EXHIBIT 10.29
EMPLOYMENT AGREEMENT
THIS IS AN EMPLOYMENT AGREEMENT, dated January 15, 1996, by and between
ANDRX CORPORATION ("Company"), a Florida corporation, and XXXXXX X. XXXXXXXX
("Executive") of Port Washington, New York.
WHEREAS, the Company wishes to assure itself of the services of Executive
for the period provided in this Agreement and Executive is willing to serve in
the employ of the Company upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive and Executive
agrees to enter into the employ of the Company, upon the terms and conditions
herein provided. For purposes of this Agreement the term "Company" shall mean
and include Andrx Corporation and any of its subsidiaries, whether now in
existence or hereafter formed. Executive warrants to Company that his execution
of this Agreement and the performance by him of the duties hereunder will not
violate the terms of any other agreements to which Executive is a party.
2. POSITION AND RESPONSIBILITIES. During the period of his employment
hereunder, Executive agrees to serve as Vice President/Chief Financial Officer
of the Company, to be responsible for the financial reporting of the operations
of the Company and to perform such other duties as may appropriately be
delegated to him from time to time in connection with the Company's affairs.
3. TERM OF EMPLOYMENT AND DUTIES.
(A) TERM. Executive's employment shall commence on January 1, 1996
or such later date, not to exceed one month, that Executive commences work for
the Company (the "Effective Date") and shall continue for a period of thirty six
(36) full calendar months thereafter, unless sooner terminated, as provided in
Paragraph 6 hereof ("Initial Term"). The Company shall have the option of
extending the Executive's employment period for an additional two years by
sending written notice of the extension of this Agreement (the "Extension
Notice") to Executive at least 180 days before the expiration of the Initial
Term. If this option is exercised, Executive's continued employment shall be
subject to the terms and conditions of this Agreement, including any
compensation increases which took effect during the Initial Term, commencing the
day after the expiration of the Initial Term and continuing for a period of
twenty four (24) full calendar months thereafter (the "Supplemental Term").
Unless Executive otherwise notifies the Company, in writing, within 90 days of
his receipt of the Extension Notice, it will be presumed that the Executive
agrees to extend this Agreement into the Supplemental Term. In the event the
Company and Executive agree that Executive should continue in the Company's
employ after the end of the Supplemental Term, such continued employment shall
be subject to the terms and conditions of this Agreement, except as otherwise
agreed to by the parties in writing, and shall thereafter expire upon ninety
(90)
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days written notice by either party to the other or as otherwise provided in
Paragraph 6.
(B) DUTIES. Executive shall devote his full time, attention, skill
and best efforts to the faithful performance of his duties to the Company.
Executive shall not engage in any other business or occupation without the
Company's written consent; provided, however, nothing contained herein shall
prohibit Executive from making passive or personal investments. Executive
acknowledges that he shall travel as reasonably required around the United
States and abroad in connection with his employment.
4. COMPENSATION.
(A) BASE COMPENSATION. For all services rendered by Executive in any
capacity during his employment under this Agreement, including, without
limitation, services as an executive, officer, director or member of any
committee of the Company, the Company shall pay Executive a base compensation of
One Hundred Twenty Thousand ($120,000) Dollars per year, commencing with the
Effective Date. Executive's performance shall be reviewed on an annual basis to
determine whether Executive's base compensation should be increased and/or
whether Executive should receive a bonus.
(B) FRINGE COMPENSATION. In addition to the foregoing, the Company
shall provide Executive with the following:
(1) MEDICAL INSURANCE. Medical insurance coverage for the Executive, his
spouse and dependent children.
(2) DENTAL INSURANCE. Dental insurance coverage for the Executive, his
spouse and dependent children.
(3) LIFE INSURANCE. At least Two Hundred Thousand Dollars ($200,000) of
Company paid life insurance coverage.
(4) STOCK OPTIONS. While the actual stock option grant, vesting schedule
and exercise price of any stock options to be awarded to Executive is be
determined by the Andrx Board of Directors, the Company's officers will
recommend that Executive be awarded non-qualified stock options to acquire up to
40,000 shares of Andrx common stock, vesting 20% annually and with a ten year
term, at the next meeting of the Board. The Company's officers anticipate that
these options will be approved as set forth above and that the per share
exercise price of those options will approximate the fair market value of
Andrx's common stock on the date of such grant.
(5) VACATION. Four (4) weeks of vacation with full pay each 12-month
period during the term of this Agreement, at such times as shall be mutually
agreed upon by Executive and the Chairman of the Company. Executive shall not
receive any additional compensation for vacation time which he does not use.
Unused vacation time shall generally not be "carried over" to a
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subsequent period.
(6) PROFESSIONAL DEVELOPMENT. Payment or reimbursement for all reasonable
fees, travel and other expenses incurred by Executive in connection with
attendance at seminars and conferences relating to the business of the Company
and the maintenance of Executive's license. Executive will receive his usual pay
while attending such seminars and conferences and will be reimbursed following
presentation, from time to time, of an itemized account of such expenditures, in
such detail as may reasonably be required by the Company ("vouchers").
(7) EXPENSE REIMBURSEMENT. Payment or reimbursement of Executive's
reasonable travel and other expenses (including without limitation entertainment
expenses incurred primarily for the benefit of the Company) incurred by
Executive in performing his duties under this Agreement and in carrying out and
promoting the business of the Company, upon presentation by him, from time to
time, of vouchers in such detail as may reasonably be required by the Company.
(8) OTHER BENEFITS. Executive shall receive the relocation benefits
described in the letter attached hereto as Exhibit A (the "Offer Letter") and
shall be entitled to such other benefits, if any, that are made available to all
of the Company's other senior executives. Nothing in this Agreement shall be
construed to limit the participation of Executive in any pension or profit
sharing plan, stock purchase plan, stock option plan, group life insurance plan,
hospitalization insurance plan, medical services plan, or other plan of the
Company now or hereafter existing for the benefit of the Company's employees
generally, if such other benefit is not reflected above.
(C) DEATH OF EMPLOYEE. Upon the death of the Executive, his personal
representative shall be entitled to receive his base compensation accrued but
unpaid as of the date of termination. Said payments shall be made within 30 days
after the appointment of such personal representative.
5. KEY-MAN INSURANCE. At any time during the term of this Agreement, the
Company shall have the right to insure the life of Executive for the sole
benefit of the Company. The amount of such insurance and the type of policy
taken out shall be determined by the Company, and all premiums payable thereon
shall be the obligation of the Company. Executive shall have no interest in any
such policy, but shall cooperate with the Company in taking out such insurance
by submitting to physical examinations, by supplying all information required by
the insurance company, and by executing all necessary documents, provided that
no financial obligation is imposed upon the Executive by any such documents.
6. TERMINATION. Except as herein provided, this Agreement shall terminate
upon the occurrence of any one of the events set forth below:
(A) The expiration of the Initial Term or the Supplemental Term or
the expiration thereafter pursuant to notice by the Company or Executive as set
forth in Paragraph 3(A). If the Company decides to not extend this Agreement for
the Supplemental Term and the Executive's employment terminates at the
expiration of the Initial Term, then Executive shall receive and be
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immediately vested with the balance of any employee stock benefits granted to
him pursuant to Paragraph 4(B)(4).
(B) The discharge of the Executive for "cause". "Cause" shall
include Executive's inability or refusal to perform material duties assigned to
him or his material dereliction of his duties hereunder, embezzlement, theft,
misappropriation of funds, or a violation of Paragraphs 7 or 8 herein. In any
case where the existence of "cause" is in dispute, such dispute shall be settled
by arbitration pursuant to the Florida Arbitration Code (Florida Statutes
Chapter 682) as presently enacted or as it may hereafter be amended. Any
violation by Executive of Paragraphs 7 or 8 herein shall be presumed to involve
an intent to injure the Company or to profit personally, and Executive shall
have the burden of proving otherwise.
(C) If Executive is terminated without Cause during the Initial Term
or the Supplemental Term, except in the case of a change in control of the
Company (as defined below), Executive shall receive, in lieu of any other
benefits under this Agreement or otherwise, (i) $90,000, if such termination
occurs in the Initial Term, or an amount equal to his then current annual base
compensation the for balance of the Supplemental Term or $90,000, whichever is
less, if such termination occurs in the Supplemental Term; (ii) all of his
vested employee stock benefits; and (iii) the immediate vesting of the options
granted pursuant to Paragraph 4(B)(4) above which are scheduled to vest within
365 days of the date of termination; and (iv) the immediate vesting of such
additional options (if any) as is necessary to vest Executive with 20,000 of the
stock options granted pursuant to Paragraph 4(B)(4) above (following the
application of the preceding subpart). Unless the Company's cash position
otherwise requires, the payment set forth in subpart (i) above may be made in
one lump sum or in such other manner as the Company and Executive may agree
upon.
(D) If, within one year of a change in control of the Company,
Executive is terminated without Cause or Executive terminates his employment for
good cause (i.e. as a result of his position or responsibilities being
eliminated or significantly reduced by such change in control), then Executive
shall receive (i) an amount equal to his then current annual base salary, if
such termination occurs in the Initial Term, or an amount equal to his then
current annual base compensation for the balance of the Supplemental Term or
100% of his then current annual salary, whichever is less, if such termination
occurs in the Supplemental Term; and (ii) all of his vested employee stock
benefits and the balance of any employee stock benefits granted pursuant to
Paragraph 4(B) (4) above, which had not yet vested. Unless the Company's cash
position otherwise requires, the payment set forth in subpart (i) above may be
made in one lump sum or in such other manner as the Company and Executive may
agree upon. A change in the control of the Company shall be deemed to have
occurred if there occurs a "change of control" as defined in Rule 12b-2
promulgated under the Securities Exchange Act of 1934 (the "Act"); when any
"person" as that term is defined in the Act, becomes beneficial owner directly
or indirectly of securities of the Company representing fifty (50%) or more of
the Company's then outstanding securities having a right to vote on the election
of directors; or when individuals who are members of the Board of Directors at
any one time shall immediately thereafter cease to constitute a majority of the
Board of Directors of the Company. The options which the Executive receives or
which vest pursuant to Paragraph 6(A) above, subparts (ii), (iii) or (iv) of
Paragraph 6(C) above, and subpart (ii) of this Paragraph 6(D), must be exercised
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within 12 months of the termination of Executive's employment or within 12
months of the date the Company conducts a public offering of its stock,
whichever is later.
(E) If Executive resigns or Executive and the Company jointly
determine that Executive's continued employment by the Company is no longer
desired, in lieu of any other benefits under this Agreement, Executive shall (i)
receive all of his vested employee stock benefits; (ii) immediately repay the
relocation sales commissions and closing costs paid by the Company pursuant to
the Offer Letter, in the amount described in the Offer Letter, and (iii) be paid
such additional amount, if any, that the Company determines to be proper.
7. EMPLOYEE SOLICITATION. Executive hereby covenants and agrees that
during and for two (2) years after the termination of his employment with the
Company, Executive shall not, either directly or indirectly, for his own account
or as agent, servant, employee or shareholder of any corporation, or as a member
of any firm, engage, hire, employ or solicit the employment of any person who
was an employee of the Company or any of its subsidiaries at the time
Executive's employment was terminated. In the event of an actual or threatened
breach by the Executive of any of this Paragraph 7, the Company shall be
entitled to an injunction restraining the Executive from the prohibited conduct.
Nothing herein stated shall be construed as prohibiting the Company or any
subsidiary from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from the Executive. If the
Company becomes aware of any violation of this covenant, it shall so advise the
Executive and the "two years from termination" time limitation of such covenant
shall be lengthened by a period of time equal to the period of time during which
such breach or breaches occur (such extended period may therefor end before or
after the date Executive is so advised of the violation). If the Company seeks
and obtains injunctive relief from such breach in any court, and such relief is
not appealed from or is sustained on appeal, then the covenants shall be
extended for a period of time equal to the pendency of such proceedings for
injunctive relief, including all appeals by the Executive. If the Company seeks
and initially fails to obtain injunctive relief from such violation, then the
covenants shall be extended for a period of time equal to the pendency of such
proceedings for injunctive relief, including all appeals by the Company. The
existence of any claim or cause of action by the Executive against the Company,
whether predicated upon this Agreement or otherwise, shall not constitute a
defense to the specific enforcement by the Company of the foregoing restrictive
covenants but shall be litigated separately.
8. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges
that the list of the Company's customers, its financial and operating data, its
future plans and its trade secrets, as they may exist from time to time, are
valuable, special and unique assets of the Company. At no time will the
Executive disclose any such list or information, or any part thereof to any
person, firm, corporation, association or other entity for any unauthorized
reason or purpose whatsoever. In the event of a breach or threatened breach by
the Executive of the provisions of this Paragraph, the Company shall be entitled
to an injunction restraining the Executive from disclosing, in whole or in part,
such list or information, or from rendering any services to any person, firm,
corporation, association or other entity to whom such list or information, in
whole or in part, has been disclosed or is threatened to be disclosed. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach, including
recovery
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of damages from the Executive.
9. NOTICES. All notices required to be given under this Agreement shall be
in writing, sent certified mail, return receipt requested, postage prepaid, to
the following addresses or to such other address as either may designate in
writing to the other:
(A) If to the Company, then:
ANDRX Corporation
0000 X.X. 00 Xxx., Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Chairman
(B) If to the Executive, then:
XXXXXX XXXXXXXX
00 Xxxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
10. ARBITRATION. Any disputes arising out of or in connection with this
Agreement or any of its provisions, including but not limited to the alleged
breach of the provisions of this Agreement, shall be submitted to and determined
by arbitration conducted in accordance with the Rules of the American
Arbitration Association. The award rendered by the Arbitrator may be entered as
a judgment (with full binding, force and effect) in any court having
jurisdiction thereof. Unless an emergency remedy is required, this Agreement
shall constitute a written agreement to submit any such dispute or controversy
to arbitration within the meaning of the Florida Arbitration Code and shall
confer jurisdiction on the Courts of the State of Florida to enforce such
agreement to arbitrate and to enter judgment on an award in accordance with said
Florida Arbitration Code.
11. ATTORNEYS' FEES. The successful party to any arbitration or litigation
between or among any of the parties to this Agreement shall be entitled to
recovery a reasonable attorney's fees and court costs. The court or arbitrator
may apportion fees or award fees based upon success in various claims or parts
of any arbitration or litigation.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Any arbitration, lawsuits or
other proceedings related to this Agreement or the transactions herein described
shall be held in Broward County, Florida.
13. WAIVER. The waiver by either party hereto of any breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party hereto.
14. ENTIRE UNDERSTANDING. This Agreement and the Exhibit hereto contain
the entire
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understanding of the parties relating to the employment of the Executive by the
Company. They may not be changed orally but only by an agreement in writing
signed by the party or parties against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. BINDING EFFECT. This Agreement shall be binding upon and inures to the
benefit of the Company, its successors and assigns and the Executive and his
heirs and legal representatives.
16. ASSIGNMENT. Executive acknowledges that the services to be rendered by
him are unique and personal. Accordingly, Executive may not assign any of his
rights (except as specifically permitted herein) or delegate any of his duties
or obligations under this Agreement, except with the written permission of the
Company.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals on the date and year first above written.
ANDRX CORPORATION
/s/ XXXX X. XXXXX /s/ XXXXXX X. XXXXXXXX
------------------------ ------------------------
Xxxx X. Xxxxx, Chairman XXXXXX X. XXXXXXXX
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