EXHIBIT 10.20
EMPLOYMENT AGREEMENT dated September 30, 1994 between SCHEIN
PHARMACEUTICAL, INC., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇").
▇▇▇▇▇▇▇ is currently Chairman of the Board, Chief Executive Officer and
President of the Company. The Company recognizes that ▇▇▇▇▇▇▇ has made
substantial contributions to the success of the Company over a long period of
time and desires to assure the Company of ▇▇▇▇▇▇▇'▇ continued service and
▇▇▇▇▇▇▇ desires to continue to perform services for the Company.
In consideration of the agreements hereinafter set forth, the Company
and ▇▇▇▇▇▇▇ agree as follows:
1. EMPLOYMENT
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1.1 Capacity; Duties. The Company hereby employs ▇▇▇▇▇▇▇ as the
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Company's Chairman of the Board, Chief Executive Officer and President. ▇▇▇▇▇▇▇
shall have supervision over the business and affairs of the Company and its
subsidiaries, shall report and be responsible only to the Board of Directors
of the Company, and shall have powers and authority superior to those of any
other officer or employee of the Company or any of its subsidiaries and any
other person involved with the business and affairs of the Company or any of its
subsidiaries. (While ▇▇▇▇▇▇▇ currently holds certain titles and
responsibilities, it is
contemplated that, at some point, one or more, but not all, of such titles
and/or responsibilities will with ▇▇▇▇▇▇▇'▇ consent, which consent may be
withheld in his sole discretion, be conferred by the Board of Directors upon
another person or persons without any diminution in the compensation or benefits
payable to ▇▇▇▇▇▇▇ hereunder, so long as ▇▇▇▇▇▇▇ continues to devote
substantially all of his business time to the Company in at least one of his
current capacities). ▇▇▇▇▇▇▇ accepts such employment and agrees to devote
substantially all of his business time and effort in furtherance of his duties
and responsibilities hereunder. In such connection, ▇▇▇▇▇▇▇ shall not be
required to relocate his residence or perform services which would make the
continuance of his current residence inconvenient to him.
1.2 Employment Period. ▇▇▇▇▇▇▇'▇ employment shall be for the period
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commencing on January 1, 1994 and ending on the fifth anniversary thereof (the
"Employment Expiration Date"), unless terminated earlier pursuant to Section 4
hereof (the "Employment Period").
2. COMPENSATION
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2.1 Base Salary. As compensation for ▇▇▇▇▇▇▇'▇ employment hereunder,
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▇▇▇▇▇▇▇ shall be entitled to receive a base salary (the "Base Salary") at a rate
of $600,000 per annum for the first two years of the Employment Period and
$700,000 per annum for the next three years of the Employment Period, payable
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in accordance with the Company's normal payroll practices for its senior
executive officers from time to time in effect.
2.2 Incentive Compensation. ▇▇▇▇▇▇▇ shall be entitled to receive for
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each year of the Employment Period, in addition to his Base Salary, such
incentive compensation as determined by the Compensation Committee of the Board
of Directors (the "Compensation Committee") based on ▇▇▇▇▇▇▇'▇ performance
during that year (the "Incentive Compensation"). It is contemplated that the
Compensation Committee will award Incentive Compensation to ▇▇▇▇▇▇▇ in the range
of $250,000 to $500,000 per year, in the absence of extraordinary circumstances,
whether positive or negative, when and as the Company awards incentive bonuses
to its other senior executives; provided that if ▇▇▇▇▇▇▇'▇ employment is
terminated during any year prior to the Employment Expiration Date, the
Incentive Compensation for such year shall be based on objective criteria, if
any, established by the Compensation Committee; and provided, further, that if
no such objective criteria have been established by the Compensation Committee,
the Incentive Compensation for such year shall be an amount equal to $250,000
plus the product of (x) the fraction derived by dividing (i) the sum of the
actual cash incentive compensation earned by each of the three most senior
executives of the Company (other than ▇▇▇▇▇▇▇) in the year ▇▇▇▇▇▇▇'▇
employment is terminated less the sum of the minimum cash incentive compensation
contemplated for such executives for such year (as set forth in the cash
incentive compensation range established for such executives, in
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the absence of extraordinary circumstances, by the Compensation Committee), by
(ii) the sum of the maximum cash incentive compensation contemplated for such
executives for such year (as set forth in the cash incentive compensation range
established for such executives, in the absence of extraordinary circumstances,
by the Compensation Committee) less the sum of the minimum cash incentive
compensation contemplated for such executives for such year (as set forth in the
cash incentive compensation range established for such executives, in the
absence of extraordinary circumstances, by the Compensation Committee) and (y)
$250,000.
2.3 Expenses. The Company shall promptly reimburse ▇▇▇▇▇▇▇ for all
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expenses reasonably incurred by him in performance of his duties under this
Agreement, in accordance with the Company's policies and practices in effect
from time to time.
3. BENEFITS
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3.1 Benefits. During the Employment Period, ▇▇▇▇▇▇▇ shall be entitled
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to participate, to the extent eligible thereunder, in all benefit and perquisite
plans, policies and programs, in accordance with the terms thereof, as are
generally provided from time to time by the Company for its senior executive
officers and without limiting the foregoing, those benefits and perquisites
listed on Schedule 1 attached hereto; provided, that if such benefit or
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perquisite is one that is
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generally provided by the Company on the date hereof to its senior executive
officers, ▇▇▇▇▇▇▇'▇ right to participate in such benefit or perquisite plan
shall continue only as long as such benefit or perquisite is provided to the
senior executive officers of the Company. Unless ▇▇▇▇▇▇▇'▇ employment shall have
been terminated for Cause (as defined in Section 4.3 hereof), during the period
commencing on the date ▇▇▇▇▇▇▇ ceases to be an employee of the Company and
continuing for the life of ▇▇▇▇▇▇▇ and for the life of his spouse, the Company
shall continue the participation of ▇▇▇▇▇▇▇ and his spouse in all health,
medical and dental benefit plans, policies and programs in effect from time to
time with respect to the senior executive officers of the Company generally (at
the same levels and at the same premium cost, if any, to the senior executive
officers of the Company generally); provided that, if ▇▇▇▇▇▇▇'▇ or his spouse's
continued participation thereunder is not possible under the general terms and
provisions thereof, the Company shall provide such benefits at such levels to
▇▇▇▇▇▇▇ and his spouse either by obtaining other insurance or by self-insuring
such amounts and shall make such additional payments to ▇▇▇▇▇▇▇ and his
spouse as may be necessary to put the recipient in the same after-tax position
as if such benefits were provided under such plans, policies and programs, net
of any payments or benefits either of them shall receive with respect to health,
medical and dental costs other than pursuant to this Section 3.1.
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3.2 Supplemental Retirement Plan. Commencing on the first day of the
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month following the month in which ▇▇▇▇▇▇▇ is no longer employed by the Company
on a full-time basis for any reason (including death) other than a termination
for Cause, or such later date as ▇▇▇▇▇▇▇ (or his Spouse, if he is not then
living) shall determine, and continuing monthly thereafter during ▇▇▇▇▇▇▇'▇ (and
upon ▇▇▇▇▇▇▇'▇ death, his Spouse's) lifetime, the Company shall pay to ▇▇▇▇▇▇▇
(and upon ▇▇▇▇▇▇▇'▇ death, his Spouse if she shall then be living) an amount
equal to 45% of Average Monthly Cash Compensation (as defined below), reduced by
(i) the hypothetical monthly amount that would be receivable by ▇▇▇▇▇▇▇ under
the Company's Qualified Retirement Plans (as defined below) if ▇▇▇▇▇▇▇'▇
benefits thereunder were being paid as a straight life annuity commencing at age
65, and (ii) the hypothetical monthly and primary social security that would be
received by ▇▇▇▇▇▇▇ if he commenced social security at age 65. Notwithstanding
the foregoing, if ▇▇▇▇▇▇▇ is married at the time of commencement of the
aforesaid benefit, such benefit (but not including the reduction in the benefit
attributable to amounts to be received under the Company's Qualified Retirement
Plans) shall be actuaria11y adjusted until such time as ▇▇▇▇▇▇▇ shall no longer
be married to his Spouse (including by reason of his Spouse's death) to take
into account the hypothetical payment of a reduced joint-and-50% annuity form of
benefit to ▇▇▇▇▇▇▇ and his Spouse rather than the aforesaid straight life
annuity form of benefit. For purposes of this Section, "Average Monthly Cash
Compensation" shall mean ▇▇▇▇▇▇▇'▇ Average Total Cash
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Compensation divided by 12; "Average Total Cash Compensation" shall mean the
average of the highest three of the last five full fiscal years of Total Cash
Compensation (as defined below) occurring prior to the date ▇▇▇▇▇▇▇'▇ employment
is terminated; "Total Cash Compensation" shall mean (y) for any full fiscal year
during the Employment Period, the sum of ▇▇▇▇▇▇▇'▇ Base Salary and Incentive
Compensation earned in respect of such fiscal year, or (z) for any full fiscal
year occurring prior to the Employment Period, the sum of ▇▇▇▇▇▇▇'▇ aggregate
base salary and incentive compensation earned in respect of such fiscal year as
reflected on the Company's books and records; "Qualified Retirement Plans" shall
mean any plan which the Company sponsors or in which it participates and which
is qualified under Section 401(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), provided that if the benefit under such plan includes
amounts attributable to ▇▇▇▇▇▇▇'▇ salary reduction or after-tax contribution to
such plan, the amounts attributable to such contributions and earnings thereon
shall be disregarded in determining the monthly amount attributable to such
plan, and "Spouse" shall mean ▇▇▇▇▇▇▇'▇ spouse, if any, to whom he is married at
the time of commencement of the benefits described in this Section 3.2. In
converting the benefits into a life annuity form or spousal benefit, the
calculations shall be made at the time of commencement of benefits and not
recalculated (unless and until ▇▇▇▇▇▇▇ shall no longer be married to his Spouse
(including by reason of his Spouse's death)), and an interest rate equal to the
Pension Benefit Guaranty Corporation interest rate for immediate
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annuities in effect on the first day of the calendar year in which benefits are
to commence shall be used and the 83 IA Male mortality table shall be used. It
is expressly acknowledged and agreed that the determination of the amounts
payable to ▇▇▇▇▇▇▇ and his Spouse under this Section 3.2 shall not in any way
cause ▇▇▇▇▇▇▇ or his Spouse to elect to take monthly distributions from the
Company's Qualified Retirement Plans or any other payment form, and any and all
permissible payment elections shall be available to him and his Spouse.
4. TERMINATION
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4.1 Termination of Employment. ▇▇▇▇▇▇▇'▇ employment shall terminate
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prior to the Employment Expiration Date only (a) upon ▇▇▇▇▇▇▇'▇ death; (b) by
action of the Board of Directors with or without Cause or due to ▇▇▇▇▇▇▇'▇
Disability (as defined in Section 4.2 hereof); (c) by ▇▇▇▇▇▇▇ following a
material breach of this Agreement or the ▇▇▇▇▇▇▇ Option Agreement by the Company
which is not cured within 30 days after notice from ▇▇▇▇▇▇▇ thereof; or (d) by
▇▇▇▇▇▇▇ upon 30 days prior written notice to the Company.
4.2 Disability. If, by reason of physical or mental disability,
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▇▇▇▇▇▇▇ is unable to carry out his duties for more than 180 days in any twelve-
month period ("Disability"), the Company may terminate ▇▇▇▇▇▇▇'▇ employment
hereunder. During any period of Disability prior to such termination, ▇▇▇▇▇▇▇
shall continue to receive all compensation and other benefits provided
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herein as if he had not been disabled at the time, in the amounts and in the
manner provided herein, provided that the Company shall be entitled to a credit
with regard to the amount, if any, paid to ▇▇▇▇▇▇▇ during such period under any
long term or other disability plan maintained by the Company for the benefit of
▇▇▇▇▇▇▇.
4.3 Cause. For purposes of this Agreement, the term "Cause" shall be
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limited to any action by ▇▇▇▇▇▇▇ during the Employment Period (i) involving
willful malfeasance having a material adverse effect on the Company (other than
his voluntary resignation pursuant to Sections 4.1(c) or 4.1(d) hereof), or (ii)
constituting a material breach of this Agreement which is not cured within 30
days after notice from the Company thereof.
5. CONSEQUENCES OF TERMINATION
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5.1 Death. If ▇▇▇▇▇▇▇'▇ employment hereunder is terminated by reason
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of ▇▇▇▇▇▇▇'▇ death, ▇▇▇▇▇▇▇'▇ estate shall be paid those obligations accrued
hereunder at the date of his death, consisting of, for this purpose, only (a)
▇▇▇▇▇▇▇'▇ unpaid Base Salary through the date of termination, (b) any deferred
compensation earned (together with any accrued earnings thereon) but not yet
paid, (c) any Incentive Compensation awarded to ▇▇▇▇▇▇▇ but not yet paid for the
year preceding the year of termination, (d) any Incentive Compensation for the
year of termination as determined in accordance with Section 2.2 hereof, (e)
any accrued vacation pay, and (f) any other amounts or
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benefits owing to ▇▇▇▇▇▇▇ or his beneficiaries under the then applicable benefit
plans, policies and programs of the Company. (Such amounts specified in clauses
(a) through (f) above are hereinafter referred to as "Accrued Obligations".)
Unless otherwise previously directed by ▇▇▇▇▇▇▇ (or, in the case of any benefit
plan qualified under Section 401(a) of the Code (a "Qualified Plan"), as may be
required by such Qualified Plan), all Accrued Obligations shall be paid, to the
extent such obligations are able to be paid in a lump sum, to ▇▇▇▇▇▇▇'▇ estate
or designated beneficiaries, as the case may be, in a lump sum in cash within 30
days after the date of ▇▇▇▇▇▇▇'▇ death, and otherwise, in accordance with the
terms of the relevant plan or applicable law. ▇▇▇▇▇▇▇ shall also be entitled to
all rights and benefits, to the extent not duplicative of the Accrued
Obligations, under benefit and incentive plans in accordance with the
respective terms of such plans. Nothing in this Section 5.1 shall be deemed to
limit the right of ▇▇▇▇▇▇▇'▇ spouse to receive the benefits referred to in
Sections 3.1 and 3.2 hereof.
5.2 Disability. If ▇▇▇▇▇▇▇'▇ employment is terminated by reason of
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▇▇▇▇▇▇▇'▇ Disability, unless otherwise directed by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ shall be
paid all Accrued Obligations, to the extent such obligations are able to be paid
in a lump sum, in a lump sum in cash within 30 days after the date of
termination due to ▇▇▇▇▇▇▇'▇ Disability, and otherwise, in accordance with the
terms of the relevant plan or applicable law. Nothing in this Section 5.2 shall
be deemed to limit ▇▇▇▇▇▇▇'▇ and his spouse's
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right to receive the benefits referred to in Sections 3.1 and 3.2 hereof.
5.3 Termination for Cause. If ▇▇▇▇▇▇▇'▇ employment with the Company is
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terminated for Cause, ▇▇▇▇▇▇▇ shall receive only Accrued Obligations (other than
the obligation specified in clause (d) of Section 5.1 hereof) at the date of
termination, to be paid to ▇▇▇▇▇▇▇, if able to be paid in a lump sum, in a lump
sum in cash within 30 days after the date of termination, and otherwise, in
accordance with the terms of the relevant plan or applicable law. Benefits and
rights under any benefit or incentive plan shall be paid or retained in
accordance with the terms of such plan.
5.4 Company Termination Without Cause. If ▇▇▇▇▇▇▇'▇ employment with the
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Company is terminated pursuant to Section 4.1(c) hereof or by the Company
without Cause, the Company shall pay or provide, as the case may be, the
following payments and benefits upon such termination:
(a) The Company shall pay to ▇▇▇▇▇▇▇, if able to be paid in a lump sum,
in a lump sum in cash within thirty days after the date of termination, and
otherwise, in accordance with the terms of the relevant plan or applicable law,
any Accrued Obligations at the date of termination.
(b) The Company shall pay to ▇▇▇▇▇▇▇, as ▇▇▇▇▇▇▇▇▇ pay, the Base Salary
payable to ▇▇▇▇▇▇▇ from the date of
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termination through the Employment Expiration Date, payable when and as the
Company pays salary to its senior executives.
(c) The Company shall pay to ▇▇▇▇▇▇▇, as ▇▇▇▇▇▇▇▇▇ pay, when and as the
Company pays salary to its senior executives an amount equal to the product of
(i) a fraction, the numerator of which is the Incentive Compensation earned by
▇▇▇▇▇▇▇ for the last full year of employment 1mmediately prior to termination,
as determined in accordance with Section 2.2 hereof, and the denominator of
which is 365 and (ii) the number of days from the date of termination
through the Employment Expiration Date; provided, however, that the maximum
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amount that the Company shall pay to ▇▇▇▇▇▇▇ under this Section 5.4(c) is the
product of (I) the amount referred to in clause (i) above and (II) 730.
(d) Nothing contained in this Section 5.4 shall be deemed to limit in
any way ▇▇▇▇▇▇▇'▇ and his spouse's right to receive the benefits referred to in
Sections 3.1 and 3.2 hereof.
5.5 ▇▇▇▇▇▇▇'▇ Voluntary Resignation. If ▇▇▇▇▇▇▇ voluntarily
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terminates his employment with the Company prior to the Employment Expiration
Date other than pursuant to Section 4.1(c) hereof, the Company shall pay or
provide, as the case may be, the following payments and benefits upon such
termination:
(a) The Company shall pay to ▇▇▇▇▇▇▇, if able to be paid in a lump sum,
in a lump sum in cash within thirty days after the date of termination, and
otherwise, in accordance with
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the terms of the relevant plan or applicable law, any Accrued Obligations at
the date of termination.
(b) The Company shall pay to ▇▇▇▇▇▇▇, as severance pay, if any, a
lump sum in an amount determined by the Compensation Committee of the Board of
Directors.
(c) Nothing contained in this Section 5.5 shall be deemed to limit
in any way ▇▇▇▇▇▇▇'▇ and his spouse's right to receive the benefits referred
to in Sections 3.1 and 3.2 hereof.
6. CONFIDENTIAL INFORMATION, NON-COMPETITION, ETC.
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(a) ▇▇▇▇▇▇▇ shall not, without the prior written consent of the Company,
communicate or divulge (other than in the regular course of the Company's
business) to anyone other than the Company, its subsidiaries and those
designated by it, any confidential information, knowledge or data relating to
the Company or any of its subsidiaries or affiliates, or to any of their
respective businesses, obtained by ▇▇▇▇▇▇▇ before or during the Employment
Period from the Company or any of its subsidiaries, except to the extent (A)
▇▇▇▇▇▇▇ determines in good faith that it is in the best interest of the Company
to do so, (B) ▇▇▇▇▇▇▇ is compelled pursuant to an order of a court or other body
having jurisdiction over such matter to do so (in which case the Company shall
be given prompt notice of such intention to divulge and an opportunity to object
to such disclosure), or (C) such information, knowledge or data is public
knowledge or
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generally known within the Company's industry other than through improper
disclosure by ▇▇▇▇▇▇▇.
(b) Until the second anniversary of the date on which the Company makes
its final Base Salary payment to ▇▇▇▇▇▇▇ pursuant to this Agreement, ▇▇▇▇▇▇▇
will not (other than on behalf of the Company) directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, consultant or in
any other capacity whatsoever (other than as the holder of not more than
three percent of the total outstanding stock of a publicly held
company), engage in the business of developing, producing, marketing or
selling products developed or being developed, produced, marketed or
sold by the Company while ▇▇▇▇▇▇▇ was employed or retained as consultant
by the Company; or
(ii) recruit, solicit or induce, or attempt to induce, any
employee or employees of the Company (other than his personal secretary)
to terminate their employment with, or otherwise cease their
relationship with, the Company.
(c) If any restriction set forth in Section 6(b) hereof is found by any
court of competent jurisdiction or arbitrator to be unenforceable because it
extends for too long a period of time or over too great a range of activities or
in too broad a geographic area, it shall be interpreted to extend only
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over the maximum period of time, range or activities or geographic area as to
which it may be enforceable.
(d) The restrictions contained in Sections 6(a) and 6(b) hereof are
necessary for the protection of the business and goodwill of the Company and are
considered by ▇▇▇▇▇▇▇ to be reasonable to such purpose. ▇▇▇▇▇▇▇ agrees that any
breach of Sections 6(a) or 6(b) hereof will cause the Company substantial and
irreparable damage and therefore, in the event of any such breach, in addition
to such other remedies which may be available, the Company shall have the right
to seek specific performance and injunctive relief. In no event shall an
asserted violation of the provisions of Sections 6(a) or 6(b) hereof constitute
a basis for deferring or withholding any amounts otherwise payable to ▇▇▇▇▇▇▇
under this Agreement.
(e) Upon termination of ▇▇▇▇▇▇▇'▇ employment with the Company, ▇▇▇▇▇▇▇
shall promptly deliver to the Company all records, files, memoranda, notes,
data, reports, price lists, customer lists, plans, computer programs,
software, software documentation, laboratory and research notebooks and other
documents (and all copies or reproductions of such materials in his possession
or control) belonging to the Company.
7. NO MITIGATION; NO SET-OFF
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The Company agrees that if ▇▇▇▇▇▇▇'▇ employment with the Company is
terminated (including, without limitation, as provided in Section 4.1(c) hereof)
prior to the Employment
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Expiration Date for any reason whatsoever, ▇▇▇▇▇▇▇ is not required to seek other
employment or to attempt in any way to reduce any amounts payable to ▇▇▇▇▇▇▇ by
the Company pursuant to this Agreement. Further, the amount of any payment
provided for in this Agreement shall not be reduced by any compensation earned
by ▇▇▇▇▇▇▇ as the result of employment by another employer or otherwise; and the
amount of any benefit (other than the health, medical and dental benefits
provided for in Section 3.1 hereof) provided for in this Agreement shall not be
reduced by any benefit provided to ▇▇▇▇▇▇▇ as the result of employment by
another employer or otherwise. The Company's obligations to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder or under any other agreement shall not be affected by any
circumstances, including without limitation any set-off, counterclaim,
recoupment, defense or other right which the Company or any other person may
have against ▇▇▇▇▇▇▇.
8. LEGAL FEES
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If ▇▇▇▇▇▇▇ sues to collect or negotiates and reaches a settlement
for any part or all of the payments provided for hereunder (or otherwise
successfully enforces the terms of this Agreement) by or through a lawyer or
lawyers, the Company shall advance all reasonable costs of such collection or
enforcement, including reasonable legal fees and disbursements and other fees
and expenses which ▇▇▇▇▇▇▇ may incur, promptly after submission of
documentation reasonably acceptable to the Company in respect
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of such costs and expenses. All amounts paid by the Company shall promptly be
refunded to the Company if and when a court of competent jurisdiction issues an
unappealable order to the effect that the Company is entitled to have such sums
refunded.
9. SUCCESSORS; BINDING AGREEMENT
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(a) The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company to expressly assume and agree in writing
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 had taken place,
provided that ▇▇▇▇▇▇▇ need only be the senior executive officer with the
authority, powers and responsibilities set forth in Section 1.1 hereof with
respect to the subsidiary or subdivision which operates the business of the
Company as it exists on the date of such business combination. Failure of the
Company to obtain such express assumption and agreement at or prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle ▇▇▇▇▇▇▇ to compensation and benefits from the Company in the same
amount and on the same terms to which ▇▇▇▇▇▇▇ would be entitled hereunder if the
Company terminated his employment without Cause, except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the date of termination. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business
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or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
(b) The Company may not assign this Agreement except in connection with,
and to the acquiror of, all or substantially all of the business or assets of
the Company, provided such acquiror expressly assumes and agrees in writing to
perform this Agreement as provided in Section 9(a) hereof.
(c) This Agreement shall inure to the benefit of and be enforceable by
▇▇▇▇▇▇▇ and his personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If ▇▇▇▇▇▇▇ should die
while any amount would still be payable to him hereunder had he continued to
live, a11 such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to his devisee, legatee or other
designee or, if there is not such designee, to his estate.
(d) The parties agree that ▇▇▇▇▇▇▇'▇ current spouse is a third party
beneficiary of the provisions of Sections 3.1, 3.2 and Article 5 hereof, with
the right to enforce such provisions as fully as if she were a party to this
Agreement.
10. MISCELLANEOUS
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(a) Any notices or other communications required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly made
or given when hand delivered, one
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business day after being transmitted by telecopier (confirmed by mail) or sent
by overnight courier against receipt, or five days after being mailed by
registered or certified mail, postage prepaid, return receipt requested to the
party to whom such communication is given at the address set forth below, which
address may be changed by notice given in accordance with this Section:
If to the Company:
Schein Pharmaceutical, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Corporate Secretary
If to ▇▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
(b) If any provision of this Agreement shall be declared to be invalid
or unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof which shall remain in full force and
effect.
(c) No provision of this Agreement may be modified, waived or discharged
orally, but only by a waiver, modification or discharge in writing signed by
▇▇▇▇▇▇▇ and such officer as may be designated by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
in compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of
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similar or dissimilar provisions or conditions at the time or at any prior or
subsequent time. No agreements 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.
(d) This Agreement represents the entire agreement of the parties and
shall supersede any and all previous contracts, arrangements or understandings
between the Company and ▇▇▇▇▇▇▇ with respect to the subject matter hereof.
(e) This Agreement shall be construed, interpreted, and governed in
accordance with the laws of New York, without reference to rules relating to
conflicts of law.
(f) The section headings herein are for the purpose of convenience only
and are not intended to define or limit the contents of any section.
(g) The parties may sign this Agreement in counterparts, all of which
shall be considered one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first above written.
SCHEIN PHARMACEUTICAL, INC.
By: /s/
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Authorized Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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