Employment Agreement - ICN Pharmaceuticals Inc. and Benjamin Lap
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and effective as of April 1, 1999 (the
"Effective Date") by and between ICN Pharmaceuticals, Inc. (the "Company"), a
Delaware corporation, and Benjamin Lap (the "Executive"), an individual
(hereinafter collectively referred to as "the parties").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Executive has heretofore been employed by the Company as
its Vice President and President of ICN Capital, Inc. ("Subsidiary") and is
experienced in all phases of the business of the Company and the Subsidiary and
the Company desires to retain the services of the Executive on the terms set
forth herein; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Company, the Company desires by this writing to set forth the continued
employment relationship of the Executive with the Company.
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, for consideration, the value, sufficiency, and receipt
of which is hereby acknowledged, the parties agree as follows:
1. TERM. The initial term of employment under this Agreement shall be
for the period commencing on the Effective Date, and ending March 31, 2000 (the
"Initial Term"); provided, however, that the term of this Agreement ("Term")
shall be automatically extended for one (1) year on April 1, 2000, and on April
1 of each year thereafter unless 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 President of the
Subsidiary or such other senior executive capacity as may be mutually agreed to
in writing by the parties. The Executive's duties and responsibilities hereunder
shall include overall responsibility for investor relations, communication with
analysts, institutional funds and other investors, attendance at conferences,
and such other duties and responsibilities as are assigned to Executive from
time to time by the Chairman of the Company. Executive shall report
operationally directly and exclusively to the Chairman of the Board of Directors
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, and hereby
agrees to perform such duties and to satisfy such responsibilities subject to
the directions of the Chairman of the Company and the Board of Directors of the
Company (the "Board"). He shall also promote, by entertainment or otherwise, the
business of the Company and the Subsidiary.
<PAGE> 2
(b) During the initial ninety (90) days of the Initial Term of
this Agreement, Executive shall be employed on a half-time basis. Thereafter,
throughout the Term, Executive shall be employed on a full-time basis. 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 and Subsidiary to the extent
necessary to discharge the responsibilities assigned to the Executive hereunder.
The Executive may (i) serve on corporate, civil or charitable boards and
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 the Executive's responsibilities
hereunder.
3. BASE SALARY. The Company agrees to pay or cause to be paid to the
Executive during the Term a base salary at the rate of $150,000 per annum or
such larger amount as the Board may from time to time determine (hereinafter
referred to as the "Base Salary") until August 31, 1999; thereafter Base Salary
shall be increased to $200,000. Such Base Salary shall be payable in accordance
with the Company's or the Subsidiary's customary practices applicable to its
senior 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 Board and may be
further increased (but not decreased) in such amounts as the 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 and
the Subsidiary 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 or the Subsidiary for the purpose of
providing compensation and/or benefits to executives of the Company or the
Subsidiary including, but not limited to, the Company's 401(k), Long Term
Incentive Plan, and any supplemental or other 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 senior executives of the Company or the Subsidiary
(with full credit given to the Executive for prior periods of employment with
the Company and its subsidiaries), 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 August 1, 1998 or the Effective Date, whichever is higher. 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
entitlement hereunder. The Company confirms that (i) nothing in this Agreement
in any way adversely affects stock option or other rights and benefits accorded
to the Executive prior to the Effective Date in connection with the Executive's
prior employment by the Company, and (ii) the Company has granted to the
Executive in connection with his employment hereunder stock options to acquire
90,000 shares of the Company's common stock.
2
<PAGE> 3
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 senior
executives. Executive shall be entitled to travel business class on all flights
in excess of four hours in length.
(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 or the Subsidiary.
(c) Office and Facilities. The Executive shall be based in
Florida, and shall be provided with an appropriate office in Ft. Lauderdale,
Florida, or such other place as may be mutually agreed no later than ninety (90)
days from the date hereof, and with such secretarial and other support
facilities as are commensurate with the Executive's status with the Company or
the Subsidiary and adequate for the performance of his duties hereunder.
7. VACATION AND SICK LEAVE. At such reasonable times as the Chairman of
the Company shall in his 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 senior executives of the Company or the Subsidiary, 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 or the Subsidiary'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
3
<PAGE> 4
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 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 and the Subsidiary. 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 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's requiring the
Executive to be based at any place outside a 30-mile radius from Ft. Lauderdale,
Florida, except for reasonably required travel on the Company's or Subsidiary's
business which is not materially greater than such travel requirements prior to
the Change in Control;
4
<PAGE> 5
(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 or Subsidiary's Long Term Incentive Plan, 401 (K)
Plan, or any other deferred compensation 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 or the Subsidiary) of a petition for bankruptcy, of the
Company or the Subsidiary;
(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 or the Subsidiary which does not comply with
the terms of Section 8 of this Agreement; and
(viii) the failure of the Company or the Subsidiary 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 is 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 or the
Subsidiary) by any person (as such term is defined in Sections 13(d) 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
5
<PAGE> 6
(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, upon
which 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 or the Subsidiary
of (i) a merger or consolidation involving the Company or the Subsidiary 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 or the Subsidiary
outstanding immediately before such merger or consolidation or (ii) a complete
liquidation or dissolution of the Company or the Subsidiary or an agreement for
the sale or other disposition of all or substantially all of the assets of the
Company or the Subsidiary.
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
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.
(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
30 day period; and
(2) if the Executive's employment is terminated for Good
Reason or as 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 or the Subsidiary.
6
<PAGE> 7
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 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 each of the benefits
provided below.
(i) The Company shall pay the Executive all Accrued
Compensation and a Pro Rata Bonus.
(ii) The Company shall pay the 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 denominator 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
7
<PAGE> 8
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 or the Subsidiary and by the Executive 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 or the Subsidiary'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).
(v) All restrictions on any outstanding awards granted
by the Company or any subsidiary 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.
8
<PAGE> 9
(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
Chairman of the Company 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
or the Subsidiary (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 or the
Subsidiary 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
9
<PAGE> 10
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
Company 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 or any of its subsidiaries. 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 or any of its subsidiaries 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.
[SIGNATURE PAGE FOLLOWS]
10
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and delivered by its duly authorized officer and the Executive has
executed this Agreement as of the Effective Date.
COMPANY:
ICN PHARMACEUTICALS, INC.
-------------------------------
David Watt
Secretary
THE EXECUTIVE
--------------------------------
BENJAMIN LAP
11