, the term of this Agreement shall not expire prior to the
expiration of the third anniversary of a Change in Control (as hereinafter
defined). Notwithstanding the foregoing, in no event shall the term of this
Agreement extend beyond the first day of the month following the month in which
the Executive attains age 65.
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2. Employment.
(a) The Executive shall be employed as the
Chief Financial Officer and Chief Operating Officer of the
Company or such other senior executive capacity as may be
mutually agreed to in writing by the parties. The Executive
shall perform the duties, undertake the responsibilities and
exercise the authority customarily performed, undertaken and
exercised by persons situated in a similar executive capacity.
He shall also promote, by entertainment or otherwise, the
business of the Company.
(b) Excluding periods of vacation and sick
leave to which the Executive is entitled, the Executive agrees
to devote reasonable attention and time during usual business
hours to the business and affairs of the Company to the extent
necessary to discharge the responsibilities assigned to the
Executive hereunder. The Executive may (i) serve on corporate,
civil or charitable boards of committees, (ii) manage personal
investments and (iii) deliver lectures and teach at education
institutions, so long as such activities do not significantly
interfere with the performance of the Executive's
responsibilities hereunder.
3. Base Salary. The Company agrees to pay or cause to be paid to the
Executive during the term of this Agreement a base salary at the rate of
$___________ per annum or such larger amount as the Board may from time to time
determine (hereinafter referred to as the "Base Salary"). Such Base Salary shall
be payable in accordance with the Company's customary practices applicable to
its executives. Such rate of salary, or increased rate of salary, if any, as the
case may be, shall be reviewed at least annually by the respective Board and may
be further increased (but not decreased) in such amounts as the respective Board
in its discretion may decide.
4. Employee Benefits. The Executive shall be entitled to participate in
all employee benefit plans, practices and programs maintained by the Company and
made available to employees generally including, without limitation all pension,
retirement, profit sharing, savings, medical, hospitalization, disability,
dental, life or travel accident insurance benefit plans. The Executive's
participation in such plans, practices and programs shall be on the same basis
and terms as are applicable to employees of the Company generally.
5. Executive Benefits. The Executive shall be entitled to participate
in all executive benefit or incentive compensation plans now maintained or
hereafter established by the Company for the purpose of providing compensation
and/or benefits to executives of the Company including, but not limited to, the
Company's 401(k) and Deferred Compensation Plans and any supplemental
retirement, salary continuation, stock option, deferred compensation,
supplemental medical or life insurance or other bonus or incentive compensation
plans. Unless otherwise provided herein, the Executive's participation in such
plans shall be on the same basis and terms as other similarly situated
executives of the Company, but in no event on a basis less favorable in terms of
benefit levels or reward opportunities applicable to the Executive as in effect
on the date
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hereof. No additional compensation provided under any of such plans
shall be deemed to modify or otherwise affect the terms of this
Agreement or any of the Executive's entitlements hereunder.
6. Other Benefits.
(a) Fringe Benefits and Perquisites. The
Executive shall be entitled to all fringe benefits and
perquisites (e.g. Company cars, club dues, physical
examinations, financial planning and tax preparation services)
generally made available by the Company to its executives.
(b) Expenses. The Executive shall be
entitled to receive prompt reimbursement of all expenses
reasonably incurred by him in connection with the performance
of his duties hereunder or for promoting, pursuing or
otherwise furthering the business or interests of the Company.
(c) Office and Facilities. The Executive
shall be provided with an appropriate office in Costa Mesa,
California, or such other place as may be mutually agreed upon
and with such secretarial and other support facilities as are
commensurate with the Executive's status with the Company and
adequate for the performance of his duties hereunder.
7. Vacation and Sick Leave. At such reasonable times as the Board shall
in its discretion permit, the Executive shall be entitled, without loss of pay,
to absent himself voluntarily from the performance of his employment under this
Agreement, provided that:
(a) The Executive shall be entitled to
annual vacation in accordance with the policies as
periodically established by the Board for similarly situated
executives of the Company, which shall in no event be less
than four weeks per year.
(b) The Board shall be entitled to grant to
the Executive a leave or leaves of absence with or without pay
at such time or times and upon such terms and conditions as
the Board in its discretion may determine.
(c) The Executive shall be entitled to sick
leave (without loss of pay) in accordance with the Company's
policies as in effect from time to time.
8. Termination. (a) The Executive's employment hereunder may be
terminated under the following circumstances.
(1) Disability. The Company may terminate
the Executive's employment after having established the
Executive's Disability. For purposes of this Agreement,
"Disability" means a physical or mental infirmity which
impairs the Executive's ability to substantially perform his
duties under this Agreement which continues for a period of at
least one hundred eighty (180) consecutive
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days. The Executive shall be entitled to the compensation and
benefits provided for under this Agreement for any period
during the term of this Agreement and prior to the
establishment of the Executive's Disability during which the
Executive's ability to substantially perform his duties under
this Agreement is impaired due to a physical or mental
infirmity. Notwithstanding anything contained in this
Agreement to the contrary, until the Termination Date
specified in a Notice of Termination (as each term is
hereinafter defined) relating to the Executive's Disability,
the Executive shall be entitled to return to his position with
the Company as set forth in this Agreement in which event no
Disability of the Executive will be deemed to have occurred.
(2) Cause. The Company may terminate the
Executive's employment for "Cause". A termination for Cause is
a termination evidenced by a resolution adopted in good faith
by two-thirds (2/3) of the Board that the Executive (i)
willfully and continually failed to substantially perform his
duties with the Company (other than a failure resulting from
the Executive's incapacity due to physical or mental illness)
which failure continued for a period of at least thirty (30)
days after a written notice of demand for substantial
performance has been delivered to the Executive specifying the
manner in which the Executive has failed to substantially
perform, (ii) willfully engaged in conduct which is
demonstrably and materially injurious to the Company,
monetarily or otherwise, or (iii) has been indicted or
convicted of an act which is defined as a felony under federal
or state law or otherwise willfully engaged in other acts of
misfeasance in connection with the performance of his duties;
provided, however, that no termination of the Executive's
employment shall be for Cause as set forth in clause (ii) or
(iii) above until (x) there shall have been delivered to the
Executive a copy of a written notice setting forth that the
Executive was guilty of the conduct set forth in clause (ii)
and specifying the particulars thereof in detail, and (y) the
Executive shall have been provided an opportunity to be heard
by the Board (with the assistance of the Executive's counsel
if the Executive so desires). No act, nor failure to act, on
the Executive's part, shall be considered "willful" unless he
has acted or failed to act, with an absence of good faith and
without a reasonable belief that his action or failure to act
was in the best interest of the Company. Notwithstanding
anything contained in this Agreement to the contrary, no
failure to perform by the Executive after Notice of
Termination is given by the Executive shall constitute Cause
for purposes of this Agreement.
(3) Good Reason. The Executive may terminate
his employment for "Good Reason". For purposes of this
Agreement, Good Reason shall mean the occurrence after a
Change in Control (as hereinafter defined in this Section
8(b)) of any of the Events or conditions described in
Subsections (i) through (viii) hereof:
(i) a change in the Executive's status,
title, position or responsibilities (including
reporting responsibilities) which, in the
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Executive's reasonable judgment, does not represent a
promotion from his status, title, position or
responsibilities as in effect immediately prior to
the Change in Control; the assignment to the
Executive of any duties or responsibilities which, in
the Executive's reasonable judgment, are inconsistent
with such status, title, position or responsibilities
immediately prior to the Change in Control; or any
removal of the Executive from or failure to reappoint
or reelect him to any of such positions, except in
connection with the termination of his employment for
Disability, Cause, as a result of his death or by the
Executive other than for Good Reason;
(ii) a reduction in the Executive's Base
Salary or a failure by the Company to increase the
Executive's Base Salary within any twelve (12) month
period by the average percentage increase during such
period of the base salaries of similarly situated
executives;
(iii) the Company's requiring the Executive
to be based at any place outside a 30-mile radius
from Costa Mesa, California, except for reasonably
required travel on the Company's business which is
not materially greater than such travel requirements
prior to the Change in Control;
(iv) the failure by the Company to (A)
continue in effect any material compensation or
benefit plan in which the Executive was participating
at the time of the Change in Control, including, but
not limited to, the Company's Deferred Compensation
Plan, 401(k) Plan, and any other comparable plans
established or maintained by the Company in
replacement thereof, or (B) provide the Executive
with compensation and benefits at least equal (in
terms of benefit levels and/or reward opportunities)
to those provided for under each other employee
benefit plan, program and practice as in effect
immediately prior to the Change in Control (or as in
effect following the Change in Control, if greater);
(v) the insolvency or the filing (by any
party, including the Company) of a petition for
bankruptcy of the Company;
(vi) any material breach by the Company of
any material provision of this Agreement;
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(vii) any purported termination of the
Executive's employment for Cause by the Company which
does not comply with the terms of Section 8 of this
Agreement; and
(viii) the failure of the Company to obtain
an agreement, satisfactory to the Executive, from any
successor or assign of the Company to assume and
agree to perform this Agreement, as contemplated in
Section 11 hereof.
Any event or condition described in this
Section 8(a)(3)(i) through (viii) which occurs prior to a
Change in Control but which (x) was at the request of a third
party who has taken steps reasonably calculated to effect a
Change in Control, or (y) otherwise arose in connection with a
Change in Control, shall constitute Good Reason for purposes
of this Agreement notwithstanding that it occurred prior to a
Change in Control. The Executive's right to terminate his
employment pursuant to this Section 8(a) shall not be affected
by his incapacity due to physical or mental illness. "Good
Reason" shall not include acts not taken in bad faith which
are cured by the Company in all respects not later than thirty
(30) days from the date of receipt by the Company of a Notice
of Termination from the Executive.
(b) Voluntary Termination. The Executive may voluntarily
terminate his employment hereunder at any time. If the Executive
voluntarily terminates his employment for any reason or without reason
during the 60-day period which commences on the date which is six (6)
months following the date of a Change in Control, it shall be referred
to as a "Limited Period Termination."
(c) For purposes of this Agreement, a "Change in Control"
shall mean any of the following:
(1) an acquisition (other than directly from the
Company) of any voting securities of the Company (the "Voting Securities") by
any "Person" (as the term person is used for purposes of Section 13(d) or 14(d)
of the Exchange Act) immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of more than fifty percent (50%) of the then outstanding shares of common stock
(the "Shares") or the combined voting power of the Company's then outstanding
Voting Securities or more than fifty percent (50%) of the then outstanding
Shares or the combined voting power of the Voting Securities of any entity (a
"Parent") that owns more than fifty percent (50%) of the Company's then
outstanding Shares or the combined voting power of the Company's then
outstanding Voting Securities; provided, however, in determining whether a
Change in Control has occurred pursuant to this Section 8(e)(1), Shares or
Voting Securities which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (i)
an employee benefit plan (or a trust forming a part thereof) maintained by (A)
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the Company or a Parent or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or equity interest
is owned, directly or indirectly, by the Company (for purposes of this
definition, a "Related Entity"), (ii) the Company, ICN Pharmaceuticals, Inc.
("ICN") or any Related Entity, or (iii) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(2) the consummation of:
(i) a merger, consolidation or reorganization
with or into the Company or a Parent (a "Merger"), unless such Merger is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean a Merger
where:
(A) the stockholders of the Company or a
Parent, as the case may be, immediately before such Merger own directly or
indirectly immediately following such Merger, at least fifty percent (50%) of
the combined voting power of the outstanding voting securities of (x) the
corporation resulting from such Merger (the "Surviving Corporation"), if fifty
percent (50%) or more of the combined voting power of the then outstanding
voting securities of the Surviving Corporation is not beneficially owned,
directly or indirectly by another Person (a "Controlling Corporation"), or (y)
if there are one or more Controlling Corporations, the ultimate Controlling
Corporation; and
(B) the individuals who, as of _________,
____, are members of the Board of Directors of the Company or a Parent, as the
case may be, (the "Incumbent Boards"), immediately prior to the execution of the
agreement providing for such Merger, constitute at least a majority of the
members of the board of directors of (x) the Surviving Corporation, if there is
no Controlling Corporation, or (y) if there are one or more Controlling
Corporations, the ultimate Controlling Corporation;
(ii) a complete liquidation or dissolution of the
Company or a Parent; or
(iii) the sale or other disposition of all or
substantially all of the assets of the Company or a Parent to any Person (other
than a transfer to a Related Entity, or in the case of the Company, to ICN under
conditions that would constitute a Non-Control Transaction, with the disposition
of assets being regarded as a Merger for this purpose, or the distribution to
the stockholders of the Company or ICN of the stock of a Related Entity
(including, without limitation, the Company) or any other assets); or
(3) the individuals who are members of the Incumbent
Board cease for any reason to constitute at least two-thirds (2/3) of the
members of the Board of Directors of the Company or a Parent, as the case may
be, [or, following a Merger which results in a Controlling Corporation, the
board of directors of the ultimate Controlling Corporation]; provided, however,
that if the election, or nomination for election by the Company's stockholders
in the case of a Company Merger or ICN's stockholders in the case of an ICN
Merger, of any new director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this Agreement, be
considered as a member of the Incumbent Board; provided
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further, however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest.
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then outstanding
Shares or Voting Securities as a result of the acquisition of Shares or Voting
Securities by the Company which, by reducing the number of Shares or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of the
acquisition of Shares or Voting Securities by the Company, and after such share
acquisition by the Company, the Subject Person becomes the Beneficial Owner of
any additional Shares or Voting Securities which increases the percentage of the
then outstanding Shares or Voting Securities Beneficially Owned by the Subject
Person, then a Change in Control shall occur.
(d) Notice of Termination. Any purported termination by the
Company or by the Executive shall be communicated by written Notice of
Termination to the other. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which indicates the specific
termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision
so indicated. For purposes of this Agreement, no such purported
termination of employment shall be effective without such Notice of
Termination.
(e) Termination Date, Etc. "Termination Date" shall mean in
the case of the Executive's death, his date of death, or in all other
cases, the date specified in the Notice of Termination subject to the
following:
(1) if the Executive's employment is
terminated by the Company for Cause or due to Disability, the
date specified in the Notice of Termination shall be at least
thirty (30) days from the date the Notice of Termination is
given to the Executive, provided that in the case of
Disability the Executive shall not have returned to the
full-time performance of his duties during such period of at
least thirty (30) days; and
(2) if the Executive's employment is
terminated for Good Reason or is a Limited Period Termination,
the date specified in the Notice of Termination shall not be
more than sixty (60) days, and shall not be less than thirty
(30) days, from the date the Notice of Termination is given to
the Company.
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9. Compensation Upon Termination. Upon termination of the Executive's
employment during the term of this Agreement (including any extensions thereof),
the Executive shall be entitled to the following benefits:
(a) If the Executive's employment is terminated by the Company
for Cause or Disability or by the Executive (other than for Good Reason
or a Limited Period Termination), or by reason of the Executive's
death, the Company shall pay the Executive all amounts earned or
accrued hereunder through the Termination Date but not paid as of the
Termination Date, including (i) Base Salary, (ii) reimbursement for any
and all monies advanced or expenses incurred in connection with the
Executive's employment for reasonable and necessary expenses incurred
by the Executive on behalf of the Company for the period ending on the
Termination Date, (iii) vacation pay, (iv) any bonuses or incentive
compensation and (v) any previous compensation which the Executive has
previously deferred (including any interest earned or credited thereon)
(collectively, "Accrued Compensation"). In addition to the foregoing,
if the Executive's employment is terminated by the Company for
Disability or by reason of the Executive's death, the Company shall pay
to the Executive or his beneficiaries an amount equal to the annual
bonus or incentive award that the Executive would have been entitled to
receive in respect of the fiscal year in which the Executive's
Termination Date occurs had he continued in employment until the end of
such fiscal year, calculated as if all performance targets and goals
(if applicable) had been fully met by the Company and by the Executive,
as applicable, for such year, multiplied by a fraction the numerator of
which is the number of days in such fiscal year through the Termination
Date and the denominator of which is 365 (a "Pro Rata Bonus").
Executive's entitlement to any other compensation or benefits shall be
determined in accordance with the Company's employee benefit plans and
other applicable programs and practices then in effect.
(b) If the Executive's employment by the Company shall be
terminated (1) by the Company other than for Cause, death or
Disability, (2) by the Executive for Good Reason, or (3) by the
Executive as a Limited Period Termination, then the Executive shall be
entitled to the benefits provided below:
(i) the Company shall pay the Executive all Accrued
Compensation and a Pro Rata Bonus;
(ii) the Company shall pay the Executive as severance
pay and in lieu of any further salary for periods subsequent
to the Termination Date, in a single payment an amount in cash
equal to three (3) times the sum of (A) the Executive's Base
Salary at the highest rate in effect at any time within the
ninety (90) day period ending on the date the Notice of
Termination is given (or if the Executive's employment is
terminated after a Change in Control, the Executive's Base
Salary immediately prior to the Change in Control, if greater)
and (B) the "Bonus Amount" (as defined below). Notwithstanding
the foregoing, the amount to be paid
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under this Subsection (ii) shall be multiplied by a fraction
(which in no event shall be greater than one (1)), the
numerator of which shall be the number of months (for this
purpose any partial month shall be considered as a whole
month) remaining until the Executive's 65th birthday and the
denominator of which shall be thirty-six (36). The term "Bonus
Amount" shall mean (x) the greatest amount of any annual cash
bonus or annual incentive compensation received by the
Executive during the three fiscal years immediately preceding
the Termination Date or (y) if no such bonus was received by
the Executive during any of such three years, then an amount
equal to the Executive's maximum annual bonus which could be
awarded for the fiscal year in which the Termination Date
occurs had he continued in employment until the end of such
fiscal year, assuming all performance targets and goals (if
applicable) had been fully met by the Company and by the
Executive, as applicable, for such year;
(iii) for a number of months equal to the lesser of
(A) thirty-six (36) or (B) the number of months remaining
until the Executive's 65th birthday, the Company shall at its
expense continue on behalf of the Executive and his dependents
and beneficiaries the life insurance, disability, medical,
dental and hospitalization benefits which were being provided
to the Executive at the time Notice of Termination is given
(or, if the Executive is terminated following a Change in
Control, the benefits provided to the Executive at the time of
the Change in Control, if greater). The benefits provided in
this Section 9(b)(iii) shall be no less favorable to the
Executive, in terms of amounts and deductibles and costs to
him, than the coverage provided the Executive under the plans
providing such benefits at the time Notice of Termination is
given (or, if the Executive is terminated following a Change
in Control, at the time of the Change in Control if more
favorable to the Executive). The Company's obligation
hereunder with respect to the foregoing benefits shall be
limited to the extent that the Executive obtains any such
benefits pursuant to a subsequent employer's benefit plans, in
which case the Company may reduce the coverage of any benefits
it is required to provide the Executive hereunder as long as
the aggregate coverage of the combined benefit plans is no
less favorable to the Executive, in terms of amounts and
deductibles and costs to him, than the coverage required to be
provided hereunder. This Subsection (iii) shall not be
interpreted so as to limit any benefits to which the Executive
or his dependents may be entitled under any of the Company's
employee benefit plans, programs or practices following the
Executive's termination of
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employment, including without limitation, retiree medical and
life insurance benefits;
(iv) the Company shall pay in a single payment an
amount in cash equal to the excess of (A) the actuarial
equivalent of the aggregate retirement benefit the Executive
would have been entitled to receive under the Company's
supplemental and excess retirement plans had (x) the Executive
remained employed by the Company for an additional three (3)
complete years of credited service (or until his 65th
birthday, if earlier), (y) his annual compensation during such
period been equal to his Base Salary (at the rate used for
purposes of Subsection (ii)) and the Bonus Amount, and (z) he
been fully (100%) vested in his benefit under each such
retirement plan, over (B) the actuarial equivalent of the
aggregate retirement benefit the Executive is actually
entitled to receive under such retirement plans. For purposes
of this Subsection (iv), "actuarial equivalent" shall be
determined in accordance with the actuarial assumptions used
for the calculation of benefits under any retirement plan as
applied prior to the Termination Date in accordance with such
plan's past practices (but shall in any event take into
account the value of any subsidized early retirement benefit);
and
(v) all restrictions on any outstanding
awards granted by the Company or any other subsidiaries of the
Company (including restricted stock awards) granted to the
Executive shall lapse and such awards shall become fully
(100%) vested immediately, and all stock options and stock
appreciation rights granted to the Executive shall become
fully (100%) vested and shall become immediately exercisable.
(c) The amounts provided for in Sections 9(a) and 9(b)(i),
(ii) and (iv) shall be paid within five (5) days after the Executive's
Termination Date.
(d) The Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other
employment or otherwise and no such payment shall be offset or reduced
by the amount of any compensation or benefits provided to the Executive
in any subsequent employment.
10. Unauthorized Disclosure. The Executive shall not make any
Unauthorized Disclosure. For purposes of this Agreement, "Unauthorized
Disclosure" shall mean disclosure by the Executive without the consent of the
Board to any person, other than an employee of the Company or a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of his duties as an executive of the Company or as
may be legally required, of any confidential information obtained by the
Executive while in the employ
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of the Company (including, but not limited to, any confidential information with
respect to any of the Company's customers or methods of distribution) the
disclosure of which he knows or has reason to believe will be materially
injurious to the Company; provided, however, that such term shall not include
the use or disclosure by the Executive, without consent, of any information
known generally to the public (other than as a result of disclosure by him in
violation of this Section 10) or any information not otherwise considered
confidential by a reasonable person engaged in the same business as that
conducted by the Company.
11. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and assigns and the Company
shall require any successor or assign to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession or
assignment had taken place. The term "the Company" as used herein shall
include such successors and assigns. The term "successors and assigns"
as used herein shall mean a corporation or other entity acquiring all
or substantially all the assets and business of the Company (including
this Agreement) whether by operation of law or otherwise.
(b) Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by the Executive, his beneficiaries
or legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal personal representative.
12. Fees and Expenses. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Executive as they become due as a result of (i) the Executive's termination of
employment (including all such fees and expenses, if any, incurred in contesting
or disputing any such termination of employment), (ii) the Executive's hearing
before the Board as contemplated in Section 8(a)(2) of this Agreement, or (iii)
the Executive's seeking to obtain or enforce any right or benefit provided by
this Agreement or by any other plan or arrangement maintained by the Company
under which the Executive is or may be entitled to receive benefits.
13. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address shall be effective only upon receipt.
14. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plan or
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program provided by the Company or any of its subsidiaries and for which the
Executive may qualify, nor shall anything herein limit or reduce such rights as
the executive may have under any other agreements with the Company or any of its
subsidiaries. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any of
its subsidiaries shall be payable in accordance with such plan or program,
except as explicitly modified by this Agreement.
15. Settlement of Claims. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others.
16. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreement or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
17. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California without
giving effect to the conflict of law principles thereof.
18. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer and the Executive has executed this
Agreement as of the day and year first above written.
Ribapharm Inc.
ATTEST: By:
--------------------------------
Title:
---------------------------
Secretary
The Executive
By:
--------------------------------
Xxxxxxx X. Xxxxx
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