This EMPLOYMENT
AGREEMENT (this “Agreement”) dated as of the 15th day
of July 2008, between Barr Pharmaceuticals, Inc., a Delaware
corporation having its principal executive offices at 225 Summit
Avenue, Montvale, New Jersey 07645-1523 (the “ Company
”), and Jane F. Greenman (the “ Employee
”).
WHEREAS, the
Company wishes to assure itself of the services of the Employee and
provide an inducement for the Employee to remain in its employ;
and
WHEREAS, the
Employee is willing to remain in the employ of the Company on the
terms and conditions hereafter set forth;
NOW, THEREFORE,
the Company and the Employee hereby agree as follows:
1.
Employment . The Company agrees to employ the Employee, and
the Employee agrees to serve in the employ of the Company, during
the term of this Agreement on the terms and conditions hereafter
set forth.
2.
Term . The term of this Agreement shall commence on
July 15th, 2008 (the “ Commencement Date ”)
and shall terminate at 5 P.M. (E.S.T.) on December 31, 2011
unless sooner terminated in accordance with the terms of this
Agreement or extended as hereinafter provided. The term of this
Agreement shall be extended, without further action by the Company
or the Employee, on the date (the “ Extension Effective
Date ”) that is six (6) months before
December 31, 2011 and on the date (also an “
Extension Effective Date ”) that is six (6) months
before each subsequent December 31, for successive periods of
twelve (12) months each, unless the Company shall have given
written notice to the Employee, or the Employee shall have given
written notice to the Company, in the manner set forth in paragraph
13(e) or (f) below, prior to the Extension Effective Date in
question, that the term of this Agreement that is in effect at the
time such written notice is given is not to be extended or further
extended, as the case may be.
3.
Position and Responsibilities; Place of Performance
.
(a) Throughout
the term of this Agreement, the Employee agrees to serve in the
employ of the Company, and the Company agrees to employ the
Employee, as its Executive Vice President, Global Human Resources,
reporting to the Chairman of the Board of Directors and Chief
Executive Officer of the Company (the “ CEO ”).
As the Company’s Executive Vice President, Global Human
Resources, the Employee shall be responsible for managing and
supervising, and shall have responsibility for the day-to-day
conduct of, all aspects of Human Resources (HR) for the
Company and its Subsidiaries and Affiliates in the United States,
Europe and the rest of the world, including, without limitation,
structuring the global HR function to ensure that policies and
practices are coordinated and directed at the appropriate corporate
level, formulating broad-based and executive compensation and
benefit plans and strategies, managing, coordinating and
safeguarding employee data so as to facilitate operation of the HR
function, designating the appropriate platforms for delivery of HR
services, employee training and development, and organization
design and succession planning, and shall perform such
other
reasonable
duties, consistent with the position of Executive Vice President,
Global Human Resources, as may lawfully be assigned to the Employee
by the Company’s Board of Directors (the “ Board
”) and the CEO, and shall have all of the powers, authority,
duties and responsibilities usually incident to the position and
role of Executive Vice President, Global Human Resources of
companies that are comparable in size, character and performance to
the Company, all subject to the authority of the Board and the
CEO.
(b) In
connection with the Employee’s employment by the Company, the
Employee shall be based at the principal executive offices of the
Company in the greater New York City metropolitan area, including
Montvale, New Jersey, and the Employee agrees to travel, to the
extent reasonably necessary to perform the Employee’s duties
and obligations under this Agreement, to Company facilities and
other destinations elsewhere at the Company’s
expense.
(c) During
the term of this Agreement, the Employee shall serve the Company on
an exclusive basis (it being understood that the Employee’s
engaging in activities on behalf of an Affiliate shall be deemed
serving the Company for this purpose) and shall devote all the
Employee’s business time, attention, skill and efforts to the
faithful performance of the Employee’s duties hereunder;
provided that the Employee may engage in community service and
charitable activities or such other activities as approved by the
CEO and the Board, that do not materially interfere with the
performance of the Employee’s duties and responsibilities
hereunder.
4.
Compensation . For all services rendered by the Employee in
any capacity during the term of this Agreement, and for the
Employee’s undertakings with respect to confidential
information, non-solicitation and disparaging remarks set forth in
Sections 6 and 7 below, the Employee shall be entitled to the
following:
(a) a
salary, payable in installments not less frequent than monthly, at
the annual rate of four hundred and seventy-five thousand dollars
($475,000), with such increases in such rate, if any, as the Board
or a committee of the Board may approve from time to time during
the term of this Agreement in accordance with the Company’s
regular administrative practices applicable to senior officers from
time to time during the term of this Agreement (the
Employee’s annual salary rate as increased from time to time
during the term of this Agreement being hereafter referred to as
the “ Base Salary ”);
(b) participation
in the Company’s annual executive incentive or bonus plan as
in effect from time to time, with the opportunity to receive, for
each fiscal year of the Company that begins or ends during the term
of this Agreement, a target award of fifty percent (50%) of the
Base Salary earned during such year (or such higher amount as the
Board or a committee of the Board may determine, in its discretion,
up to a maximum of the lesser of (i) one hundred percent
(100%) of Base Salary earned during such year or (ii) three
percent (3%) of the Company’s pre-tax and pre-bonus net
operating income for such year), in accordance with the terms and
conditions of such incentive or bonus plan, it being understood
that any award for the fiscal year of the Company in which the term
of this Agreement terminates pursuant to the terms hereof shall be
prorated based on the portion of such fiscal year that coincides
with the term of this Agreement and shall be made at the same time
as awards (if any) are made to other participants with respect to
such fiscal year. The Company will pay the Employee’s
annual
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incentive bonus
for each year at the same time as annual incentive bonus payments
for such year (if any) are made to other participants with respect
to such fiscal year, and in all events within the two and one half
(2 1
/ 2 ) months
following the end of the calendar year in which the bonus is
earned. Annual incentive bonuses are intended to qualify for the
short-term deferral exception to Section 409A of the Internal
Revenue Code of 1986, as amended (the “ Code
”);
(c) participation
in the stock incentive plan applicable to Company officers as from
time to time in effect, subject to the terms and conditions of such
plan;
(d) the
business and personal use of an automobile at Company expense
including, without limitation, payment or reimbursement of
automobile insurance and maintenance expenses, or a cash allowance
in lieu thereof, in accordance with the Company’s automobile
policy applicable to similarly situated senior officers;
and
(e) participation
in all health, welfare, savings and other employee benefit and
fringe benefit plans (including vacation pay plans or policies and
life and disability insurance plans) in which other senior officers
of the Company participate during the term of this Agreement,
subject in all events to the terms and conditions of such plans as
in effect from time to time. Nothing in this paragraph
(e) shall preclude the Company or an Affiliate from amending
or terminating any such plan at any time prior to a Change in
Control or Potential Change in Control. The plans covered by this
paragraph (e) shall not include the annual incentive or stock
incentive plans, which are covered by paragraphs (b) and
(c) above.
5.
Termination of Employment .
(a)
Termination by the Company or an Affiliate without Good Cause or
by the Employee for Good Reason; Non-Renewal Termination
.
(i) If the
Employee’s employment with the Company is terminated by the
Company or an Affiliate without Good Cause (except as an incident
of assigning the rights to Employee’s services to a Permitted
Assignee in accordance with paragraph 13(d) below) when the
Employee is willing and able to continue performing service, or is
terminated by the Employee for Good Reason, in either case during
the term of this Agreement and other than at the expiration of the
term of this Agreement as the same may have been extended in
accordance with the provisions of Section 2 above (any such
employment termination being hereafter referred to as a “
Compensable Termination ”), the Company shall pay the
Employee, in accordance with normal payroll practices, the portion
of the Employee’s Base Salary accrued through the date of the
Compensable Termination and any other amounts to which the Employee
is entitled by law or pursuant to the terms of any compensation or
benefit plan or arrangement in which the Employee participated
prior to the Compensable Termination and, in addition, subject to
all of the provisions of this Section 5, Section 14
below, and further subject to compliance by the Employee with the
provisions of Sections 6 and 7 below, relating to confidential
information, non-solicitation and disparaging remarks, the Company
shall, as liquidated damages or severance pay or both (whichever
characterization(s) will serve to validate the payments), and as
additional consideration for the Employee’s undertakings
under Sections 6 and 7 below, pay the Employee the
following:
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(A) the
Employee’s annual bonus for the fiscal year of the Company
preceding the fiscal year of the Company in which the Compensable
Termination occurs, if unpaid at the time of the Compensable
Termination. Such annual bonus shall be paid at the same time as
bonuses (if any) for such preceding fiscal year are paid to other
officers, and in all events within the first two and one half
(2 1
/ 2 ) months
of the fiscal year in which the Compensable Termination occurs. The
amount of such bonus shall be determined by the Board or a
committee of the Board on a basis consistent with the prior bonus
determinations with respect to the Employee or, in the event a
Change in Control or Potential Change in Control (as defined in
Section 11 below) occurred before the Compensable Termination,
consistent with the bonus determinations with respect to the
Employee prior to the Change in Control or Potential Change in
Control. If the Board or a committee of the Board made no bonus
determinations with respect to the Employee before the Compensable
Termination or, if applicable, before the Change in Control or
Potential Change in Control, the amount of such bonus shall be
determined on a basis consistent with the Board’s or Board
committee’s bonus determinations with respect to other
Executive Vice Presidents before the Compensable Termination or, if
applicable, before the Change in Control or Potential Change in
Control; and
(B) a prorated
annual bonus for the fiscal year of the Company in which the
Compensable Termination occurs, payable at the same time as bonuses
(if any) for such fiscal year are paid to other officers, and in
all events within the first two and one half (2
1 / 2
) months of the fiscal year
following the fiscal year in which the Compensable Termination
occurs. Such prorated annual bonus shall be determined by
multiplying the “Applicable Average Bonus” as defined
below in this subparagraph 5(a)(i)(B) by a fraction, the numerator
of which shall be the number of days elapsed in such fiscal year
through (and including) the date on which the Compensable
Termination occurs and the denominator of which shall be the number
three hundred sixty-five (365). For purposes of this Agreement, the
“ Applicable Average Bonus ” means the highest
of (I) the average annual bonus (including any portion of the
bonus that is deferred) awarded to the Employee during the three
(3)-year period immediately preceding the Compensable Termination
or, if the Employee was employed by the Company for less than three
(3) years before the Compensable Termination, during the
period of the Employee’s employment by the Company prior to
the Compensable Termination (annualizing any bonus awarded for less
than a full year of employment), (II) the average annual bonus
(including any portion of the bonus that is deferred) awarded to
the Employee during the three (3) fiscal years of the Company
that precede the fiscal year in which the Compensable Termination
occurs or during the portion of such three (3) fiscal years in
which the Employee was employed by the Company (annualizing any
bonus awarded for less than a full year of employment); provided
that, if the Compensable Termination occurs after a Change in
Control or Potential Change in Control, the Applicable Average
Bonus shall not be less than the average annual bonus (including
any portion of the bonus that is deferred) awarded to the Employee
during the three (3) years preceding the date on which the
Change in Control or Potential Change in Control occurred or during
the portion of such three (3) years in which the Employee
was
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employed by the
Company (annualizing any bonus awarded for less than a full year of
employment); or (III) the Employee’s target bonus (based
on the greatest of (i) the Employee’s target bonus
percentage and Base Salary rate as specified in Section 4
above, (ii) the Employee’s approved target bonus
percentage and Base Salary rate in effect on the date of the
Compensable Termination, or (iii) the Employee’s
approved target bonus percentage and Base Salary rate in effect on
the date of notice of such Compensable Termination); and
(C) an amount of
money (the “ Severance Payment ”) equal to two
(2) times the Employee’s “Annual Cash
Compensation” as hereafter defined, unless the Severance
Payment is payable solely on account of the Employee’s
resignation for Good Reason pursuant to subparagraph 5(d)(v) below
(relating to the Company or an Affiliate giving the Employee notice
of non-extension), in which case the Severance Payment shall be
equal to one and one-quarter (1 1 / 4
) times the Employee’s
“Annual Cash Compensation” as hereafter defined. Except
as otherwise provided hereafter in this subparagraph 5(a)(i)(C) and
Section 14, seventy-five percent (75%) of the Severance
Payment shall be paid in a lump sum within ten (10) days after
the date of the Compensable Termination. The twenty-five percent
(25%) balance of the Severance Payment shall be paid in six
(6) equal monthly installments, one (1) of which shall be
paid at the end of each of the first six (6) months after the
date of the Compensable Termination, provided, in the case of each
of such six (6) installments, that the Employee has not accepted
full-time or regular part-time employment with or regularly served
as a consultant to a for-profit pharmaceutical company prior to the
date for payment of such installment, it being understood and
agreed that the foregoing condition shall not be violated by the
Employee’s serving as a member of a board of directors of a
for-profit pharmaceutical company or by her performing consulting
services on an ad hoc basis for such a company. If a Change in
Control occurs that is a “change in control event”
within the meaning of Code Section 409A and Treasury
Regulation §1.409A-3(i)(5)(i) (or any similar or successor
provisions) (either before or after the Compensable Termination and
in accordance with Treasury Regulation §1.409A-3(c)), the
Severance Payment (or, in the case of such a “change in
control event” that occurs after the Compensable Termination,
any portion thereof that remains unpaid at the time such
“change in control event” occurs) shall be paid in a
lump sum within ten (10) days after the Compensable
Termination (or, in the case of such a “change in control
event” that occurs after the Compensable Termination, within
ten (10) days after the “change in control event”
occurs), and the two (2) preceding sentences of this
subparagraph shall not apply. For twenty-four (24) months
following a Compensable Termination, the Company shall also provide
the Employee (and, as applicable, the Employee’s covered
dependents), at Company expense, with continuation coverage under
the Company’s group health plan(s) covering similarly
situated executives. For purposes of this Section 5, the
Employee’s “ Annual Cash Compensation ”
shall mean the sum of (I) the Employee’s highest Base
Salary ( i.e., one (1) year’s salary at its
highest rate), plus (II) the “Applicable Average
Bonus” as defined in subparagraph 5(a)(i)(B)
above.
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(ii) If the term
of this Agreement as the same may have been extended in accordance
with the provisions of Section 2 above is not extended or
further extended because the Company or an Affiliate gives written
notice of non-extension to the Employee as provided in
Section 2 above, and there is not Good Cause for termination
of the Employee’s employment at the time of giving such
notice, and the Employee does not thereafter resign for Good Reason
during the term of this Agreement as permitted by paragraph 5(d)(v)
below, and the Employee is willing and able to renew or execute a
new agreement providing terms and conditions substantially similar
to those in this Agreement and to continue providing such services,
then the Company shall pay the Employee, subject to fulfillment by
the Employee of the Employee’s obligations under this
Agreement during the balance of the term and the Employee’s
compliance with the provisions of Sections 6 and 7 below,
relating to confidential information, non-solicitation and
disparaging remarks, as non-renewal compensation, and as additional
consideration for the Employee’s undertakings under this
Agreement, including Sections 6 and 7 below, an amount of
money (the “ Non-Renewal Payment ”) equal to one
and one-quarter (1 1 / 4
) times the Employee’s Annual
Cash Compensation as defined in subparagraph 5(a)(i)(C) above, in
addition to any other amounts to which the Employee may be entitled
hereunder (including without limitation the Employee’s annual
bonus pursuant to paragraph 4(b) above for the fiscal year of the
Company in which the Employee’s employment terminates and any
amounts to which the Employee may be entitled under Section 8,
9 or 10 below) or by law or pursuant to the terms of any
compensation or benefit plan or arrangement in which the Employee
participated before the Employee’s employment terminated.
Except as otherwise provided hereafter in this subparagraph
5(a)(ii), seventy-five percent (75%) of the Non-Renewal Payment
shall be paid in a lump sum within ten (10) days after the
date on which the Employee’s employment terminates, subject
to paragraph 5(f) and Section 14. The twenty-five percent
(25%) balance of the Non-Renewal Payment shall be paid in six
(6) equal monthly installments one (1) of which shall be
paid at the end of each of the first six (6) months after the
date on which the Employee’s employment terminates. If a
Change in Control occurs that is a “change in control
event” within the meaning of Code Section 409A and Treasury
Regulation §1.409A-3(i)(5)(i) (or any similar or successor
provisions) (either before or after the Employee’s
termination and in accordance with Treasury Regulation
§1.409A-3(c)), the Non-Renewal Payment (or, in the case of
such a “change in control event” that occurs after the
Employee’s termination, any portion thereof that remains
unpaid at the time such “change in control event”
occurs) shall be paid in a lump sum within ten (10) days after
the date on which the Employee’s employment terminates (or,
in the case of such a “change in control event” that
occurs after the Employee’s termination, within ten
(10) days after the “change in control event”
occurs), and the two (2) preceding sentences of this
subparagraph shall not apply. For twenty-four (24) months
following the Employee’s termination, the Company shall also
provide the Employee (and, as applicable, the Employee’s
covered dependents), at Company expense, with continuation coverage
under the Company’s group health plan(s) covering similarly
situated executives.
(iii) Following a
Change in Control, the Company shall pay the Employee any unpaid
portion of the “retention bonus” described in the offer
letter between the Company and the Employee, dated July 21,
2007 (the “ Offer Letter ”), upon the earlier of
(A) the
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date such
retention bonus would otherwise be paid pursuant to the terms of
such Offer Letter, provided that the Employee has satisfied all of
the conditions for payment set forth in the Offer Letter, or
(B) the date the Employee is terminated by the Company without
Good Cause or terminates for Good Reason, provided that the
applicable date for purposes of this clause (B) shall be
subject to the Six Month Delay Rule (as defined in Section 14
below) to the extent the Employee is a Specified Employee (as
defined in Section 14 below).
(iv) The foregoing
provisions of (including any payments under) this paragraph 5(a)
shall be in lieu of any severance pay that may be payable under any
plan or practice of the Company, any other Subsidiary or Affiliate
(as such terms are defined in Section 11 below), or by law
(including the WARN Act or any similar state or foreign law), but
shall be in addition to (and not in lieu of) any payments to which
the Employee may be entitled under Sections 8, 9 and 10 below.
Subparagraphs 5(a)(i)(C) and 5(a)(ii) above are intended to be
mutually exclusive, and in no event shall such subparagraphs,
either individually or collectively, be construed to require the
Company to pay an amount of money in excess of two (2) times
the Employee’s Annual Cash Compensation under such
subparagraphs, either individually or collectively, in addition to
continuation coverage under the Company’s group health
plan(s) covering similarly situated executives provided by the
Company to the Employee (and, as applicable, the Employee’s
covered dependents), at Company expense, for twenty-four
(24) months.
(v) The Employee
shall not be required to mitigate the amount of any payment or
benefit provided for in this Agreement (including but not limited
to any payment provided for above in this paragraph 5(a)) by
seeking other employment or otherwise, nor shall any compensation
earned by the Employee in other employment or otherwise reduce the
amount of any payment or benefit provided for in this Agreement,
except as provided in subparagraphs 5(a)(i)(C) and 5(a)(ii)
above.
(vi) A Compensable
Termination shall not include a termination of employment by reason
of the Employee’s death.
(b)
Termination by the Company or an Affiliate for Good Cause or by
the Employee without Good Reason . If, during the term of this
Agreement, the Employee’s employment by the Company is
terminated by the Company or an Affiliate for Good Cause or by the
Employee without Good Reason, the Employee shall not be entitled to
receive any compensation under Section 4 above accruing after
the date of such termination or any payment under paragraph 5(a)
above. However, any obligations of the Company under
Sections 8, 9 and 10 shall not be affected by such termination
of employment. The provisions of this paragraph 5(b) shall be in
addition to, and not in lieu of, any other rights and remedies the
Company may have at law or in equity or under any other provision
of this Agreement in respect of such termination of employment.
However, if during the term of this Agreement the Employee’s
employment is terminated by the Employee without Good Reason and
the Employee gives the Company at least one hundred twenty
(120) days’ advance notice of such termination, then the
Employee shall not have any obligation or liability under this
Agreement on account of such termination of employment, but the
Employee’s obligations under Section 6 and 7 hereof
shall not be affected by such termination of employment.
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(c)
Good Cause Defined . For purposes of this Agreement, the
Company and the Affiliates shall have “ Good Cause
” to terminate the Employee’s employment by the Company
during the term of this Agreement only if:
(i) (A) the
Employee fails to substantially perform the Employee’s duties
hereunder for any reason or to devote substantially all the
Employee’s business time exclusively to the affairs of the
Company (including Company activities on behalf of the other
Affiliates), other than by reason of a medical condition that
prevents the Employee from substantially performing the
Employee’s duties hereunder even with a reasonable
accommodation by the Company, and (B) such failure is not
discontinued within a reasonable period of time, in no event to
exceed thirty (30) days, after the Employee receives written
notice from the Company or an Affiliate of such failure;
or
(ii) the Employee
commits an act of dishonesty resulting or intended to result
directly or indirectly in gain or personal enrichment at the
expense of the Company or an Affiliate, or engages in conduct that
constitutes a felony in the jurisdiction in which the Employee
engages in such conduct; or
(iii) the Employee
is grossly negligent or engages in willful misconduct or
insubordination in the performance of the Employee’s duties
hereunder; or
(iv) the Employee
materially breaches the Employee’s obligations under
Section 6 or paragraph 7(a) below, relating to confidential
information and non-solicitation.
In addition, the
Employee’s employment shall be deemed to have terminated for
Good Cause if, after the Employee’s employment has
terminated, facts and circumstances arising during the course of
the Employee’s employment are discovered that would have
justified a termination for Good Cause under subparagraphs 5(c)(ii)
or (iv) above.
Any foregoing
provision of this paragraph 5(c) to the contrary notwithstanding,
the Company and the Affiliates shall not have “Good
Cause” to terminate the Employee’s employment within
three (3) years after a Change in Control or Potential Change
in Control (as such terms are defined in Section 11 below)
unless (A) the Employee’s act or omission is willful and
has a material adverse effect upon the Company or an Affiliate,
(B) the Board gives the Employee (I) written notice
warning of its intention to terminate the Employee for Good Cause
if the specified act or omission alleged to constitute Good Cause
is not discontinued and, if curable, cured, and (II) a
reasonable opportunity after receipt of such written notice, but in
no event less than two (2) weeks, to discontinue and, if
curable, cure the conduct alleged to constitute Good Cause, and
(C) the Employee fails to discontinue and, if curable, cure
the act or omission in question; provided that clauses (B) and
(C) of this sentence shall not apply with respect to conduct
on the part of the Employee that constitutes a felony in the
jurisdiction in which the Employee engages in such conduct, and,
provided further, that this sentence shall not apply to conduct
involving moral turpitude. For all purposes of this Agreement, no
act, or failure to act, on the Employee’s part shall be
deemed “willful” unless done, or omitted to be done, by
the Employee intentionally and in bad faith ( i.e. , without
reasonable belief that the Employee’s action or omission was
in furtherance of the interests of the Company, another Subsidiary
or Affiliate).
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(d)
Good Reason Defined . For purposes of this Agreement, the
Employee shall have “ Good Reason ” to terminate
employment during the term of this Agreement only if:
(i) the Company
fails to pay or provide any amount or benefit that the Company is
obligated to pay or provide under Section 4 above or
Section 8, 9, or 10 below and the failure is not remedied
within thirty (30) days after the Company receives written
notice from the Employee of such failure; or
(ii) the Employee
is assigned duties, responsibilities, or reporting relationships
not contemplated by Section 3 above without the
Employee’s consent, or the Employee’s duties or
responsibilities or power or authority contemplated by
Section 3 above are limited in any respect materially
detrimental to the Employee, and in either case the situation is
not remedied within thirty (30) days after the Company
receives written notice from the Employee of the situation;
or
(iii) the Employee
is removed from, or not elected or reelected to, the office, title
or position of Executive Vice President, Global Human Resources of
the Company, and the Company and the Affiliates do not have Good
Cause for doing so; or
(iv) the Company
or an Affiliate relocates the Employee’s office outside of
either the Company’s principal executive offices or the
greater New York City metropolitan area without the
Employee’s written consent (given in a personal rather than
representative capacity) and the situation is not remedied within
thirty (30) days after the Company receives written notice
from the Employee of the situation; or
(v) the Company or
an Affiliate gives the Employee written notice, in the manner set
forth in paragraph 13(f) below, prior to any Extension Effective
Date, that the term of this Agreement that is in effect at the time
such written notice is given is not to be extended or further
extended, as the case may be; provided that the giving of such
written notice to the Employee shall constitute Good Reason only if
and when the Employee shall have performed such of the
Employee’s duties and responsibilities for such period of
time, in no event to exceed ninety (90) days after the giving
of such notice, as the CEO, another officer to whom the Employee
reports in accordance with paragraph 3(a) above, or the Board, may
reasonably request in writing to transition the Employee’s
duties and responsibilities; or
(vi) a Change in
Control occurs and as a result thereof either (A) equity
securities of the Company cease to be publicly-traded, or
(B) the Employee is not elected or designated to serve as the
sole Executive Vice President, Global Human Resources, of the
Company or its survivor in the Change in Control; or
(vii) a Change in
Control or Potential Change in Control occurs and (A) the
dollar value of the stock optioned to the Employee annually
thereafter is less than the average annual dollar value of the
stock that was optioned to the Employee during the four
(4) years prior to the Change in Control or Potential Change
in Control, or (B) the material terms of such options
(including without limitation vesting schedules) are less favorable
to the Employee than the material terms of the options that were
granted to the Employee during the four (4) years prior to the
Change in Control or Potential Change in
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Control, and in
either case (A) or (B) the situation is not remedied
within thirty (30) days after the Company receives written notice
from the Employee of the situation. For purposes of (A) and
(B) of this subparagraph 5(d)(vii), if free-standing stock
appreciation rights are granted to the Employee, the stock subject
to such rights shall be considered stock that is optioned to the
Employee, and if alternative stock appreciation rights (a/k/a
tandem stock appreciation rights) are granted to the Employee, the
stock appreciation rights shall be considered terms of the options
to which they are alternative/tandem; or
(viii) the Company
or a Permitted Assignee attempts to assign any of its rights or
obligations under this Agreement other than in accordance with
paragraph 13(d) below and does not remedy the situation within
thirty (30) days after the Company receives written notice
from the Employee of the situation; or
(ix) the Company
or any Subsidiary or Affiliate materially breaches the terms of
this Agreement.
In no event shall
the Employee’s continued employment after any of the
foregoing constitute the Employee’s consent to the act or
omission in question, or a waiver of the Employee’s right to
terminate employment for Good Reason hereunder on account of such
act or omission, except as provided in the following sentence. With
respect to any act, omission, or occurrence that is alleged to
occur after the Commencement Date and prior to a Change in Control
or Potential Change in Control, the Employee must provide the
Company with written notice of any one (1) or more of the
conditions set forth in this definition of Good Reason within six
(6) months of the initial existence of the condition for such
condition to constitute Good Reason. Such notice shall not excuse
the Employee from continuing to perform the duties and
responsibilities assigned to the Employee until such time as the
Employee terminates employment. Notwithstanding the foregoing, this
notice requirement shall not apply to acts or omissions alleged to
constitute Good Reason that arise after a Change in Control or
Potential Change in Control.
(i)
Notwithstanding any provision of this Agreement to the contrary,
(A) if during the term of this Agreement as the same may be
extended from time to time pursuant to Section 2 above, a
medical condition prevents the Employee, even with a reasonable
accommodation by the Company, from substantially performing the
Employee’s duties hereunder (it being understood that a
transitory illness, such as a cold or flu, that prevents the
Employee from substantially performing the Employee’s duties
hereunder during a brief period is not such a medical condition),
then until the date, if any, on which the Employee recovers from
such medical condition (the “ Evaluation Period
”), the Company may terminate the Employee’s employment
only pursuant to subparagraph 5(e)(ii) below (a “
Disability Termination ”) or for willful misconduct
constituting Good Cause under paragraph 5(c) above, and (B) if
any notice of nonextension of the term of this Agreement was given
before the Evaluation Period, or is given during the Evaluation
Period, whether by the Company or an Affiliate or the Employee,
pursuant to Section 2 above, and, but for this clause (B), the
term of this Agreement would expire during the Evaluation Period as
a result of such notice of no
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