EXHIBIT 10.3
RETIREMENT AND CONSULTING AGREEMENT dated as of April 1, 2005, between
KING PHARMACEUTICALS, INC., a Tennessee corporation ("Employer"), and XXXXX X.
XXXXXXXX, an individual domiciled in the State of Tennessee ("Executive").
WHEREAS Executive is presently employed by Employer and serves as its
Chief Financial Officer and as a member of its Board of Directors;
WHEREAS Executive and Employer have mutually agreed that Executive will
retire and cease to be so employed and to so serve as of the Effective Date (as
defined below) and that Executive will provide consulting services to Employer
for a period of time following the Effective Date; and
WHEREAS Executive is eligible to participate in the Severance Pay Plan:
Tier I of Employer (the "Severance Plan"), which is incorporated herein by
reference;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
Retirement and Severance Plan Benefits
SECTION 1.01. Retirement. Executive shall retire, and the employment of
Executive with Employer and its affiliates shall terminate, effective as of June
1, 2005 (the "Effective Date"), and effective as of such date Executive shall
resign as a director, officer and employee of Employer and its affiliates.
Except as provided in Section 1.02, Executive's retirement and termination of
employment pursuant to this Agreement shall be deemed not to be a termination
for "cause" or a resignation for "good reason" for purposes of any employee
benefit plan, program, agreement or arrangement sponsored or maintained by
Employer or its affiliates or to which Employer or its affiliates is a party.
SECTION 1.02. Severance Plan Benefits. (a) Employer acknowledges and
agrees that Executive's retirement and termination of employment pursuant to
this Agreement shall be treated for all purposes of the Severance Plan as a
"Separation from Service without Cause and not following a Change in Control"
(within the meaning of Section 3(l)(C) of the Severance Plan). Following the
Effective Date, Executive and Employer shall each honor and comply with their
respective obligations under the Severance Plan (as modified by Section
1.02(b)).
(b) Notwithstanding anything contained herein or in the Severance Plan
to the contrary:
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
2
(i) Executive shall execute and deliver to Employer a Waiver,
Release and Non-solicitation, Noncompete and Nondisclosure Agreement
(as defined in the Severance Plan) (the "Waiver") no later than May 23,
2005, and Executive's signature of such Waiver shall be dated no later
than such date;
(ii) Employer hereby waives, releases and discharges Executive
from Executive's obligations under Sections 8(a)(i) and 8(a)(ii) of the
Severance Plan, and Employer agrees that Executive's rights under the
Severance Plan shall not be affected in any manner as a result of any
violation of such provisions of the Severance Plan;
(iii) Employer shall pay on behalf of Executive the full cost
of the Severance Benefit coverage described in Section 4(b) of the
Severance Plan and Employer shall pay to Executive annually an amount
equal to the amount of federal income tax Executive will be required to
pay on such benefits; and
(iv) in the event that Executive has not revoked the Waiver
prior to the Effective Date, Employer shall pay the Severance Pay (as
defined in the Severance Plan) to Executive in a lump sum on the
Effective Date; and
(v) any gross-up payment made to Executive pursuant to Section
6 of the Severance Plan shall be made no later than June 15, 2005.
SECTION 1.03. Exclusive Rights. Except for Executive's rights under
this Agreement, the Severance Plan (as modified by Section 1.02(b)) and the 1997
Incentive and Nonqualified Stock Option Plan for Employees of King
Pharmaceuticals, Inc. (which is incorporated herein by reference), Executive
shall not be entitled to, and Employer shall have no liability or obligation to
pay or provide, any compensation, benefits or other amounts with respect to
Executive's employment or the termination thereof, and Executive hereby waives
any and all rights Executive may have to any such compensation, benefits or
other amounts.
SECTION 1.04. Cooperation. From and after the date hereof, Executive
shall provide his reasonable cooperation in connection with any litigation,
suit, action, proceeding or other legal matter (or any appeal therefrom) that
relates to events occurring during his employment with Employer and its
affiliates or his performance of consulting services hereunder, provided that
(i) any time spent by Executive during the Consulting Term (as defined below) in
providing such cooperation shall be credited against the consulting services
Executive is required to provide pursuant to Article II and (ii) Employer shall
reimburse Executive for expenses reasonably incurred in connection with such
cooperation.
SECTION 1.05. Press Release. Executive and Employer shall cooperate in
good faith to prepare a mutually acceptable press release or other public
announcement regarding Executive's retirement and Executive's agreement to
provide consulting services to Employer after the Effective Date; provided,
however, that nothing in this Section 1.05 shall prohibit or limit Employer's
ability to make public or private announcements, statements or other
communications as required to comply with
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
3
applicable law or the rules of any securities exchange or trading system on
which Employer securities are listed, traded or quoted.
ARTICLE II
Consulting
SECTION 2.01. Consulting Services. (a) Employer shall retain Executive,
and Executive shall serve, as a consultant to Employer during the period from
the Effective Date through the second anniversary of the Effective Date (the
"Consulting Term"). During the portion of the Consulting Term ending on the
first anniversary of the Effective Date (the "Initial Period"), Executive shall
provide an average of no more than 20 hours of consulting services per week, and
Executive acknowledges and agrees that Employer shall be entitled to determine
the number of hours of services for each week during such period, but in no
event shall Employer request more than 30 hours of services for any such week.
During the remaining portion of the Consulting Term (the "Remaining Period"),
Executive shall provide such hours of consulting services as may be requested by
Employer in its discretion, but in no event shall Employer request more than 20
hours of services for any week during such period. During the Consulting Term,
Executive shall assist and advise Employer and its employees with respect to
matters in which Executive was involved or had knowledge from his services as an
employee of Employer, including by facilitating Employer's efforts to train
Executive's successor as Chief Financial Officer. In rendering such consulting
services, Executive shall report to the Chief Executive Officer of Employer (the
"CEO") or to such other person as may be designated from time to time by the
CEO. Executive shall perform his services hereunder (i) primarily at the
corporate headquarters of Employer in Bristol, Tennessee and at Employer's
offices in Princeton, New Jersey, (ii) from time to time, at Employer's request,
at locations related to litigation or other legal matters involving or affecting
Employer or its affiliates and (iii) at such other locations as may be mutually
agreed from time to time by Employer and Executive. Executive acknowledges that
his duties and responsibilities hereunder will require him to travel on business
from time to time, and for such purposes Employer shall make its corporate
aircraft reasonably available to Executive. Any time spent by Executive in
connection with such travel shall be credited against the consulting services
Executive is required to provide pursuant to this Article II. Executive may
perform his consulting services hereunder by telephone or email in appropriate
circumstances reasonably acceptable to Employer. Executive shall serve Employer
in good faith and to the best of Executive's abilities in connection with the
performance of his consulting services hereunder.
(b) Notwithstanding anything in this Article II to the contrary, in the
event that Executive accepts or commences active, full-time employment with any
person or entity that is a direct competitor with Employer or its affiliates (as
determined by Employer in its reasonable discretion) during the Consulting Term,
Employer may, in its
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
4
reasonable discretion, elect to (i) continue the consulting arrangements
described in this Article II on the terms and conditions set forth herein or
(ii) terminate such arrangements (other than Employer's obligation under Section
2.02 to pay the retainer during the Initial Period) effective as of a date
specified by Employer. Following the effective date of any such termination, (i)
Executive shall have no obligation under this Article II to provide consulting
services to Employer and (ii) Employer shall have no obligation under this
Article II to pay any amount to Executive (other than any retainer earned but
unpaid under Section 2.02 and any business expense incurred but not reimbursed
under Section 2.03, in each case as of the effective date of such termination);
provided, however, that such termination shall have no effect on (A) Employer's
obligation under Section 2.02 to pay the retainer during the Initial Period or
(B) any other provision of this Agreement, including Executive's obligations
under Article I.
SECTION 2.02. Retainer. In consideration of all consulting services
rendered pursuant to this Article II, without regard to the number of hours of
consulting services requested by Employer, Employer shall pay Executive a cash
retainer at a monthly rate of (i) during the Initial Period, $[********]and (ii)
during the Remaining Period, $[*********], which in each case shall be paid in
advance on the first business day of the applicable month, commencing on the
Effective Date. Employer's obligation to pay such retainer during the Initial
Period shall not be affected by either (i) Employer's termination of the
consulting arrangements described in this Article II pursuant to Section 2.01(b)
or (ii) Executive's disability or death, in which case such retainer shall be
paid to Executive or to his personal representative.
SECTION 2.03. Expense Reimbursement. Employer shall reimburse Executive
for all necessary and reasonable "out-of-pocket" business expenses incurred by
Executive on behalf of Employer in the performance of his consulting duties
under this Article II, subject to the terms and conditions of the applicable
expense reimbursement policy of Employer as in effect from time to time.
SECTION 2.04. Independent Contractor Status. (a) Executive shall at all
times during the Consulting Term be an independent contractor with respect to
Employer, and there shall not be implied any relationship of employer-employee,
partnership, joint venture, principal-agent or any similar relationship by the
provisions of this Agreement. From and after the Effective Date, Executive shall
not be entitled to participate in any employee benefit plan, program or
arrangement or other benefits or conditions of employment available to the
employees of Employer and its affiliates, except as expressly provided in the
Severance Plan (as modified by Section 1.02(b)(ii)).
(b) From and after the Effective Date, Executive shall not have any
authority to act as an agent of Employer or its affiliates, and Executive shall
not represent to the contrary to any person. From and after the Effective Date,
under no circumstances shall Executive have or claim to have power of decision
in any activity on behalf of Employer or its affiliates, nor shall Executive
have the power or authority to obligate, bind or commit Employer or its
affiliates in any respect. From and after the Effective
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
5
Date, Executive shall not direct the work of any employee of Employer or its
affiliates, make any management decisions on behalf of Employer or its
affiliates or undertake to commit Employer or its affiliates to any course of
action in relation to third parties. Employer shall not exercise and shall not
have the authority to exercise such level of control over Executive as would
indicate or establish that a relationship of employer-employee exists between
Employer and Executive, except that Employer may specify the results it desires
Executive to achieve during the Consulting Term and may control and direct
Executive in that regard. Subject to the foregoing, Executive shall have full
and complete control over the manner and method of rendering consulting services
hereunder.
ARTICLE III
Miscellaneous
SECTION 3.01. Assignment. This Agreement is personal to Executive and
shall not be assignable by Executive other than by will or the laws of descent
and distribution, and any attempt by Executive to delegate his duties in
violation hereof shall be null and void. Employer may assign this Agreement and
its rights and obligations hereunder to any affiliate, or a successor in
interest to substantially all the business or assets, of Employer. Upon such
assignment, the rights and obligations of Employer hereunder shall become the
rights and obligations of such affiliate or successor, but Employer shall remain
liable for its obligations hereunder as a guarantor.
SECTION 3.02. Successors. This Agreement shall be binding upon and
shall inure to the benefit of the successors of Employer and the personal or
legal representatives, executors, administrators, successors, distributes,
devisees and legatees of Executive. Executive acknowledges and agrees that all
his covenants and obligations to Employer, as well as the rights of Employer
under this Agreement, shall run in favor of and will be enforceable by Employer,
its affiliates and their successors and assigns.
SECTION 3.03. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof, and all
oral or written agreements or representations, express or implied, with respect
to the subject matter hereof are set forth in this Agreement.
SECTION 3.04. Amendment. This Agreement shall not be amended or
modified except by written instrument signed by the parties hereto.
SECTION 3.05. Taxes and Withholding. Employer and its affiliates shall
be entitled to deduct or withhold from any amounts payable under this Agreement
all Federal, state, local, foreign or other taxes as are required to be deducted
or withheld pursuant to applicable law.
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
6
SECTION 3.06. Notice. All notices, requests, demands and other
communications required or permitted to be given under the terms of this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand, overnight courier or facsimile addressed to the other party
as set forth below:
If to Employer: King Pharmaceuticals, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Chief Executive Officer
If to Executive: Xxxxx X. Xxxxxxxx
_______________________
Xxxxxxx Xxxx, XX 00000
The parties may change the address to which notices under this Agreement shall
be sent by providing written notice to the other in the manner specified above.
SECTION 3.07. Governing Law; Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Tennessee without regard to the conflicts of law principles thereof.
Each party irrevocably and unconditionally submits to the exclusive jurisdiction
and venue of the Law Court for Xxxxxxxx County, Tennessee, Bristol Division, for
the purposes of any suit, action or other proceeding arising out of this
Agreement, each party agrees to commence any such action, suit or proceeding in
such court and each party irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this
Agreement in such court. Each party hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any litigation directly or indirectly arising out of, under or in connection
with this Agreement.
SECTION 3.08. Severability. To the extent that any provision of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal or
unenforceable in any jurisdiction, then such provision shall, as to such
jurisdiction, be modified or restricted to the extent necessary to make such
provision valid, binding and enforceable and such invalidity, illegality or
unenforceability shall not invalidate or render unenforceable such provision in
any other jurisdiction or invalidate or render unenforceable any other provision
hereof.
SECTION 3.09. No Waiver. The failure of a party to insist upon strict
adherence to any provision of this Agreement on any occasion shall not be
considered a waiver of such party's rights or deprive such party of the right
thereafter to insist upon strict adherence to such provision or any other
provision of this Agreement.
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
7
SECTION 3.10. Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 3.11. Construction. The headings in this Agreement are for
convenience only, are not a part of this Agreement and shall not affect the
construction of the provisions of this Agreement. As used in this Agreement, the
words "include" and "including", and variations thereof, shall not be deemed to
be terms of limitation but rather shall be deemed to be followed by the words
"without limitation".
SECTION 3.12. Enforcement. The enforcement by Executive of his rights
under this Agreement shall not constitute a breach of the Waiver.
SECTION 3.13. Indemnification. (a) (i) Employer shall indemnify, defend
and hold harmless Executive, who has been a director or officer of Employer or
any of its subsidiaries, against all losses, claims, damages, costs and expenses
(including reasonable attorneys' fees), liabilities, judgments and, subject to
the proviso of this sentence, settlement amounts that are paid or incurred in
connection with any claim, action, suit, proceeding or investigation (whether
civil, criminal, administrative or investigative and whether asserted or claimed
prior to, at or after the Effective Date) that is (A) based on, or arises out
of, the fact that Executive is or was a director or officer of Employer or any
of its subsidiaries, or (B) based on, or arising out of, or pertaining to this
Agreement or the transactions contemplated hereby, in each case to the fullest
extent a corporation is permitted under applicable law to indemnify its own
directors or officers, as the case may be; provided, however, that Employer
shall not be liable for any settlement of any claim effected without its written
consent (which consent shall not be unreasonably withheld). Without limiting the
foregoing, in the event that any such claim, action, suit, proceeding or
investigation is brought against Executive (whether arising prior to or after
the Effective Date), (w) Employer following the Effective Date will pay all
expenses of the disposition of any such claim, action, suit, proceeding or
investigation to Executive to the full extent permitted by applicable law
promptly after statements therefor are received and otherwise advance to
Executive upon request reimbursement of documented expenses reasonably incurred,
in either case to the extent not prohibited by the Tennessee Business
Corporation Act ("TBCA"); provided, however, that the person to whom expenses
are advanced provides any undertaking required by applicable law to repay such
advance if it is ultimately determined that such person is not entitled to
indemnification; (x) Executive shall retain counsel reasonably satisfactory to
Employer; (y) Employer following the Effective Date shall pay all reasonable
fees and expenses of such counsel for Executive (subject to the penultimate
sentence of this paragraph) and all costs and expenses of Executive in
connection with seeking and obtaining indemnification from Employer, in each
case promptly as statements therefor are received and (z) Employer following the
Effective Date shall use all commercially reasonable efforts to assist in the
defense of any such matter. In the event of any dispute as to whether
Executive's conduct complies with the standards set forth under the TBCA and
Employer's Charter or Employer's By-laws, a determination shall be made by
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
8
independent counsel mutually acceptable to Employer and Executive; provided,
however, that Employer following the Effective Date shall not be liable for any
settlement effected without its written consent (which consent shall not be
unreasonably withheld). Without limiting the foregoing, to the extent that
Executive is, by reason of the fact that Executive is or was a director or
officer of Employer or any of its subsidiaries, a witness in any claim, action,
suit, proceeding or investigation to which Executive is not a party, Executive
shall be indemnified and held harmless against all costs and expenses in
connection therewith.
(ii) Employer shall not enter into any settlement of any claim in
which Employer is jointly liable with Executive (or would be if joined in such
claim) unless such settlement provides for a full and final release of all
claims asserted against Executive.
(b) Except to the extent required by law, Employer following the
Effective Date shall not take any action so as to amend, modify, limit or repeal
the provisions for indemnification of Executive contained in the certificates or
articles of incorporation or by-laws (or other comparable charter documents) of
Employer and its subsidiaries following the Effective Date in such a manner as
would adversely affect the rights of Executive to be indemnified by such
corporations in respect of his serving in such capacities prior to the Effective
Date. Employer following the Effective Date shall honor all of its
indemnification obligations to Executive existing as of the Effective Date and
shall maintain in effect adequate directors' and officer's liability insurance
with respect to such indemnification obligations.
(c) The provisions of this Section 3.13 are intended to be for the
benefit of, and shall be enforceable by, Executive and his heirs and legal
representatives, and shall be in addition to, and shall not impair, any other
rights Executive may have under Employer's Charter, other organizational
documents of Employer or any of its subsidiaries, the TBCA or otherwise.
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
KING PHARMACEUTICALS, INC.,
by /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
XXXXX X. XXXXXXXX,
/s/ Xxxxx X. Xxxxxxxx
----------------------------
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
EXHIBIT 2
KING PHARMACEUTICALS, INC.
SEVERANCE PAY PLAN: TIER I
WAIVER, RELEASE AND NON-SOLICITATION,
NONCOMPETE AND NONDISCLOSURE AGREEMENT
1. In consideration for the Severance Pay and/or Severance Benefits to be
provided to me under the terms of the King Pharmaceuticals, Inc. Severance Pay
Plan: Tier I ("Plan"), and after having had a full, unhurried opportunity to
consult with an attorney of my choice with respect to this Agreement, including
its consent and final binding effect, I, on behalf of myself and my heirs,
executors, administrators, attorneys and assigns, hereby waive, release and
forever discharge King Pharmaceuticals, Inc. (hereinafter referred to as the
"Company") and its parent (if any), subsidiaries, divisions and Affiliates (as
defined in the Plan), whether direct or indirect, its and their joint ventures
and joint venturers (including its and their respective directors, officers,
employees, shareholders, partners and agents, past, present, and future), and
each of its and their respective successors and assigns (hereinafter
collectively referred to as "Releases"), from any and all known or unknown
demands, damages, actions, causes of action, claims, losses, or liabilities of
any kind which have or could be asserted against the Releasees arising out of or
related to my employment with and/or the Separation of my employment with the
Company and/or any of the other Releasees and/or any other occurrence from the
beginning of time up to and including the date of this Agreement, including but
not limited to:
(a) All claims, actions, causes of action or liabilities arising
under Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act, as amended, the Employee Retirement
Income Security Act, as amended, the Rehabilitation Act of 1973, as
amended, the Americans with Disabilities Act, as amended, the Family and
Medical Leave Act, as amended, and/or any other federal, state, municipal,
or local employment discrimination statutes (including, but not limited
to, claims based on age, sex, attainment of benefit plan rights, race,
religion, national origin, marital status, sexual orientation, ancestry,
harassment, parental status, handicap, disability, retaliation, and
veteran status); and/or
(b) All claims, actions, causes of action or liabilities arising
under any other federal, state, municipal, or local statute, law,
ordinance or regulation; and/or
(c) Any and all other claims whatsoever including, but not limited
to, claims for severance pay, claims based upon breach of contract,
wrongful Separation, retaliatory discharge, defamation, intentional
infliction of emotional distress, tort, personal injury, invasion of
privacy, violation of public policy, negligence and/or any other common
law, statutory or other claim whatsoever arising out of or relating to my
employment with and/or the Separation of my employment with the Company
and/or any of the other Releasees.
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
2. I also agree never to xxx any of the Releasees or become party to a
lawsuit on the basis of any claim of any type whatsoever arising out of or
related to my employment with and/or the Separation of my employment with the
Company and/or any of the other Releasees.
I further agree not to make any public statement or statements, to the
press or otherwise, concerning the Company's Board of Directors, management,
business objectives, status of its securities, its management practices,
products, or other sensitive information, without first receiving the written
consent of the Company's Executive Vice President of Human Resources and its
Chief Executive Officer, and I will not take any action which would cause the
Company, or its employees or agents, embarrassment or humiliation or otherwise
cause or contribute to the Company, or any such person, being held in disrepute
by the general public or the Company's employees, clients, or customers.
3. I further acknowledge and agree in the event that I breach the
provisions of paragraph 2 above and/or the Non-Solicitation, Non-Compete or
Nondisclosure provisions of the Plan, (a) the Company shall not be obligated to
continue payment of the Severance Pay and the availability of Severance Benefits
to me, (b) I shall be obligated to repay to the Company upon written demand
ninety percent (90%) of the amount of Severance Pay and cost of the Severance
Benefits paid or provided to me, plus simple interest at the rate of ten percent
(10%) per annum from the date of payment of such pay and/or benefits, and (c) I
shall be obligated to pay the Company its costs and expenses in enforcing the
provisions of this Agreement and the Plan (including court costs, expenses and
reasonable legal fees), and the foregoing shall not affect the validity of this
Agreement and shall not be deemed a penalty or a forfeiture. In the event I
breach the notice requirements of Section 4(b) of the Plan regarding eligibility
for alternate welfare plan coverage after a Qualifying Separation, I understand
and agree that the provisions of the prior sentence shall apply, but solely with
respect to the Severance Benefits for which such required notice was not timely
provided. Executive specifically acknowledges that the restrictions,
prohibitions, and other provisions of this paragraph and the Non-Solicitation,
Non-Compete and Nondisclosure restrictions of the Plan are reasonable, fair,
and equitable in scope, terms, and duration, and are a material inducement to
the Company to provide the benefits described in the Plan. Executive agrees that
the obligations in this Agreement are necessary in order to protect the
Company's legitimate business interests; its trade secrets and confidential
information; its relationships with its customers and distributors; its
investment in its employees; and its goodwill, in light of the nature and extent
of the business conducted by the Company. Executive further agrees that upon any
breach or threatened breach of these obligations, the Company shall be entitled
to injunctive relief, both temporary and permanent, without the necessity of
posting a bond, as well as, and in addition to, all other available remedies,
including such damages as may be permitted by law, all of which shall be
cumulative and not exclusive.
4. I further waive my right to any monetary recovery should any federal,
state, or local administrative agency pursue any claims on my behalf arising out
of or related to my employment with and/or separation from employment with the
Company and/or any of the other Releasees.
5. I further waive, release, and discharge Releasees from any
reinstatement rights which I have or could have and I acknowledge that I have
not suffered any on-the-job injury for
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
which I have not already filed a claim; and I hereby unconditionally agree that
I shall not now or at any time in the future, either individually or through
others, as an independent contractor or otherwise in any capacity, directly or
indirectly, apply for or otherwise seek employment or any other arrangement with
the Company and/or any of the other Releasees to provide services to or on
behalf of any of the same, without the prior written consent of the Executive
Vice President of Human Resources of the Company.
6. I acknowledge that I have been given at least forty-five (45) days to
consider this Waiver and Release Agreement thoroughly and I was advised to
consult with my personal attorney, if desired, before signing below.
7. I understand that I may revoke this Agreement within seven (7) days
after its signing and that any revocation must be made in writing and submitted
within such seven day period to the Plan Administrator. I further understand
that if I revoke this Agreement, I shall not receive Severance Pay or Severance
Benefits.
8. I FURTHER UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
9. I understand that nothing in this Agreement shall affect any obligation
which the Company may have to indemnify me pursuant to Section 9 of the
Company's charter or Article VII of the Company's bylaws.
10. I acknowledge and agree that this Agreement is given in exchange for
consideration in addition to anything of value to which I am already entitled.
11. I acknowledge and agree that if any provision of this Agreement is
found, held or deemed by a court of competent jurisdiction to be void, unlawful
or unenforceable under any applicable statute or controlling law, the remainder
of this Agreement shall continue in full force and effect. If any portion of
this Agreement or the Plan relating to Non-Solicitation, Non-Compete or
Nondisclosure is held by a court of competent jurisdiction to be unreasonable,
unenforceable, arbitrary, or against public policy, then such portion shall be
considered divisible as to time, geographical area, and prohibited activities,
and the remaining provisions shall remain in effect, and the parties agree to
reasonable modification, including but not limited to modifications as to time,
geographical area, and prohibited activities, as the court shall decide in order
to reflect the intent of the parties.
12. This Agreement is deemed made and entered into in the State of
Tennessee, and in all respects shall be interpreted, enforced and governed under
the internal laws of the State of Tennessee, to the extent not preempted by
applicable federal law.
Jurisdiction and venue over any dispute under this Agreement shall lie
solely in the Law Court for Xxxxxxxx County, Tennessee, Bristol Division.
13. I further acknowledge and agree that I have carefully read and fully
understand all of the provisions of this Agreement and that I voluntarily and
knowingly enter into this
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
Agreement by signing below. No modification of this Agreement shall be effective
unless made in writing and signed by both Executive and the Company.
14. ACKNOWLEDGMENT OF COMPLIANCE
Because this Agreement includes a release and waiver as to claims under
the AGE DISCRIMINATION IN EMPLOYMENT ACT ("ADEA"), your signature below
acknowledges that it complies with the Older Worker Benefit Protection Act
("OWBPA") of 1990 and further acknowledges that you confirm, understand, and
agree to the terms and conditions of this Agreement; that these terms are
written in lay person terms, and that you have been fully advised of your right
to seek the advice and assistance of consultants, including an attorney, as well
as tax advisors, to review this agreement.
It also acknowledges that you do not waive any rights or claims under the
ADEA that may arise after the date this Agreement is signed by you, and
specifically, that under this Agreement, you are receiving consideration beyond
anything of value to which you are already entitled. It is understood by you
that you have been advised to consult with an attorney of your choice before
signing. You also understand that you have up to forty-five (45) full days to
consider whether to sign this release and agreement. By signing this release on
the date shown below, you knowingly and voluntarily elect to forego waiting the
portion then remaining of the forty-five (45) full days to consider whether to
sign this release and agreement.
15. RIGHT OF REVOCATION
Your signature also acknowledges that, in compliance with the OWBPA
condition above, you have been fully advised by the Company of your right to
revoke and nullify this release and agreement, which right must be exercised, if
at all, within seven (7) days of the date of your signature. Any revocation of
this Agreement must be in writing, addressed to the Company, to the attention of
the Plan Administrator of the King Pharmaceuticals, Inc. Severance Pay Plan:
Tier I, and the Company must be notified within the foregoing seven (7) day
period. This Agreement will not become effective or enforceable until the
expiration of the 7-day period.
16. BINDING EFFECT
Upon signing this agreement, it will become effective and binding upon you
and the Company and upon the respective successors, assigns, heirs and personal
representatives as is discussed in paragraph 1 above.
Xxxxx X. Xxxxxxxx
-------------------------------------------------------
Name of Eligible Executive -- Please Print
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------------
(Signature of Eligible Executive)
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
5/12/05
------------------------------------
(Date)
PLEASE RETURN TO:
Plan Administrator
King Pharmaceuticals, Inc.
Severance Pay Plan: Tier I
Portions of this exhibit were omitted and have been filed separately with the
Securities and Exchange Commission pursuant to an application requesting
confidential treatment; [*] denotes omissions.
