Executive Employment Agreement - ICN Pharmaceuticals Inc. and Bary G. Bailey
BARY G. BAILEY
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of the 22nd day of
October, 2002, by and between ICN Pharmaceuticals, Inc. (the "Company") and Bary
G. Bailey, an individual (the "Executive") (hereinafter collectively referred to
as "the parties").
PREAMBLE
The Company desires to employ Executive and Executive desires to be
employed by the Company, all pursuant to the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. Term. The initial term of this Agreement shall be for the period
commencing on the "Start Date" (as defined below), and ending on the second
anniversary of the Start Date (the "Initial Term"), provided, however, that the
term of this Agreement shall be automatically extended for successive one (1)
year periods thereafter (each, a "Renewal Period") unless either the Company or
Executive shall have given written notice to the other party at least ninety
(90) days prior to the end of the Term of Agreement (as hereinafter defined),
that the Term of Agreement shall not be so extended. The Initial Term together
with each Renewal Period, if any, are collectively referred to herein as the
"Term of Agreement". For purposes of this Agreement, the term "Start Date" shall
mean the date Executive reports for full-time employment at the principal
executive offices of the Company which date shall not be later than December 9,
2002. As a condition precedent to the effectiveness of this Agreement, Executive
must report for work on the Start Date by the deadline contemplated in the
previous sentence. If requested by the Company, Executive shall confirm in
writing on the Start Date that Executive has ceased employment with his current
employer. Executive agrees to submit his written resignation to Executive's
current employer within one business day of the date of this Agreement.
Executive's employment hereunder shall be coterminous with the Term of
Agreement, unless sooner terminated as provided in Section 5 hereof.
2. Employment. During the term of Executive's employment under this
Agreement:
(a) Executive shall be employed as Executive Vice President and
Chief Financial Officer of the Company. 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.
(b) Executive shall report directly to the Company's Chief
Executive Officer.
(c) Excluding periods of vacation and sick leave to which
Executive is entitled, 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
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assigned to Executive hereunder. Executive may (i) serve on corporate, civil or
charitable boards or committees, (ii) manage personal investments and (iii)
deliver lectures and teach at educational institutions, so long as such
activities do not significantly interfere with the performance of Executive's
responsibilities hereunder.
3. Compensation. During the term of his employment under this
Agreement:
(a) Base Salary. The Company agrees to pay or cause to be paid to
Executive during the Term of Agreement a base salary at the rate of $400,000 per
annum or such increased 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 Base Salary shall be reviewed at least annually by the Board
and may be further increased (but not decreased) in such amounts as the Board in
its discretion may decide.
(b) Signing Bonus. The Company agrees to pay or cause to be paid
to Executive a one-time signing bonus of $400,000 (the "Signing Bonus") payable
as soon as administratively practicable following the Start Date, but in no
event later than the first pay period following the commencement of full-time
employment hereunder. Notwithstanding the foregoing, if Executive's employment
is terminated by the Company for Cause (as defined in Section 5(c)) or by
Executive without Good Reason (as defined in Section 5(e)) within one year
following the Start Date, Executive shall immediately repay to the Company that
portion of the Signing Bonus obtained by multiplying $400,000 by a fraction (A)
the numerator of which is the number of days remaining in such year from the
termination date and (B) the denominator of which is 365.
(c) Performance Bonus. For each fiscal year of the Company ending
during the Term of Agreement, beginning with the 2003 fiscal year, Executive
shall be eligible to receive a target cash bonus of 80% of the Base Salary with
the opportunity to receive a maximum cash bonus of 160% of the Base Salary,
payable in accordance with the Company's customary practices applicable to
bonuses paid to its executives. Executive shall receive a minimum cash bonus
equal to 80% of the Base Salary in respect of the 2003 fiscal year (the
"Guaranteed Bonus"). Any cash bonus in excess of the Guaranteed Bonus will be
based on performance by Executive and the Company and shall be within the sole
discretion of the Board.
(d) Stock Options/Restricted Shares.
(i) Initial Grant. On or prior to the date hereof, the
Company shall grant to Executive an option (the "Initial Stock Option") to
purchase four hundred thousand (400,000) shares of common stock, par value $.01
per share, of the Company (the "Common Stock") pursuant to the terms of the
Company's 1998 stock option plan (the "Plan"); provided, that a condition to the
effectiveness of the grant of such option shall be that Executive has given
notice of termination of his employment to his current employer within one day
of the date of this Agreement. The Initial Stock Option shall become exercisable
with respect to 25% of such shares on each anniversary of the Start Date, and
the exercise price per share shall be equal to the fair market value of the
Common Stock, as determined under the Plan, on the date of grant.
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(ii) Option Agreement. The Initial Stock Option shall be
evidenced by agreements in customary form for grants of stock options under the
Plan to executive officers of the Company, consistent with the terms and
conditions of this Agreement.
4. Other Benefits. During the term of Executive's employment under this
Agreement:
(a) Employee Benefits. Executive shall be entitled to participate
in all employee benefit plans, practices and programs maintained by the Company
and made available to employees generally including, without limitation, all
pension, retirement, profit sharing, savings, medical, hospitalization,
disability, dental, life or travel accident insurance benefit plans. 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.
(b) Executive Benefits. Executive shall be entitled to participate
in all executive benefit or incentive compensation plans now maintained or
hereafter established by the Company for the purpose of providing compensation
and/or benefits to executives of the Company including, but not limited to, the
Company's 401(k) and deferred compensation plans and any supplemental
retirement, salary continuation, stock option, deferred compensation,
supplemental medical or life insurance or other bonus or incentive compensation
plans. Unless otherwise provided herein, Executive's participation in such plans
shall be on the same basis and terms, as other senior executives of the Company,
but in no event on a basis less favorable in terms of benefit levels or reward
opportunities applicable to 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 Executive's
entitlements hereunder.
(c) Fringe Benefits and Perquisites. Executive shall be entitled
to all fringe benefits and perquisites (e.g. relocation expenses, temporary
housing, physical examinations, additional reimbursement for uncovered medical
expenses, executive life insurance, tax advisory services and automobile
benefit) generally made available by the Company to its senior executives.
(d) Eligibility Waiver of Waiting Times. Subject to the terms of
this Agreement, Executive (and to the extent applicable under the terms and
benefits of such plans which apply to family members, Executive's family) shall
have the right to participate in all employee plans and benefits currently
existing or hereafter granted by the Company to its employees and all waiting
periods under such plans and benefits arrangements will be waived to the full
extent possible unless such waiver would require the Company to waive waiting
periods for other employees. In the event that the provisions of any such
employee plans or benefit arrangements do not permit immediate waiver of waiting
periods, comparable benefits will be provided to Executive and his beneficiaries
outside such plans and arrangements.
(e) Business Expenses. Upon submission of proper invoices in
accordance with the Company's normal procedures, Executive shall be entitled to
receive prompt reimbursement of all reasonable out-of-pocket business,
entertainment and travel expenses incurred by him in connection with the
performance of his duties hereunder or for promoting, pursuing or otherwise
furthering the business or interest of the Company.
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(f) Office and Facilities. Executive shall be provided with an
appropriate office in Costa Mesa, California, with such secretarial and other
support facilities as are commensurate with Executive's status with the Company
and adequate for the performance of his duties hereunder.
(g) Vacation and Sick Leave. Executive shall be entitled, without
loss of pay, to absent himself voluntarily from the performance of his
employment under this Agreement, pursuant to the following:
(i) 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;
(ii) in addition to the aforesaid paid vacations, 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 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; and
(iii) 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.
5. Termination. Executive's employment hereunder may be terminated
under the following circumstances:
(a) Death. Executive's employment shall be terminated as of the
date of Executive's death and Executive's beneficiaries shall be entitled to the
benefits provided in Section 7(a) hereof.
(b) Disability. The Company may terminate Executive's employment
after having established Executive's Disability, subject to the payment by the
Company to Executive of the benefits provided in Section 7(a) hereof. For
purposes of this Agreement, "Disability" shall have the meaning provided in the
Company's long-term disability policy as then applicable to Executive. Executive
shall be entitled to the compensation and benefits provided for under this
Agreement for any period prior to the establishment of Executive's Disability
during which Executive is unable to work due to a physical or mental infirmity.
(c) Cause. The Company may terminate Executive's employment for
"Cause", effective as of the date of the Notice of Termination (as defined in.
Section 6 below), subject to the payment by the Company to Executive of the
benefits provided in Section 7(a) hereof. A termination for Cause is a
termination made because Executive has (A) committed an act of fraud or
embezzlement against the Company or any affiliate thereof, an unauthorized
disclosure of Confidential Information (as defined in Section 10 below) of the
Company which disclosure results in material damage to the Company, or a breach
of one or more of the following duties to the Company which continues after
written notice thereof and a reasonable opportunity to cure: (1) the duty not to
take actions which would reasonably be viewed by the Company as placing
Executive's interest in a position adverse to the interests of the Company, or
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(2) the duty not to engage in self-dealing with respect to the Company's assets,
properties or business opportunities; or (B) been convicted (or a plea of nolo
contendere entered) for the commission of (1) a felony or (2) a crime involving
fraud, dishonesty or moral turpitude; or (C) engaged in intentional misconduct
as an employee of the Company, which misconduct or violation results in material
damage to the Company or its reputation and continues after written notice
thereof and a reasonable opportunity to cure (if such misconduct is susceptible
to cure by Executive), including, but not limited to (1) intentional violations
by Executive of written policies of the Company or specific directions of the
Board or Chairman of the Board, which policies or directives are not illegal (or
do not involve illegal conduct) nor do they require Executive to violate
reasonable business ethical standards, or (2) intentional violations of the
Company's code of corporate conduct; or (D) failed, after written notice from
the Company to render services to the Company in accordance with this Agreement
or Executive's position and responsibilities with the Company in a manner that
amounts to gross neglect in the performance of his duties to the Company. The
Company may suspend Executive, without pay, upon Executive's indictment for the
commission of (1) a felony or (2) a crime involving fraud, dishonesty or moral
turpitude. Such suspension may remain effective until such time as the
indictment is either dismissed or a verdict of not guilty has been entered, at
which time Executive shall be reinstated with the Company. Upon such
reinstatement, Executive shall be entitled to payment by the Company of all Base
Salary to which Executive would have otherwise been entitled to during the
period of such suspension.
(d) Without Cause. The Company may terminate Executive's
employment without Cause. The Company shall deliver to Executive a Notice of
Termination (as defined in Section 6 below) not less than sixty (60) days prior
to the termination of Executive's employment without Cause and the Company shall
have the option of terminating Executive's duties and responsibilities (but not
his employment) prior to the expiration of such sixty-day notice period, subject
to the payment by the Company of the benefits provided in either Section 7(d) or
7(e) hereof, as may be applicable.
(e) Good Reason. Executive may terminate his employment for "Good
Reason" (as defined below) by delivering to the Company a Notice of Termination
(as defined in Section 6 below) not less than sixty (60) days prior to the
termination of Executive's employment for Good Reason. The Company shall have
the option of terminating Executive's duties and responsibilities (but not his
employment) prior to the expiration of such sixty-day notice period, subject to
the payment by the Company of the benefits provided in either Section 7(b) or
7(e) hereof, as may be applicable. For purposes of this Agreement, Good Reason
shall mean the occurrence of any of the events or conditions described in
Subsections (i) through (iv) hereof which are not cured by the Company within 20
days after the Company has received written notice from Executive specifying the
particular events or conditions which constitute Good Reason and the specific
cure requested by Executive.
(i) Diminution of Responsibility. (A) A material
diminution in Executive's status, title, position or responsibilities (including
reporting responsibilities) as in effect immediately prior thereto; (B) the
assignment to Executive of any duties or responsibilities which are materially
inconsistent with such status, title, position or responsibilities; or (C) any
removal of Executive from or failure to reappoint Executive to the position of
Executive Vice
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President and Chief Financial Officer, except in connection with the termination
of Executive's employment as provided for elsewhere in this Agreement;
(ii) Salary Reduction. A reduction in Executive's Base
Salary or a failure by the Company to increase 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 of the Company;
(iii) Relocation. The Company's requiring 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; or
(iv) Discontinuation of Material Compensation or Benefit
Plan. The failure by the Company to (A) continue in effect any material
compensation or benefit plan in which Executive was participating, including,
but not limited to, the Company's deferred compensation plan and 401(k) plan;
and (B) provide Executive with compensation and benefits substantially equal (in
terms of benefit levels and/or reward opportunities) to those provided for under
such plan.
(f) Without Good Reason. Executive may voluntarily terminate his
employment without Good Reason by delivering to the Company a Notice of
Termination not less than sixty (60) days prior to the termination of
Executive's employment and the Company shall have the option of terminating
Executive's duties and responsibilities (but not his employment) prior to the
expiration of such sixty-day notice period, subject to the payment by the
Company to Executive of the benefits provided in Section 7(a) hereof through the
last day of such notice period.
(g) Non-Renewal of Term of Agreement. Either party may elect not
to extend the Term of Agreement pursuant to Section 1 hereof, subject to the
payment by the Company to Executive of the benefits provided in Section 7(c)
hereof.
6. Notice of Termination. Any purported termination by the Company or
by Executive shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which indicates a termination date, the specific termination
provision in this Agreement relied upon and sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated. For purposes of this
Agreement, no such purported termination of Executive's employment hereunder
shall be effective without such Notice of Termination.
7. Compensation Upon Termination. Upon termination of Executive's
employment during the Term of Agreement, Executive shall be entitled to the
following benefits:
(a) Termination by the Company for Cause, Disability, Death or by
Executive Without Good Reason. If Executive's employment is terminated by the
Company for Cause or Disability or by Executive Without Good Reason, or by
reason of Executive's death, the Company shall pay Executive all amounts earned
or accrued hereunder through the termination date, including:
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(i) any accrued and unpaid Base Salary;
(ii) reimbursement for any and all monies advanced or
expenses incurred in connection with Executive's employment for reasonable and
necessary expenses incurred by Executive on behalf of the Company for the period
ending on the termination date;
(iii) any accrued and unpaid vacation pay;
(iv) if such termination occurs during the 2003 fiscal
year, the Guaranteed Bonus, multiplied by a fraction (A) the numerator of which
is the number of days in such fiscal year through termination date and (B) the
denominator of which is 365; and
(v) any previous compensation which Executive has
previously deferred (including any interest earned or credited thereon), subject
to the terms and conditions of the applicable deferred compensation plans then
in effect (the foregoing items in Section 7(a)(i) through 7(a)(v) being
collectively referred to as the "Accrued Compensation").
In addition to the Accrued Compensation, if Executive's employment is
terminated by the Company for Disability or by reason of Executive's death, the
Company shall pay to Executive or his beneficiaries an amount equal to the bonus
or incentive award that Executive would have been entitled to receive in respect
of the fiscal year in which 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 Executive, as applicable, for such fiscal year, multiplied by a fraction
(A) the numerator of which is the number of days in such fiscal year through the
termination date and (B) the denominator of which is 365 (a "Pro Rata Bonus").
Executive's entitlement to any other compensation or benefits hereunder
shall be determined in accordance with the Company's employee benefit plans and
other applicable programs and practices then in effect.
(b) Termination by Executive for Good Reason. If Executive
terminates his employment for Good Reason, Executive shall be entitled to the
benefits provided in Section 7(d)(i) below. Thereafter, if Executive voluntarily
elects and agrees not to engage in Prohibited Activities for a period of one (1)
year after the date of such termination of employment, Executive shall also be
entitled to the post-employment benefits provided in Section 7(d)(ii) below as
set forth in such section. If Executive does not so voluntarily elect and agree
or otherwise engages in such Prohibited Activities, then Executive's eligibility
to receive the post-employment benefits provided for in Section 7(d)(ii) below
shall immediately terminate. For the purposes of this Agreement, the term
"Prohibited Activities" means directly or indirectly engaging as an owner,
employee, consultant or agent of any entity that manufactures, markets and
distributes (directly or indirectly through related entities, joint ventures,
strategic alliances or other affiliated entities) prescription or
non-prescription pharmaceuticals or medical devices for treatments in the fields
of dermatology, oncology or hepatology. Notwithstanding the foregoing, it shall
not be considered a "Prohibited Activity" for Executive to own or purchase any
corporate securities of any entity that is regularly traded on a recognized
stock exchange or over-the-
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counter market so long as Executive does not own, in the aggregate, 5% or more
of the voting equity securities of any such entity.
(c) Termination Due to Non-Renewal of Term of Agreement. (i) If
the Company notifies Executive under Section 1 hereof that it shall not extend
the Term of Agreement for any Renewal Period, Executive shall be entitled to the
benefits provided in Section 7(d)(i) below. Thereafter, if Executive voluntarily
elects and agrees not to engage in Prohibited Activities for a period of one (1)
year after the date of Executive's termination of employment, Executive shall
also be entitled to the post-employment benefits provided in Section 7(d)(ii)
below as set forth in such section. If Executive does not so voluntarily elect
and agree or otherwise engages in such Prohibited Activities, then Executive's
eligibility to receive the post-employment benefits provided for in Section
7(d)(ii) below shall immediately terminate.
(ii) If Executive notifies the Company under Section 1
hereof that he shall not extend the Term of Agreement for any Renewal Period,
Executive shall be entitled to any Accrued Compensation through the effective
date of Executive's termination and the Pro Rata Bonus.
(d) Termination by the Company Without Cause. If Executive's
employment by the Company shall be terminated by the Company without Cause, then
Executive shall be entitled to:
(i) any Accrued Compensation through the date of
termination of employment. In addition, Executive shall be entitled to any other
compensation and benefits determined in accordance with the Company's employee
benefit plans and other applicable programs and practices then in effect.
(ii) If Executive voluntarily elects and agrees not to
engage in Prohibited Activities for a period of one (1) year after the date of
such termination of employment, the Company shall pay Executive as additional
compensation for the periods subsequent to the termination date, an amount in
cash equal to the sum of (A) 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 delivered for the greater of (i) one year; and (ii) the
number of months remaining in the Initial Term, and (B) the Bonus Amount. The
additional compensation provided in the previous sentence shall be payable in
substantially equal monthly installments for the greater of (x) a period of
twelve months and (y) the number of months remaining in the Initial Term. If
Executive does not so voluntarily elect and agree or otherwise engages in such
Prohibited Activities, then Executive's eligibility to receive the
post-employment benefits provided for in this Section 7(d)(ii) shall immediately
terminate. For purposes of this Section 7, the term "Bonus Amount" shall mean
the average annual cash bonus or incentive compensation received by Executive by
virtue of Section 3(c) above during the two fiscal years immediately preceding
the termination date. In the event Executive's termination occurs during the
2003 fiscal year, "Bonus Amount" shall be an amount equal to the Guaranteed
Bonus. In the event Executive's termination shall occur in the 2004 fiscal year,
then the "Bonus Amount" shall mean the (i) sum of the cash bonus received by
Executive by virtue of Section 3(c) above for the 2003 fiscal year plus the cash
bonus Executive otherwise would have been entitled to receive by virtue of
Section 3(c) above for the 2004 fiscal year had Executive remained employed by
the
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Company for such fiscal year based on the performance of Executive and the
Company, divided by (ii) 2.
(e) Termination by the Company Without Cause or by Executive for
Good Reason Following a Change in Control. If Executive's employment by the
Company shall be terminated by the Company without Cause or by Executive for
Good Reason within twelve (12) months following a Change in Control (as defined
in Section 8 below), then in lieu of the amounts due under Sections 7(b) or 7(d)
above, Executive shall be entitled to the benefits provided below:
(i) any Accrued Compensation through the date of
termination of employment;
(ii) for a number of months equal to the lesser of (A)
twenty-four (24), or (B) the number of months remaining until Executive's 65th
birthday, the Company shall at its expense continue on behalf of Executive and
his dependents and beneficiaries the life insurance, disability, medical, dental
and hospitalization benefits which were being provided to Executive at the time
Notice of Termination is given. In the event that the provisions of any such
employee benefit arrangements do not permit continuing coverage, then the
Company shall provide Executive with substantially equivalent coverage through
other sources. The benefits provided in this Section 7(e)(ii) shall be no less
favorable to Executive, in terms of amounts and deductibles and costs to him,
than the coverage provided Executive under the plans providing such benefits at
the time Notice of Termination is given. The Company's obligation hereunder with
respect to the foregoing benefits shall be limited to the extent that 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 Executive hereunder as long as the aggregate coverage of the combined
benefit plans is no less favorable to Executive, in terms of amounts and
deductibles and costs to him, than the coverage required to be provided
hereunder. This Subsection (ii) shall not be interpreted so as to limit any
benefits to which Executive or his dependents may be entitled under any of the
Company's employee benefit plans, programs or practices following Executive's
termination of employment, including without limitation, retiree medical and
life insurance benefits;
(iii) all restrictions on any outstanding awards granted by
the Company or any subsidiaries of the Company (including restricted stock
awards) granted to Executive shall lapse and such awards shall become fully
(100%) and immediately vested, and all stock options and stock appreciation
rights granted to Executive shall become fully (100%) and immediately
exercisable; and
(iv) if prior to a termination under this Section 7(e), the
Company shall adopt a supplemental and excess retirement plan which covers
Executive, then the Company shall pay in twenty-four (24) substantially equal
monthly payments an amount in cash equal to the excess of (A) the actuarial
equivalent of the aggregate retirement benefit Executive would have been
entitled to receive under such supplemental and excess retirement plans had (x)
Executive remained employed by the Company for an additional two (2) complete
years of
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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 7(d)(ii)) plus the Bonus Amount, and (z) he been fully
(100%) vested in his benefits under each such retirement plan, over (B) the
actuarial equivalent of the aggregate retirement benefit 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).
In addition, if Executive voluntarily elects and agrees not to engage in
Prohibited Activities for a period of one (1) year after the date of such
termination of employment, Executive shall also be entitled, as additional
compensation for the periods subsequent to the termination date, a
post-employment benefit in an amount in cash equal to three (3) times the sum of
(A) 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,
and (B) the Bonus Amount. Fifty percent (50%) of the foregoing severance
payments provided for in the previous sentence shall be paid in one lump sum and
the remaining fifty percent (50%) of the foregoing severance payments shall be
payable in twelve substantially equal monthly installments. If Executive does
not so voluntarily elect and agree or otherwise engages in such Prohibited
Activities, then Executive's eligibility to continue to receive the
post-employment benefits provided for in this paragraph shall immediately
terminate.
Executive shall not be required to mitigate the amount of any payment
provided for under this Section 7 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 Executive in any subsequent employment.
8. Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(a) 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 thirty percent (30%) or
more of the combined voting power of the Company's then outstanding voting
securities;
(b) the individuals who, as of the date hereof, are members of the
Board (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
(c) approval by stockholders of the Company of:
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(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 seventy percent (70%) 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(a), solely because thirty percent (30%) 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 any of its subsidiaries
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.
9. Federal Excise Tax.
(a) General Rule. Executive's payments and benefits under this
Agreement and all other arrangements or programs related thereto shall not, in
the aggregate, exceed the maximum amount that may be paid to Executive without
triggering golden parachute penalties under Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), and the provisions related thereto with
respect to such payments. If Executive's benefits must be cut back to avoid
triggering such penalties, Executive's benefits will be cut back in the priority
order Executive designates or, if Executive fails to promptly designate an
order, in the priority order designated by the Company. If an amount in excess
of the limit set forth in this Section is paid to Executive, Executive must
repay the excess amount to the Company upon demand, with interest at the rate
provided in Code Section 1274(b)(2)(B). Executive and the Company agree to
cooperate with each other reasonably in connection with any administrative or
judicial proceedings concerning the existence or amount of golden parachute
penalties on payments or benefits Executive receives.
(b) Exception. Section 9(a) shall apply only if it increases the
net amount Executive would realize from payments and benefits subject to Section
9(a), after payment of income and excise taxes by Executive on such payments and
benefits.
(c) Determinations. The determination of whether the golden
parachute penalties under Code Section 280G and the provisions related thereto
apply shall be made by counsel chosen by Executive and reasonably acceptable to
the Company. All other determinations needed to apply this Section 9 shall be
made in good faith by the Company's independent auditors.
10. Records and Confidential Data.
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(a) Executive acknowledges that in connection with the performance
of his duties during the Term of Agreement the Company will make available to
Executive, or Executive will have access to, certain Confidential Information
(as defined below) of the Company and its affiliates. Executive acknowledges and
agrees that any and all Confidential Information learned or obtained by
Executive during the course of his employment by the Company or otherwise,
whether developed by Executive alone or in conjunction with others or otherwise,
shall be and is the property of the Company and its affiliates.
(b) The Confidential Information will be kept confidential by
Executive, will not be used in any manner which is detrimental to the Company,
will not be used other than in connection with Executive's discharge of his
duties hereunder, and will be safeguarded by Executive from unauthorized
disclosure.
(c) For the purposes of this Agreement, "Confidential Information"
shall mean all confidential and proprietary information of the Company and its
affiliates, including, without limitation, information derived from reports,
investigations, experiments, research, work in progress, drawing, designs,
plans, proposals, codes, marketing and sales programs, client lists, client
mailing lists, supplier lists, financial projections, cost summaries, pricing
formula, marketing studies relating to prospective business opportunities and
all other concepts, ideas, materials, or information prepared or performed for
or by the Company or its affiliates. For purposes of this Agreement, the
Confidential Information shall not include and Executive's obligation's shall
not extend to (i) information which is generally available to the public, (ii)
information obtained by Executive other than pursuant to or in connection with
this employment and (iii) information which is required to be disclosed by law
or legal process.
(d) Executive's obligations under this Section 10 shall survive
the termination of the Term of Agreement.
11. Covenant Not to Solicit.
(a) Covenant Not to Solicit. To protect the Confidential
Information and other trade secrets of the Company, Executive agrees, during the
term of this Agreement and for a period of twelve months after Executive's
cessation of employment with the Company, not to solicit or participate in or
assist in any way in the solicitation of any employees or consultants of the
Company. For purposes of this covenant, "solicit" or "solicitation" means
directly or indirectly influencing or attempting to influence employees or
consultants of the Company to become employed with any other person,
partnership, firm, corporation or other entity. Executive agrees that the
covenants contained in this Section 11 are reasonable and desirable to protect
the Confidential Information of the Company.
(b) It is the intent and desire of Executive and the Company that
the restrictive provisions of this Section 11 be enforced to the fullest extent
permissible under the laws and public policies as applied in each jurisdiction
in which enforcement is sought. If any particular provision of this Section 11
shall be determined to be invalid or unenforceable, such covenant shall be
amended, without any action on the part of either party hereto, to delete
therefrom the portion so determined to be invalid or unenforceable, such
deletion to apply only with respect to the operation of such covenant in the
particular jurisdiction in which such adjudication is made.
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(c) Executive's obligations under this Section 11 shall survive
the termination of the Term of Agreement.
12. Remedies for Breach of Obligations under Sections 10 or 11 hereof.
Executive acknowledges that the Company will suffer irreparable injury, not
readily susceptible of valuation in monetary damages, if Executive breaches his
obligations under Sections 10 or 11 hereof. Accordingly, Executive agrees that
the Company will be entitled, in addition to any other available remedies, to
obtain injunctive relief against any breach or prospective breach by Executive
of his obligations under Sections 10 or 11 hereof. The Company shall seek such
relief in any Federal or state court in the State of California where venue
would be appropriate based upon Executive's principal residence or his principal
place of business, or, at the Company's election, in any other state in which
Executive maintains his principal residence or his principal place of business
as provided for in Section 13(g) below. Executive hereby submits to the
non-exclusive jurisdiction of all those courts for the purposes of any actions
or proceedings instituted by the Company to obtain that injunctive relief, and
Executive agrees that process in any or all of those actions or proceedings may
be served by registered mail, addressed to the last address provided by
Executive to the Company, or in any other manner authorized by law. Notice in
such proceedings shall be given in the manner required by law. Executive further
agrees that, in addition to any other remedies available to the Company by
operation of law or otherwise, in the event Executive willfully and materially
breaches any of his obligations under Sections 10 or 11 hereof, he shall not be
entitled to any amounts which may otherwise be payable under the terms of
Sections 7(b), 7(c), 7(d) and 7(e) hereof and under the terms of the benefit
plans of the Company in which he participates and to which he might otherwise
then be entitled by virtue hereof.
13. Miscellaneous.
(a) Successors and Assigns.
(i) 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 if no such succession or assignment had taken place. The
term "the Company" 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.
(ii) Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by 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
Executive's legal personal representatives.
(b) Fees and Expenses; Legal Counsel. The Company shall pay all
reasonable legal fees and related expenses, up to a maximum amount of $20,000,
incurred by Executive in connection with the negotiation of this Agreement and
related employment arrangements. Executive acknowledges that he has had the
opportunity to consult with legal counsel of his
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choice in connection with the drafting, negotiation and execution of this
Agreement and related employment arrangements.
(c) 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 Chairman 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.
(d) Withholding. The Company shall be entitled to withhold the
amount, if any, of all taxes of any applicable jurisdiction required to be
withheld by an employer with respect to any amount paid to Executive hereunder.
The Company, in its sole and absolute discretion, shall make all determinations
as to whether it is obligated to withhold any taxes hereunder and the amount
hereof.
(e) Release of Claims. The Company may condition payment of the
cash termination benefits described in Sections 7(b), 7(c), 7(d) and 7(e) of
this Agreement upon the delivery by Executive of a signed release of claims in a
form customarily employed by the Company; provided, however, that Executive
shall not be required to release any rights Executive may have to be indemnified
or held harmless by the Company.
(f) Modification; Entire Agreement. 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 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.
(g) Arbitration. If any legally actionable dispute arises under
this Agreement or otherwise which cannot be resolved by mutual discussion
between the parties, then the Company and Executive each agree to resolve that
dispute by binding arbitration before an arbitrator experienced in employment
law. Said arbitration will be conducted in accordance with the rules applicable
to employment disputes of the Judicial Arbitration and Mediation Services
("JAMS") and the law applicable to the claim. The parties shall have 30 calendar
days after notice of such arbitration has been given to attempt to agree on the
selection of an arbitrator. In the event the parties are unable to agree in such
time, JAMS will provide a list of nine available arbitrators and an arbitrator
will be selected from such nine-member panel provided by JAMS by the parties
alternately striking out one name of a potential arbitrator until only one name
remains. The party entitled to strike an arbitrator first shall be selected by a
toss of a coin. The parties agree that this agreement to arbitrate includes any
such disputes that the Company may have against Executive, or Executive may have
against the Company and/or its related entities and/or
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employees, arising out of or relating to this Agreement, or Executive's
employment or Executive's termination including, but not limited to, any claims
of discrimination or harassment in violation of applicable law and any other
aspect of Executive's compensation, employment, or Executive's termination. The
parties further agree that arbitration as provided for in this Section 13(g) is
the exclusive and binding remedy for any such dispute and will be used instead
of any court action, which is hereby expressly waived, except for any request by
either party for temporary or preliminary injunctive relief pending arbitration
in accordance with applicable law or for breaches by Executive of Executive's
obligations under Sections 10 or 11 above or an administrative claim with an
administrative agency. The parties agree that the arbitration provided herein
shall be conducted in Orange County, California unless otherwise mutually agreed
or unless Executive's primary place of employment is a different location. The
Company shall pay the cost of any arbitration brought pursuant to this
paragraph, including filing fees, administrative fees and the costs of the
arbitrator, excluding, however, the filing fees of Executive if he is the moving
party to the extent such fees are equal to or less than those that would
applicable to file a complaint in the Orange County Superior Court and the cost
of representation of Executive unless such cost is awarded in accordance with
law or otherwise awarded by the arbitrators.
(h) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California
applicable to contracts executed in and to be performed entirely within such
State, without giving effect to the conflict of law principles thereof.
(i) No Conflicts. Executive represents and warrants to the Company
that he is not a party to or otherwise bound by any agreement or arrangement
(including, without limitation, any license, covenant, or commitment of any
nature), or subject to any judgment, decree, or order of any court or
administrative agency, that would conflict with or will be in conflict with or
in any way preclude, limit or inhibit Executive's ability to execute this
Agreement or to carry out his duties and responsibilities hereunder.
(j) Trade Secrets of Others. The Company acknowledges that
Executive, as a current and/or former employee or independent contractor of
another company, may previously have been privy to trade secrets and/or
confidential information of such other company, and may be under an obligation
to such other company to maintain the confidentiality of such trade secrets or
confidential information. Accordingly, to the extent Executive is under such an
obligation, Executive shall not: (a) bring any records, notes, files, drawings,
documents, plans and like items, provided to him in confidence by such other
company, or any copies thereof, relating to or containing or disclosing
confidential information or trade secrets of any such other company on the
premises of the Company or otherwise use such documents and items in the
performance of services for the Company; or (b) disclose any confidential
information or trade secrets provided to Executive in confidence by such other
company to any other employee of the Company; provided, however, that this
prohibition only applies to documents or information that Executive obtained or
learned before the beginning of his relationship with the Company.
(k) 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
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(l) 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.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and Executive has executed this Agreement as of
the day and year first above written.
ICN PHARMACEUTICALS, INC.
By:
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Name: Robert W. O'Leary
Title: Chairman and Chief Executive Officer
BARY G. BAILEY
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