EMPLOYMENT AGREEMENT
EXHIBIT 10.9.3
EMPLOYMENT AGREEMENT (this “Agreement”), dated as of March 27, 2007, by and between Par
Pharmaceutical, Inc., a Delaware corporation (“Par” or “Employer”), and Xxxx Xxxxxxxxxx
(“Executive”).
RECITALS:
A. WHEREAS, Executive is presently employed in the capacity of Executive Vice President,
Business Development; and
B. WHEREAS, Employer and Executive desire to cancel and replace Executive’s existing
Employment Agreement, dated September 17, 2005, and enter into this Agreement in order for
Executive to assume the position of President, Generic Products Division and to perform the duties
associated with this position with Employer on the terms and conditions set forth herein.
In consideration of the mutual promises herein contained, the parties hereto hereby agree as
follows:
1. Employment.
1.1. General. Employer hereby employs Executive in the capacity of President,
Generics Division at the compensation rate and benefits set forth in Section 2 hereof for
the Employment Term (as defined in Section 3.1 hereof). Executive hereby accepts such
employment, subject to the terms and conditions herein contained. In all such capacity,
Executive shall perform and carry out such duties and responsibilities as may be assigned
to him from time to time by the Board and by the Chief Executive Officer of Par reasonably
consistent with Executive’s position and this Agreement, and shall report to the Board and
the Chief Executive Officer of Par.
1.2. Time Devoted to Position. Executive, during the Employment Term, shall
devote substantially all of his business time, attention and skills to the business and
affairs of Employer.
1.3. Certifications. Whenever the Chief Executive Officer of Par is required
by law, rule or regulation or requested by any governmental authority or by Par’s auditors
to provide certifications with respect to Par’s financial statements or filings with the
Securities and Exchange Commission or any other governmental authority, Executive shall
sign such certifications as may be reasonably requested by the Chief Executive Officer of
Par and/or Employer, with such exceptions as Executive deems necessary to make such
certifications accurate and not misleading.
2. Compensation and Benefits.
2.1. Salary. At all times Executive is employed hereunder, Employer shall pay
to Executive, and Executive shall accept, as full compensation for any and all services
rendered and to be rendered by him during such period to Employer in all capacities,
including, but not limited to, all services that may be rendered by him to any of
Employer’s existing subsidiaries, entities and organizations hereafter formed, organized or
acquired by Employer, directly or indirectly (each, a “Subsidiary” and collectively, the
“Subsidiaries”), the following: (i) a base salary at the annual rate of $350,000 (Three
Hundred and Fifty Thousand Dollars), or at such increased rate as the Board (through its
Compensation and Equity Awards Committee), in its sole discretion, may hereafter from time
to time grant to Executive hereof (as so adjusted, the “Base Salary”); and (ii) any
additional bonus and the benefits set forth in Sections 2.2, 2.3 and 2.4 hereof. The Base
Salary shall be payable in accordance with the regular payroll practices of Employer
applicable to senior executives, less such deductions as shall be required to be withheld
by applicable law and regulations or otherwise.
2.2. Bonus. Subject to Section 3.3 hereof, Executive shall be entitled to an
annual bonus during the Employment Term in such amount (if any) as determined by the Board
based on such performance criteria as it deems appropriate, including, without limitation,
Executive’s performance and Employer’s earnings, financial condition, rate of return on
equity and compliance with regulatory requirements. The target amount of Executive’s Bonus
shall be equal to 50% of his Base Salary.
2.3. Equity Awards. Executive shall be entitled to participate in long-term
incentive plans commensurate with his titles and positions, including, without limitation,
stock option, restricted stock, and similar equity plans of Employer as may be offered from
time to time.
2.4. Executive Benefits.
2.4.1. Expenses. Employer shall promptly reimburse Executive for expenses he
reasonably incurs in connection with the performance of his duties (including business
travel and entertainment expenses) hereunder, all in accordance with Employer’s policies
with respect thereto as in effect from time to time.
2.4.2. Employer Plans. Executive shall be entitled to participate in such
employee benefit and welfare plans and programs as Employer may from time to time generally
offer or provide to executive officers of Employer or its Subsidiaries, including, but not
limited to, participation in life insurance, health and accident, medical plans and
programs and profit sharing and retirement plans.
2.4.3. Vacation. Executive shall be entitled to four (4) weeks of paid
vacation per calendar year, prorated for any partial year.
2.4.4. Life Insurance. Employer shall obtain (provided, that Executives
qualifies on a non-rated basis) a term life insurance policy, the premiums of which shall
be borne by Employer and the death benefits of which shall be payable to
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Executive’s estate, or as otherwise directed by Executive, in the amount of $1 million
throughout the Employment Term.
2.4.5 Automobile. Employer shall provide Executive with an automobile cash allowance
of one thousand and fifty dollars ($1,050) (gross) per month.
3. Employment Term; Termination.
3.1. Employment Term. Executive’s employment hereunder shall commence on the
date hereof and, except as otherwise provided in Section 3.2 hereof, shall continue until
the third (3rd) anniversary of the date of this Agreement (the “Initial Term”).
Thereafter, this Agreement shall automatically be renewed for successive one-year periods
commencing on the third (3rd) anniversary of the date of this Agreement (the
Initial Term, together with any such subsequent employment period(s), being referred to
herein as the “Employment Term”), unless Executive or Employer shall have provided a Notice
of Termination (as defined in Section 3.4.2 hereof) in respect of its or his election not
to renew the Employment Term to the other party at least 90 days prior to such termination.
Upon nonrenewal of the Employment Term pursuant to this Section 3.1 or termination pursuant
to Sections 3.2.1 through 3.2.6 hereof, inclusive, Executive shall be released from any
duties hereunder (except as set forth in Section 4 hereof) and the obligations of Employer
to Executive shall be as set forth in Section 3.3 hereof only.
3.2. Events of Termination. The Employment Term shall terminate upon the
occurrence of any one or more of the following events:
3.2.1. Death. In the, event of Executive’s death, the Employment Term shall
terminate on the date of his death.
3.2.2. Without Cause By Executive. Executive may terminate the Employment
Term at any time during such Term for any reason whatsoever by giving a Notice of
Termination to Employer. The Date of Termination pursuant to this Section 3.2.2 shall be
thirty (30) days after the Notice of Termination is given.
3.2.3. Disability. In the event of Executive’s Disability (as hereinafter
defined), Employer may, at its option, terminate the Employment Term by giving a Notice of
Termination to Executive. The Notice of Termination shall specify the Date of Termination,
which date shall not be earlier than thirty (30) days after the Notice of Termination is
given. For purposes of this Agreement, “Disability” means disability as defined in any
long-term disability insurance policy provided by Employer and insuring Executive, or, in
the absence of any such policy, the inability of Executive for 180 days in any twelve (12)
month period to substantially perform his duties hereunder as a result of a physical or
mental illness, all as determined in good faith by the Board.
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3.2.4. For Cause By Employer. Employer may terminate the Employment Term for “Cause”
based on objective factors determined in good faith by a majority of the Board as set forth
in a Notice of Termination to Executive specifying the reasons for termination and the
failure of the Executive to cure the same within ten (10) days after Employer shall have
given the Notice of Termination; provided, however, that in the event the
Board in good faith determines that the underlying reasons giving rise to such
determination cannot be cured, then the ten (10) day period shall not apply and the
Employment Term shall terminate on the date the Notice of Termination is given. For
purposes of this Agreement, “Cause” shall mean (i) Executive’s conviction of, guilty or no
contest plea to, or confession of guilt of, a felony, or other crime involving moral
turpitude; (ii) an act or omission by Executive in connection with his employment that
constitutes fraud, criminal misconduct, breach of fiduciary duty, dishonesty, gross
negligence, malfeasance, willful misconduct or other conduct that is materially harmful or
detrimental to Employer; (iii) a material breach by Executive of this Agreement; (iv)
continuing failure to perform such duties as are assigned to Executive by Employer in
accordance with this Agreement, other than a failure resulting from a Disability; (v)
Executive’s knowingly taking any action on behalf of Employer or any of its affiliates
without appropriate authority to take such action; (vi) Executive’s knowingly taking any
action in conflict of interest with Employer or any of its affiliates given Executive’s
position with Employer; and/or (vii) the commission of an act of personal dishonesty by
Executive that involves personal profit in connection with Employer.
3.2.5. Without Cause By Employer. Employer may terminate the Employment Term
for any reason or no reason whatsoever (other than for the reasons set forth elsewhere in
this Section 3.2) by giving a Notice of Termination to Executive. The Notice of Termination
shall specify the Date of Termination, which date shall not be earlier than thirty (30)
days after the Notice of Termination is given or such shorter period if Employer shall pay
to Executive that amount of the Base Salary amount that would have been earned between the
thirty (30) day period and such shorter period.
3.2.6. Employer’s Material Breach. Executive may terminate the Employment
Term upon Employer’s material breach of this Agreement and the continuation of such breach
for more than ten (10) days after written demand for cure of such breach is given to
Employer by Executive (which demand shall identify the manner in which Employer has
materially breached this Agreement). Employer’s material breach of this Agreement shall
mean (i) the failure of Employer to make any payment that it is required to make hereunder
to Executive when such payment is due or within two (2) business days thereafter; (ii) the
assignment to Executive, without Executive’s express written consent, of duties
inconsistent with his positions, responsibilities and status with Employer, or a change in
Executive’s reporting responsibilities, titles or offices or any plan, act, scheme or
design to constructively terminate the Executive, or any removal of Executive from his
positions with Employer, except in connection with the termination of the Employment Term
by Employer for Cause, without Cause or Disability or as a result of Executive’s death or
voluntary resignation or by Executive other than pursuant to this Section 3.2.6; (iii) a
reduction by Employer in Executive’s Base Salary; or (iv) a permanent reassignment of
Executive’s
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primary work location, without the consent of Executive, to a location more than 35
miles from Employer’s executive offices in Woodcliff Lake, New Jersey.
3.3. Certain Obligations of Employer Following Termination of the Employment
Term. Following termination of the Employment Term under the circumstances described
below, Employer shall pay to Executive or his estate, as the case may be, the following
compensation and provide the following benefits in full satisfaction and final settlement
of any and all claims and demands that Executive now has or hereafter may have hereunder
against Employer. In connection with Executive’s receipt of any or all monies and benefits
to be received pursuant to this Section 3.3, Executive shall not have a duty to seek
subsequent employment during the period in which he is receiving severance payments and the
Severance Amount (as defined in Section 3.3.2 hereof) shall not be reduced solely as a
result of Executive’s subsequent employment by an entity other than Employer.
3.3.1. For Cause. In the event that the Employment Term is terminated by
Employer for Cause, Employer shall pay to Executive, in a single lump-sum within 30 days of
the Date of Termination, an amount equal to any unpaid but earned Base Salary through the
Date of Termination.
3.3.2. Without Cause by Employer; Material Breach by Employer; Non-Renewal by
Employer. In the event that the Employment Term is terminated by Employer pursuant to
Section 3.2.5 hereof or by Executive pursuant to Section 3.2.6 hereof, or is not renewed by
Employer pursuant to Section 3.1 hereof, Employer shall pay to Executive severance in an
amount equal to two (2) times his Base Amount, and Executive shall retain all vested
benefits granted pursuant to Section 2.3 hereof. For purposes hereof, “Base Amount” shall
mean the Base Salary in effect at such applicable time plus, if Executive’s termination is
not a result of, in whole or in part, Executive’s performance in respect of his duties
hereunder, the amount of Executive’s last annual cash bonus pursuant to Section 2.2 hereof.
Any payments made in accordance with this Section 3.3.2 shall be made in twenty-four (24)
equal monthly installments from the Date of Termination in accordance with Employer’s
regular payroll practices, or, if upon agreement of Executive and Employer, in a lump sum
within 30 days of the Date of Termination, subject to Executive’s continued compliance with
the terms of Section 4 hereof and the execution by Executive of Employer’s standard form
Release Agreement in effect at the time.
3.3.3. Without Cause By Executive; Election Not to Renew by Executive. In the
event that the Employment Term is terminated by Executive pursuant to Section 3.2.2 hereof
or Executive elects not to renew this Agreement pursuant to Section 3.1 hereof, Employer
shall pay to Executive, in a single lump-sum within 30 days of the Date of Termination, an
amount equal to any unpaid but earned Base Salary through the Date of Termination.
3.3.4. Death, Disability. In the event that the Employment Term is terminated
by reason of Executive’s death pursuant to Section 3.2.1 hereof or by Employer by reason of
Executive’s Disability pursuant to Section 3.2.3 hereof, Employer
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shall pay to Executive, subject to, in the case of Disability, Executive’s continued
compliance with Section 4 hereof, the Severance Amount, less any life insurance and/or
disability insurance received by Executive or his estate pursuant to insurance policies
provided by Employer (including pursuant to Section 2.4.4 hereof), payable in accordance
with Section 3.3.2 hereof, and Executive shall retain all vested benefits granted pursuant
to Section 2.3 hereof.
3.3.5. Post-Employment Term Benefits. In the event Executive is terminated
pursuant to Sections 3.2.1 through 3.2.6 hereof, inclusive, or either Employer or Executive
elects not to renew this Agreement pursuant to Section 3.1 hereof, Employer shall reimburse
Executive for any unpaid expenses pursuant to Section 2.4.1 hereof, and Executive will have
the opportunity and responsibility to elect COBRA continuation coverage pursuant to the
terms of that law and will thus be responsible for the execution of the continuation of
coverage forms upon termination of his insurance coverage. Except as provided immediately
below, Executive will be responsible for all COBRA payments. Specifically, if Executive is
terminated pursuant to Sections 3.2.3, 3.2.5 or 3.2.6 hereof, or Employer elects not to
renew this Agreement pursuant to Section 3.1 hereof, Executive shall be entitled to
participate, at Employer’s expense, in all medical and health plans and programs of
Employer in accordance with COBRA for a period of eighteen (18) months (the “Benefits
Period”), subject to the execution by Executive of Employer’s standard form Release
Agreement in effect at the time and Executive’s continued compliance with the terms of
Section 4 hereof; provided, that Executive’s continued participation is legally
possible under the general terms and provisions of such plans and programs; and
provided, further, that in the event Executive is entitled to equal or
comparable benefits from a subsequent employer during the Benefits Period, Employer’s
obligation with respect thereto pursuant to this Section 3.3.5 shall end as of such date.
3.3.6. Equity Awards.
(a) If, within twelve (12) months following a Change of Control (as defined in Section
3.4.1 hereof) of Employer, the Employment Term is terminated other than for Cause, then
Executive (or his estate) shall have twenty-four (24) months from the date of termination
to exercise any vested equity awards; provided, that the relevant equity award plan
remains in effect and such equity awards shall not have otherwise expired in accordance
with the terms thereof. In connection therewith, Employer agrees to use commercially
reasonable efforts to amend Executive’s Equity Award Agreements if necessary to effectuate
the provisions of this Section 3.3.6(a).
(b) In the event the Employment Term is terminated (i) by Employer pursuant to Section
3.2.5 hereof and the reason for such termination is not related to the performance of
Executive in his duties with respect to Employer, or (ii) by Executive pursuant to Section
3.2.6 hereof, then all equity awards theretofore granted to Executive shall thereupon vest
and Executive shall have twenty-four (24) months from such date to exercise such options;
provided, that the relevant equity award plan remains in effect and such equity
awards shall not have otherwise expired in accordance with the terms thereof. In connection
therewith, Employer agrees to use commercially reasonable
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efforts to amend Executive’s Equity Award Agreements if necessary to effectuate the
provisions of this Section 3.3.6(b).
3.4. Definitions.
3.4.1. “Change of Control” Defined. A “Change of Control” of Employer means
(i) the approval by the stockholders of Par of the sale, lease, exchange or other transfer
(other than pursuant to internal reorganization) by Par of all or substantially all of its
respective assets to a single purchaser or to a group of associated purchasers; (ii) the
first purchase of shares of equity securities of Par pursuant to a tender offer or exchange
offer (other than an offer by Par) for at least fifteen (15%) percent of the equity
securities of Par; (iii) the approval by the stockholders of Par of an agreement for a
merger or consolidation in which Par shall not survive as an independent, publicly-owned
corporation; (iv) the acquisition (including by means of a merger) by a single purchaser or
a group of associated purchasers of securities of Par from either Par or any third party
representing thirty-five (35%) percent or more of the combined voting power of Par’s then
outstanding equity securities in one or a related series of transactions (other than
pursuant to an internal reorganization) or (v) the change of the membership of a majority
of the Board during any period of two (2) consecutive years, unless the election, or the
nomination for election by Par’s stockholders, of each new director was approved by a vote
of at least two-thirds of the directors of the Board still in office who were directors of
Par at the beginning of the period.
3.4.2. “Notice of Termination” Defined. “Notice of Termination” means a
written notice that indicates the specific termination provision relied upon by Employer or
Executive and, except in the case of termination pursuant to Sections 3.2.1, 3.2.2 or 3.2.5
hereof, that sets forth in reasonable detail the facts and circumstances claimed to provide
a basis for termination of the Employment Term under the termination provision so
indicated.
3.4.3. “Date of Termination” Defined. “Date of Termination” means such date
as the Employment Term is expired if not renewed or terminated in accordance with Sections
3.1 or 3.2 hereof.
4. Confidentiality/ Non-Solicitation/Non-Compete.
4.1. “Confidential Information” Defined. “Confidential Information” means any
and all information (oral or written) relating to Employer or any Subsidiary or any person
or entity controlling, controlled by, or under common control with Employer or any
Subsidiary or any of their respective activities, including, but not limited to,
information relating to: technology, research, test procedures and results, machinery and
equipment; manufacturing processes; financial information; products; identity and
description of materials and services used; purchasing; costs; pricing; customers and
prospects; advertising, promotion and marketing; and selling, servicing and information
pertaining to any governmental investigation, except such information which becomes public,
other than as a result of a breach of the provisions of Section 4.2 hereof.
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4.2. Non-disclosure of Confidential Information. Executive shall not at any
time (other than as may be required or appropriate in connection with the performance by
him of his duties hereunder), directly or indirectly, use, communicate, disclose or
disseminate any Confidential Information in any manner whatsoever for the benefit of any
person or entity other than Employer (except as may be required under legal process by
subpoena or other court order).
4.3. Non-Solicitation. Executive shall not, while employed by Employer and
for a period of one (1) year following the Date of Termination, directly or indirectly,
hire, offer to hire, entice away or in any other manner persuade or attempt to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee, customer, prospective
customer, or supplier of Employer or any of its Subsidiaries to discontinue or alter his or
its relationship with Employer or any of its Subsidiaries.
4.4. Non-Competition. Executive shall not, while employed by Employer and for
a period of one (1) year following the Date of Termination, directly or indirectly provide
any services (whether in the management, sales, marketing, public relations, finance,
research, development, general office, administrative, or other areas) as an employee,
agent, stockholder, officer, director, consultant, advisor, investor, or other
representative of Employer’s competitors in the branded or generic pharmaceutical industry
in any state or country in which Employer does or seeks to do business. Employer’s
competitors include any entity, individual, or affiliate of such company or individual that
develops, sells, markets, or distributes any products that compete with or are the same or
similar to those of Employer. However, the restrictions of this paragraph 4.4 shall not
apply if the Employment Term is terminated by Employer pursuant to Section 3.2.5 hereof or
by Executive properly pursuant to Section 3.2.6 hereof; nor shall this paragraph prohibit
Executive from being a passive owner of not more than one percent (1%) of any
publicly-traded class of capital stock of any entity engaged in a competing business.
4.5. Injunctive Relief. The parties hereby acknowledge and agree that (a) the
type, scope and periods of restrictions imposed in paragraph 4 are necessary, fair and
reasonable to protect Employer’s legitimate business interests and to prevent the
inevitable disclosure of Employer’s Confidential Information; (b) Employer will be
irreparably injured in the event of a breach by Executive of any of his obligations under
this Section 4; (c) monetary damages will not be an adequate remedy for any such breach;
(d) Employer will be entitled to injunctive relief, in addition to any other remedy which
it may have, in the event of any such breach; and (e) the existence of any claims that
Executive may have against Employer, whether under this Agreement or otherwise, will not be
a defense to the enforcement by Employer of any of its rights under this Section 4.
4.6. Non-exclusivity and Survival. The covenants of Executive contained in
this Section 4 are in addition to, and not in lieu of, any obligations that Executive may
have with respect to the subject matter hereof, whether by contract, as a matter of law or
otherwise, and such covenants and their enforceability shall survive any
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termination of the Employment Term by either party and any investigation made with
respect to the breach thereof by Employer at any time.
5. Miscellaneous Provisions.
5.1. Severability. If, in any jurisdiction, any term or provision hereof is
determined to be invalid or unenforceable, (a) the remaining terms and provisions hereof
shall be unimpaired; (b) any such invalidity or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction; and (c)
the invalid or unenforceable term or provision shall, for purposes of such jurisdiction, be
deemed replaced by a term or provision that is valid and enforceable and that comes closest
to expressing the intention of the invalid or unenforceable term or provision.
5.2. Execution in Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each of which
shall be deemed to be an original but all of which taken together shall constitute one and
the same agreement (and all signatures need not appear on any one counterpart), and this
Agreement shall become effective when one or more counterparts has been signed by each of
the parties hereto and delivered to each of the other parties hereto.
5.3. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given upon receipt when delivered by
hand, overnight delivery or telecopy (with confirmed delivery), or three (3) business days
after posting, when delivered by registered or certified mail or private courier service,
postage prepaid, return receipt requested, as follows:
If to Employer, to:
Par Pharmaceutical, Inc.
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Chairman
Telecopy No. 000-000-0000
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Chairman
Telecopy No. 000-000-0000
Copy to:
Xxxxxxxxx X. Xxxxxx, Esq.
Xxxxxxx, Del Deo, Dolan, Griffinger & Xxxxxxxxx, P.C.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Xxxxxxx, Del Deo, Dolan, Griffinger & Xxxxxxxxx, P.C.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Telecopy No.: (000) 000-0000
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If to Executive, to:
Xxxx Xxxxxxxxxx
c/o Par Pharmaceutical, Inc.
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
c/o Par Pharmaceutical, Inc.
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
or to such other address(es) as a party hereto shall have designated by like notice to the other
parties hereto.
5.4. Amendment. No provision of this Agreement may be modified, amended,
waived or discharged in any manner except by a written instrument executed by both Par and
Executive.
5.5. Entire Agreement. This Agreement and, with respect to Section 3.3.6
hereof, Executive’s Equity Award Agreements and governing equity award plans constitute the
entire agreement of the parties hereto with respect to the subject matter hereof, and
supersede all prior agreements and understandings of the parties hereto, oral or written,
including, but not limited to, the parties’ Employment Agreement dated December 20, 2004.
Executive and Employer hereby agree that the Employment Agreement dated September 17, 2005,
is hereby superseded and of no further force and effect, and that this Agreement shall be
effective as of the date hereof. In the event of any conflict between Section 3.3.6 hereof
and Executive’s Equity Award Agreements and the governing equity award plans, Section 3.3.6
shall govern.
5.6. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey applicable to contracts made and to be
wholly performed therein.
5.7. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
5.8. Binding Effect; Successors and Assigns. Executive may not delegate any
of his duties or assign his rights hereunder. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their respective heirs, legal representatives,
successors and permitted assigns. Employer shall require any successor (whether direct or
indirect and whether by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Employer, by an agreement in form and
substance reasonably satisfactory to Executive, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that Employer would be required to
perform if no such succession had taken place.
5.9. Waiver, etc. The failure of either of the parties hereto to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed to be a
waiver of any such provision, nor to in any way affect the validity of this Agreement or
any provision hereof or the right of either of the parties hereto thereafter to enforce
each and every provision of this Agreement. No waiver of any
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breach of any of the provisions of this Agreement shall be effective unless set forth
in a written instrument executed by the party against whom or which enforcement of such
waiver is sought, and no waiver of any such breach shall be construed or deemed to be a
waiver of any other or subsequent breach.
5.10. Capacity, etc. Executive and Employer hereby represent and warrant to
the other that, as the case may be: (a) he or it has full power, authority and capacity to
execute and deliver this Agreement, and to perform his or its obligations hereunder; (b)
such execution, delivery and performance shall not (and with the giving of notice or lapse
of time or both would not) result in the breach of any agreements or other obligations to
which he or it is a party or he or it is otherwise bound; and (c) this Agreement is his or
its valid and binding obligation in accordance with its terms.
5.11. Enforcement; Jurisdiction. If any party institutes legal action to
enforce or interpret the terms and conditions of this Agreement, the prevailing party shall
be awarded reasonable attorneys’ fees at all trial and appellate levels, and the expenses
and costs incurred by such prevailing party in connection therewith. Any legal action, suit
or proceeding, in equity or at law, arising out of or relating to this Agreement shall be
instituted exclusively in the State or Federal courts located in the State of New Jersey,
and each party agrees not to assert, by way of motion, as a defense or otherwise, in any
such action, suit or proceeding, any claim that such party is not subject personally to the
jurisdiction of any such court, that the action, suit or proceeding is brought in an
inconvenient forum, that the venue of the action, suit or proceeding is improper or should
be transferred, or that this Agreement or the subject matter hereof may not be enforced in
or by any such court. Each party further irrevocably submits to the jurisdiction of any
such court in any such action, suit or proceeding. Any and all service of process and any
other notice in any such action, suit or proceeding shall be effective against any party if
given personally or by registered or certified mail, return receipt requested or by any
other means of mail that requires a signed receipt, postage prepaid, mailed to such party
as herein provided. Nothing herein contained shall be deemed to affect or limit the right
of any party to serve process in any other manner permitted by applicable law.
5.12. Arbitration.
(a) Any dispute under Section 3 hereof, including, but not limited to, the
determination by the Board of a termination for Cause pursuant to Section 3.2.4 hereof, or
in respect of the breach thereof shall be settled by arbitration in New Jersey. The
arbitration shall be accomplished in the following manner. Either party may serve upon the
other party written demand that the dispute, specifying the nature thereof, shall be
submitted to arbitration. Within ten (10) days after such demand is given in accordance
with Section 5.3 hereof, each of the parties shall designate an arbitrator and provide
written notice of such appointment upon the other party. If either party fails within the
specified time to appoint such arbitrator, the other party shall be entitled to appoint
both arbitrators. The two (2) arbitrators so appointed shall appoint a third arbitrator. If
the two arbitrators appointed fail to agree upon a third arbitrator within ten (10) days
after their appointment, then an application may be made by either party hereto, upon
written notice to the other party, to the American Arbitration Association (the
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“AAA”), or any successor thereto, or if the AAA or its successor fails to appoint a
third arbitrator within ten (10) days after such request, then either party may apply, with
written notice to the other, to the Superior Court of New Jersey, Bergen County, for the
appointment of a third arbitrator, and any such appointment so made shall be binding upon
both parties hereto.
(b) The decision of the arbitrators shall be final and binding upon the parties. The
party against whom the award is rendered (the “non-prevailing party”) shall pay all fees
and expenses incurred by the prevailing party in connection with the arbitration (including
fees and disbursements of the prevailing party’s counsel), as well as the expenses of the
arbitration proceeding. The arbitrators shall determine in their decision and award which
of the parties is the prevailing party, which is the non-prevailing party, the amount of
the fees and expenses of the prevailing party and the amount of the arbitration expenses.
The arbitration shall be conducted, to the extent consistent with this Section 5.12, in
accordance with the then prevailing rules of commercial arbitration of the AAA or its
successor. The arbitrators shall have the right to retain and consult experts and competent
authorities skilled in the matters under arbitration, but all consultations shall be made
in the presence of both parties, who shall have the full right to cross-examine the experts
and authorities. The arbitrators shall render their award, upon the concurrence of at least
two of their number, not later than thirty (30) days after the appointment of the third
arbitrator. The decision and award shall be in writing, and counterpart copies shall be
delivered to each of the parties. In rendering an award, the arbitrators shall have no
power to modify any of the provisions of this Agreement, and the jurisdiction of the
arbitrators is expressly limited accordingly. Judgment may be entered on the award of the
arbitrators and may be enforced in any court having jurisdiction.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto as of
the date first above written.
| PAR PHARMACEUTICAL, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
| /s/ Xxxx Xxxxxxxxxx | ||||
| Xxxx Xxxxxxxxxx | ||||
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