Employment Agreement - ICN Pharmaceuticals Inc. and Dr. Devron Averett
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of the 14th day of June, 1996 by and between
ICN Pharmaceuticals, Inc. (the "Company"), and Dr. Devron Averett, an individual
(the "Executive") (hereinafter collectively referred to as "the parties").
WHEREAS, the Executive has heretofore been employed by the Company as its
Senior Vice President - Research and Development and is experienced in all
phases of the business of the Company and the Company desires to retain the
services of the Executive on the terms set forth herein;
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the threat of an unsolicited takeover of the Company may occur which can
result in significant distractions of its management personnel because of the
uncertainties inherent in such a situation;
WHEREAS, the Board of the Company has determined that it is essential and
in the best interest of the Company and its stockholders to retain the services
of its key management personnel in the event of a threat of a change in control
of the Company and to ensure their continued dedication and efforts in such
event without undue concern for their personal financial and employment
security; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Company, particularly in the event of a threat of a change in control of the
Company, the Company desires by this writing to set forth the continued
employment relationship of the Executive with the Company.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. TERM. The initial term of employment under this Agreement shall be for
the period commencing on the date hereof, and ending June 30, 1997; PROVIDED,
HOWEVER, that the term of this Agreement shall be automatically extended for one
(1) year on June 30, 1997, and on each June 30 thereafter unless either the
Company or the Executive shall have given written notice to the other at least
ninety (90) days prior thereto that the term of this Agreement shall not be so
extended; and PROVIDED, FURTHER, that notwithstanding any such notice by the
Company not to extend, the term of this Agreement shall not expire prior to the
expiration of the third anniversary of a Change in Control (as hereinafter
defined). Notwithstanding the foregoing, in no event shall the term of this
Agreement extend beyond the first day of the month following the month in which
the Executive attains age 65.
2. EMPLOYMENT. (a) The Executive shall be employed as the Senior Vice
President Research and Development of the Company or such other senior executive
capacity as may be mutually agreed to in writing by the parties. The Executive
shall perform the duties, undertake the responsibilities and exercise the
authority customarily performed, undertaken and exercised by persons situated in
a similar executive capacity. He shall also promote, by entertainment or
otherwise, the business of the Company.
(b) Excluding periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote reasonable attention
and time during usual business hours to the business and affairs of the
Company to the extent necessary to discharge the responsibilities assigned
to the Executive hereunder. The Executive may (i) serve on corporate, civil
or charitable boards of committees, (ii) manage personal investments and
(iii) deliver lectures and teach at education institutions, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities hereunder.
3. BASE SALARY. The Company agrees to pay or cause to be paid to the
Executive during the term of this Agreement a base salary at the rate of
$210,000.00 per annum or such larger amount as the Board may from time to time
determine (hereinafter referred to as the "Base Salary"). Such Base Salary shall
be payable in accordance with the Company's customary practices applicable to
its executives. Such rate of salary, or increased rate of salary, if any, as the
case may be, shall be reviewed at least annually by the respective Board and may
be further increased (but not decreased) in such amounts as the respective Board
in its discretion may decide.
4. EMPLOYEE BENEFITS. The Executive shall be entitled to participate in all
employee benefit plans, practices and programs maintained by the Company or the
Subsidiary and made available to employees generally including, without
limitation all pension, retirement, profit sharing, savings, medical,
hospitalization, disability, dental, life or travel accident insurance benefit
plans. The Executive's participation in such plans, practices and programs shall
be on the same basis and terms as are applicable to employees of the Company
generally.
5. EXECUTIVE BENEFITS. The Executive shall be entitled to participate in
all executive benefit or incentive compensation plans now maintained or
hereafter established by the Company for the purpose of providing compensation
and/or benefits to executives of the Company including, but not limited to, the
Company's 401(k) and Deferred Compensation Plans and any supplement retirement,
salary continuation, stock option, deferred compensation, supplemental medical
or life insurance or other bonus or incentive compensation plans. Unless
otherwise provided herein, the Executive's participation in such plans shall be
on the same basis and terms as other similarly situated executives of the
Company, but in no event on a basis less favorable in terms of benefit levels or
reward opportunities applicable to the Executive as in effect on the date
hereof. No additional compensation provided under any of such plans shall be
deemed to modify or otherwise affect the terms of this Agreement or any of the
Executive's entitlements hereunder.
6. OTHER BENEFITS.
(a) FRINGE BENEFITS AND PERQUISITES. The Executive shall be entitled
to all fringe benefits and perquisites (e.g. Company cars, club dues,
physical examinations, financial planning and tax preparation services)
generally made available by the Company or the Subsidiary to its
executives.
(b) EXPENSES. The Executive shall be entitled to receive prompt
reimbursement of all expenses reasonably incurred by him in connection with
the performance of his duties hereunder or for promoting, pursuing or
otherwise furthering the business or interests of the Company.
(c) OFFICE AND FACILITIES. The Executive shall be provided with an
appropriate office in Costa Mesa, California, or such other place as may be
mutually agreed and with such secretarial and other support facilities as
are commensurate with the Executive's status with the Company and adequate
for the performance of his duties hereunder.
7. VACATION AND SICK LEAVE. At such reasonable times as the Board shall in
its discretion permit, the Executive shall be entitled, without loss of pay, to
absent himself voluntarily from the performance of his employment under this
Agreement, provided that:
(a) The Executive shall be entitled to annual vacation in accordance
with the policies as periodically established by the Board for similarly
situated executives of the Company, which shall in no event be less than
four weeks per year.
(b) In addition to the aforesaid paid vacations, the Executive shall
be entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment for such additional periods of time and for
such valid and legitimate reasons as the Board in its discretion may
determine. Further, the Board shall be entitled to grant to the Executive a
leave or leaves of absence with or without pay at such time or times and
upon such terms and conditions as the Board in its discretion may
determine.
(c) The Executive shall be entitled to sick leave (without loss of
pay) in accordance with the Company's policies as in effect from time to
time.
8. TERMINATION. The executive's employment hereunder may be terminated
under the following circumstances.
(a) DISABILITY. The Company may terminate the Executive's employment
after having established the Executive's Disability. For purposes of this
Agreement, "Disability" means a physical or mental infirmity which impairs
the Executive's ability to substantially perform his duties under this
Agreement which continues for a period of at least one hundred eighty (180)
consecutive days. The Executive shall be entitled to the compensation and
benefits provided for under this Agreement for any period during the term
of this Agreement and prior to the establishment of the Executive's
Disability during which the Executive is unable to work due to a physical
or mental infirmity. Notwithstanding anything contained in this Agreement
to the contrary, until the Termination Date specified in a Notice of
Termination (as each term is hereinafter defined) relating to the
Executive's Disability, the Executive shall be entitled to return to his
position with the Company or the Subsidiary as set forth in this Agreement
in which event no Disability of the Executive will be deemed to have
occurred.
(b) CAUSE. The Company or the Subsidiary may terminate the Executive's
employment for "Cause". A termination for Cause is a termination evidenced
by a resolution adopted in good faith by two-thirds (2/3) of the Board that
the Executive (i) willfully and continually failed to substantially perform
his duties with the Company (other than a failure resulting from the
Executive's incapacity due to physical or mental illness) which failure
continued for a period of at least thirty (30) days after a written notice
of demand for substantial performance has been delivered to the Executive
specifying the manner in which the Executive has failed to substantially
perform, or (ii) willfully engaged in conduct which is demonstrably and
materially injurious to the Company, monetarily or otherwise; PROVIDED,
HOWEVER that no termination of the Executive's employment shall be for
Cause as set forth in clause (ii) above until (x) there shall have been
delivered to the Executive a copy of a written notice setting forth that
the Executive was guilty of the conduct set forth in clause (ii) and
specifying the particulars thereof in detail, and (y) the Executive shall
have been provided an opportunity to be heard by the Board (with the
assistance of the Executive's counsel if the Executive so desires). No act,
nor failure to act, on the Executive's part, shall be considered "willful"
unless he has acted or failed to act, with an absence of good faith and
without a reasonable belief that his action or failure to act was in the
best interest of the Company. Notwithstanding anything contained in this
Agreement to the contrary, no failure to perform by the Executive after
Notice of Termination is given by the Executive shall constitute cause for
purposes of this Agreement.
(c) (1) GOOD REASON. The Executive may terminate his employment for
"Good Reason". For purposes of this Agreement, Good Reason shall mean the
occurrence after a Change in Control (as hereinafter defined in this
Section 8(e)) of any of the Events or conditions described in Subsections
(i) through (viii) hereof:
(i) a change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which, in
the Executive's reasonable judgment, does not represent a
promotion from his status, title, position or responsibilities as
in effect immediately prior thereto; the assignment to the
Executive of any duties or responsibilities which, in the
Executive's reasonable judgment, are inconsistent with such
status, title, position or responsibilities; or any removal of
the Executive from or failure to reappoint or reelect him to any
of such positions, except in connection with the termination of
his employment for Disability, Cause, as a result of his death or
by the Executive other than for Good Reason;
(ii) a reduction in the Executive's Base Salary or a failure
by the Company or the Subsidiary to increase the Executive's Base
Salary within any twelve (12) month period by the average
percentage increase during such period of the base salaries of,
similarly situated executives.
(iii) the Company's or the Subsidiary requiring the
Executive to be based at any place outside a 30-mile radius from
Costa Mesa, California, except for reasonably required travel on
the Company's business which is not materially greater than such
travel requirements prior to the Change in Control;
(iv) the failure by the Company or the Subsidiary to (A)
continue in effect any material compensation or benefit plan in
which the Executive was participating at the time of the Change
in Control, including, but not limited to, the Company's Deferred
Compensation Plan, 401(k) Plan, or (B) provide the Executive with
compensation and benefits at least equal (in terms of benefit
levels and/or reward opportunities) to those provided for under
each employee benefit plan, program and practice as in effect
immediately prior to the Change in Control (or as in effect
following the Change in Control, if greater).
(v) the insolvency or the filing (by any party, including
the Company) of a petition for bankruptcy, of the Company;
(vi) any material breach by the Company of any provision of
this Agreement;
(vii) any purported termination of the Executive's
employment for Cause by the Company which does not comply with
the terms of Section 8 of this Agreement; and
(viii) the failure of the Company to obtain an agreement,
satisfactory to the Executive, from any successor or assign of
the Company to assume and agree to perform this Agreement, as
contemplated in Section 11 hereof.
(2) Any event or condition described in this Section 8(c)(i)
through (viii) which occurs prior to a Change in Control but which (i)
was at the request of a third party who has taken steps reasonably
calculated to effect a Change in Control, or (ii) otherwise arose in
connection with a Change in Control, shall constitute Good Reason for
purposes of this Agreement notwithstanding that it occurred prior to a
Change in Control.
(3) The Executive's right to terminate his employment pursuant to
this Section 8(c) shall not be affected by his incapacity due to
physical or mental illness.
(d) VOLUNTARY TERMINATION. The Executive may voluntarily terminate his
employment hereunder at any time. If the Executive voluntarily terminates
his employment for any reason or without reason during the 60-day period
which commences on the date which zis six (6) months following the date of
a Change in Control, it shall be referred to as a "Limited Period
Termination."
(e) For purposes of this Agreement, a "Change in Control" shall mean
any of the following events:
(1) The acquisition (other than from the Company) by any person
(as such term is defined in Section 13(c) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act")) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the 1934
Act) of twenty percent (20%) or more of the combined voting power of
the Company's then outstanding voting securities; or
(2) The individuals who, as of the date hereof, are members of
the Board of the Company (the "Incumbent Board"), cease for any reason
to constitute at least two-thirds (2/3) of the Board, unless the
election, or nomination for election by the Company's stockholders, of
any new director was approved by a vote of at least two-thirds (2/3)
of the Incumbent Board, and such new director shall, for purposes of
this Agreement, be considered as a member of the Incumbent Board; or
(3) Approval by stockholders of the Company of (i) a merger or
consolidation involving the Company if the stockholders of the
Company, immediately before such merger or consolidation, do not, as a
result of such merger or consolidation, own, directly or indirectly,
more than eighty percent (80%) of the combined voting power of the
then outstanding voting securities of the corporation resulting from
such merger or consolidation in substantially the same proportion as
their ownership of the combined voting power of the voting securities
of the Company outstanding immediately before such merger or
consolidation or (ii) a complete liquidation or dissolution of the
Company or an agreement for the sale or other disposition of all or
substantially all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur pursuant to Section 8(e)(1), solely because twenty percent (20%) or more
of the combined voting power of the Company's then outstanding securities is
acquired by (i) a trustee or other fiduciary holding securities under one or
more employee benefit plans maintained by the Company or (ii) any corporation
which, immediately prior to such acquisition, is owned directly or indirectly by
the stockholders of the Company in the same proportion as their ownership of
stock in the Company immediately prior to such acquisition.
(f) NOTICE OF TERMINATION. Any purported termination by the Company or
by the Executive shall be communicated by written Notice of Termination to
the other. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which indicates the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. For purposes of
this Agreement, no such purported termination of employment shall be
effective without such Notice of Termination.
(g) TERMINATION DATE, ETC. "Termination Date" shall mean in the case
of the Executive's death, his date of death, or in all other cases, the
date specified in the Notice of Termination subject to the following:
(1) If the Executive's employment is terminated by the
Company for Cause or due to Disability, the date specified in the
Notice of Termination shall be at least thirty (30) days from the
date the Notice of Termination is given to the Executive,
provided that in the case of Disability the Executive shall not
have returned to the full-time performance of his duties during
such period of at least thirty (30) days; and
(2) If the Executive's employment is terminated for Good
Reason or is a Limited Period Termination, the date specified in
the Notice of Termination shall not be more than sixty (60) days
from the date the Notice of Termination is given to the Company.
9. COMPENSATION UPON TERMINATION. Upon termination of the Executive's
employment during the term of this Agreement (including any extensions thereof),
the Executive shall be entitled to the following benefits:
(a) If the Executive's employment is terminated by the Company for
Cause or Disability or by the Executive (other than for Good Reason or a
Limited Period Termination), or by reason of the Executive's death, the
Company shall pay the Executive all amounts earned or accrued hereunder
through the Termination Date but not paid as of the Termination Date,
including (i) Base Salary, (ii) reimbursement for any and all monies
advanced or expenses incurred in connection with the Executive's employment
for reasonable and necessary expenses incurred by the Executive on behalf
of the Company or the Subsidiary for the period ending on the Termination
Date, (iii) vacation pay, (iv) any bonuses or incentive compensation and
(v) any previous compensation which the Executive has previously deferred
(including any interest earned or credited thereon) (collectively, "Accrued
Compensation"). In addition to the foregoing, if the Executive's employment
is terminated by the Company for Disability or by reason of the Executive's
death, the Company shall pay to the Executive or his beneficiaries an
amount equal to the bonus or incentive award that the Executive would have
been entitled to receive in respect of the fiscal year in which the
Executive's Termination Date occurs had he continued in employment until
the end of such fiscal year, calculated as if all performance targets and
goals (if applicable) had been fully met by the Company and by the
Executive, as applicable, for such year, multiplied by a fraction the
numerator of which is the number of days in such fiscal year through the
Termination Date and the denominator of which is 365 (a "Pro Rata Bonus").
Executive's entitlement to any other compensation or benefits shall be
determined in accordance with the Company's employee benefit plans and
other applicable programs and practices then in effect.
(b) If the Executive's employment by the Company shall be terminated
(1) by the Company other than for Cause, death or Disability, (2) by the
Executive for Good Reason, or (3) by the Executive as a Limited Period
Termination, then the Executive shall be entitled to the benefits provided
below:
(i) the Company shall pay the Executive all Accrued Compensation
and a Pro Rata Bonus;
(ii) The Company shall pay he Executive as severance pay and in
lieu of any further salary for periods subsequent to the Termination
Date, in a single payment an amount in cash equal to three (3) times
the sum of (A) the Executive's Base Salary at the highest rate in
effect at any time within the ninety (90) day period ending on the
date the Notice of Termination is given (or if the Executive's
employment is terminated after a Change in Control, the Executive's
Base Salary immediately prior to the Change in Control, if greater)
and (B) the "Bonus Amount" (as defined below). Notwithstanding the
foregoing, the amount to be paid under this Subsection (ii) shall be
multiplied by a fraction (which in no event shall be greater than one
(1)) the numerator of which shall be the number of months (for this
purpose any partial month shall be considered as a whole month)
remaining until the Executive's 65th birthday and the denominator of
which shall be thirty-six (36). The term "Bonus Amount" shall mean (x)
the greatest amount of any cash bonus or incentive compensation
received by the Executive during the three fiscal years immediately
preceding the Termination Date or (y) if no such bonus was received by
the Executive during any of such three years, then an amount equal to
the Executive's maximum bonus which could be awarded for the fiscal
year in which the Termination Date occurs had he continued in
employment until the end of such fiscal year, assuming all performance
targets and goals (if applicable) had been fully met by the Company
and by the Executive, as applicable, for such year;
(iii) for a number of months equal to the lesser of (A)
thirty-six (36) or (B) the number of months remaining until the
Executive's 65th birthday, the Company shall at its expense continue
on behalf of the Executive and his dependents and beneficiaries the
life insurance, disability, medical, dental and hospitalization
benefits which were being provided to the Executive at the time Notice
of Termination is given (or, if the Executive is terminated following
a Change in Control, the benefits provided to the Executive at the
time of the Change in Control, if greater). the benefits provided in
this Section 9(b)(iii) shall be no less favorable to the Executive, in
terms of amounts and deductibles and costs to him, than the coverage
provided the Executive under the plans providing such benefits at the
time Notice of Termination is given (or, if the Executive is
terminated following a Change in Control, at the time of the Change in
Control if more favorable to the Executive). The Company's obligation
hereunder with respect to the foregoing benefits shall be limited to
the extent that the Executive obtains any such benefits pursuant to a
subsequent employer's benefit plans, in which case the Company may
reduce the coverage of any benefits it is required to provide the
Executive hereunder as long as the aggregate coverage of the combined
benefit plans is no less favorable to the Executive, in terms of
amounts and deductibles and costs to him, than the coverage required
to be provided hereunder. This Subsection (iii) shall not be
interpreted so as to limit any benefits to which the Executive or his
dependents may be entitled under any of the Company's employee benefit
plans, programs or practices following the Executive's termination of
employment, including without limitation, retiree medical and life
insurance benefits;
(iv) the Company shall pay in a single payment an amount in cash
equal to the excess of (A) the actuarial equivalent of the aggregate
retirement benefit the Executive would have been entitled to receive
under the Company's supplemental and excess retirement plans had (x)
the Executive remained employed by the Company for an additional three
(3) complete years of credited service (or until his 65th birthday,
(if earlier)), (y) his annual compensation during such period been
equal to his Base Salary (at the rate used for purposes of Section
9(b)(ii)) and the Bonus Amount, and (z) he been fully (100%) vested in
his benefit under each such retirement plan, over (B) the actuarial
equivalent of the aggregate retirement benefit the Executive is
actually entitled to receive under such retirement plans. For purposes
of this Subsection (iv), "actuarial equivalent" shall be determined in
accordance with the actuarial assumptions used for the calculation of
benefits under any Retirement Plan as applied prior to the Termination
Date in accordance with such plan's past practices (but shall in any
event take into account; the value of any subsidized early retirement
benefit); and
(v) all restrictions on any outstanding awards granted by the
Company or any other subsidiaries of the Company (including restricted
stock awards) granted to the Executive shall lapse and such awards
shall become fully (100%) vested immediately, and all stock options
and stock appreciation rights granted to the Executive shall become
fully (100%) vested and shall become immediately exercisable.
(c) The amounts provided for in Sections 9(a) and 9(b)(i), (ii) and
(iv) shall be paid within five (5) days after the Executive's Termination
Date.
(d) The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of
any compensation or benefits provided to the Executive in any subsequent
employment.
10. UNAUTHORIZED DISCLOSURE. The Executive shall not make any Unauthorized
Disclosure. For purposes of this Agreement, "Unauthorized Disclosure" shall mean
disclosure by the Executive without the consent of the Board to any person,
other than an employee of the Company or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by the
Executive of his duties as an executive of the Company or as may be legally
required, of any confidential information obtained by the Executive while in the
employ of the Company (including, but not limited to, any confidential
information with respect to any of the Company's customers or methods of
distribution) the disclosure of which he knows or has reason to believe will be
materially injurious to the Company; PROVIDED, HOWEVER, that such term shall not
include the use or disclosure by the Executive, without consent, of any
information known generally to the public (other than as a result of disclosure
by him in violation of this Section 10) or any information not otherwise
considered confidential by a reasonable person engaged in the same business as
that conducted by the Company.
11. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its successors and assigns and the Company shall
require any successor or assign to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession or assignment had
taken place. The term "the Company" as used herein shall include such
successors and assigns. The term "successors and assigns" as used herein
shall mean a corporation or other entity acquiring all or substantially all
the assets and business of the Company (including this Agreement) whether
by operation of law or otherwise.
(b) Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal personal representative.
12. FEES AND EXPENSES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Executive as they become due as a result of (i) the Executive's termination of
employment (including all such fees and expenses, if any, incurred in contesting
or disputing any such termination of employment), (ii) the Executive's hearing
before the Board as contemplated in Section 8(b) of this Agreement, or (iii) the
Executive's seeking to obtain or enforce any right or benefit provided by this
Agreement or by any other plan or arrangement maintained by the Company under
which the Executive is or may be entitled to receive benefits.
13. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address shall be effective only upon receipt.
14. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company or any of its
subsidiaries and for which the Executive may qualify, nor shall anything herein
limit or reduce such rights as the executive may have under any other agreements
with the Company. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any of
its subsidiaries shall be payable in accordance with such plan or program,
except as explicitly modified by this Agreement.
15. SETTLEMENT OF CLAIMS. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others.
16. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreement or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California without giving
effect to the conflict of law principles thereof.
18. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Executive has executed this Agreement as of
the day and year first above written.
ICN Pharmaceuticals, Inc.
ATTEST: By: /s/ Milan Panic
------------------------------
Title: President and Chief
/s/ D.C. Watt Executive Officer
--------------------------
Secretary
The "Executive"
By: /s/ Devron Averett
----------------------------
Dr. Devron Averett