EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of November 14, 2004, by and
between ▇▇▇▇▇▇▇ Company (the "Parent"), Agis Industries (1983) Ltd. (the
"Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Executive");
WITNESSETH THAT:
WHEREAS, the Executive is currently a senior executive officer of the
Company;
WHEREAS, as of the date hereof, the Company has entered into an Agreement
and Plan of Merger (the "Merger Agreement") pursuant to which the Company will
become a wholly-owned subsidiary of the Parent upon the Closing, as defined in
the Merger Agreement;
WHEREAS, the Parent, the Company and the Executive desire to enter into
this Agreement pertaining to the employment of the Executive by the Company
effective upon the date of the Closing (the "Effective Date");
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below and other good and valuable consideration, the receipt of which is
hereby acknowledged, the Parent, the Executive and the Company hereby agree as
follows:
1. Performance of Services. The Executive's employment with the Company
shall be subject to the following:
(a) Subject to the terms of this Agreement, the Company hereby agrees
to employ the Executive on the Effective Date in the position of President of
the Company, and the Executive hereby agrees to remain in the employ of the
Company. The Parent agrees to appoint the Executive, and the Executive agrees to
serve, as a member of the Parent's Executive Committee ("Executive Committee").
(b) While the Executive is employed by the Company, the Executive
shall devote his full time (reasonable sick leave and vacations excepted) and
best efforts, energies and talents to serving the Company.
(c) The Executive shall report to ▇▇▇▇▇ ▇▇▇▇▇ (the "Vice Chairman"),
or in the event ▇▇▇▇▇ ▇▇▇▇▇ ceases to be the Vice Chairman of the Board of
Directors of Parent, to his successor, and shall perform such duties as may be
assigned to him by the Vice Chairman or his successor. Such duties shall include
daily leadership and coordination of the overall operation of the following
businesses of the combined companies: (i) Pharmaceuticals outside North America
- currently in Israel and Europe, (ii) Global API - currently in Israel,
Germany, India and China, (iii) R&D and Regulatory in Israel and India, (iv)
Pharmaceutical business development, and (v) consumer products in Israel.
Current Company staff (except those in the United States), China joint venture
and India R&D - API shall directly report to the Executive. The Company may make
changes to the Executive's position, reporting line, authority, or
responsibilities provided
that the totality of the Executive's position, reporting line, authority, and
responsibilities is comparable to those typically attributable to members of the
Executive Committee.
(d) The Executive agrees that he shall perform his duties faithfully
and efficiently subject to the direction of the Board of Directors of Parent
(the "Board"). The Executive's duties shall include providing services for both
the Company and its Affiliates (as defined below), as determined by the Company
(as used herein, Company shall mean and include the Company and all of its
Affiliates).
(e) Notwithstanding the foregoing provisions of this paragraph 1,
during the Agreement Term, the Executive may devote reasonable time to pursue
activities other than those required under this Agreement, including activities
conducted by the Executive prior to the Effective Date, activities involving
professional, charitable, educational, religious and similar types of
organizations, speaking engagements, membership on the boards of directors of
other profit or not-for-profit organizations, and similar activities, to the
extent that such other activities do not, in the judgment of the Board, inhibit
or prohibit the performance of the Executive's duties under this Agreement or
conflict in any material way with the Company's or Parent's business.
(f) Subject to the terms of this Agreement, the Executive shall not be
required to perform services under this Agreement during any period that he is
Disabled (as defined in paragraph 3(b)).
(g) The Executive's place of employment shall be in Israel, provided
that the Company may require the Executive to travel, consistent with the
Executive's travel requirements prior to the Effective Date, outside Israel in
order to fulfill his duties with the Company.
(h) The Executive's position is a "senior managerial position", as
defined in the Israeli Work and Rest Hours Law, 1951, and requires a high level
of trust. Accordingly, the provisions of said law shall not apply to the
Executive and the Executive agrees that he may be required to work beyond the
regular working hours of the Company, for no additional compensation other than
as specified in this Agreement.
(i) This Agreement shall govern the terms and conditions of the
Executive's employment and any termination thereof from the Effective Date until
the third anniversary of the Effective Date (the "Agreement Term"). Thereafter,
the Agreement shall automatically be extended for additional 24-month periods,
unless either party to this Agreement provides notice of non-renewal to the
other party at least 120 days before the last day of the Agreement Term. The
term "Agreement Term" shall also include any renewal period under the foregoing
provisions of this paragraph 1(i). Following the expiration of the Agreement
Term, neither party shall have any further obligations under this Agreement,
other than obligations accruing or arising prior to such expiration. The portion
of the Agreement Term during which the Executive is employed by the Company is
hereinafter referred to as the "Employment Period".
(j) For purposes of this Agreement, the term "Affiliate" shall mean
any corporation, partnership, joint venture or other entity in which at least a
fifty percent interest in
such entity is owned, directly or indirectly, by the Company (or a successor to
the Company), including Parent and its Affiliates.
2. Compensation and Benefits. Subject to the terms of this Agreement,
during the Employment Period, the Company shall compensate the Executive for his
services as follows:
(a) Base Salary. The Executive shall receive base salary at an annual
rate of $325,000, payable in substantially equal monthly or more frequent
installments (the "Salary"). Commencing on or around October 2006, the
Executive's Salary shall be reviewed for increase at least annually by the Chief
Executive Officer, the Board or the Compensation Committee of the Board pursuant
to its review policies, if any, for members of the Executive Committee. Any
increase in Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement.
(b) Annual Bonus. During the Agreement Term, the Executive shall be
entitled to participate in the Management Incentive Bonus Plan of the Parent
(the "MIB") administered by the Compensation Committee of the Board, or any
successor annual bonus plan or arrangement generally made available to the
members of the Executive Committee. The Executive's participation in the MIB
shall generally be on terms and conditions applicable to the members of the
Executive Committee. The MIB shall provide the Executive with a target bonus
opportunity of not less than $200,000 for each fiscal year of the Parent
(prorated for the fiscal year in which the Effective Date occurs to reflect less
than a full year of employment), provided that the Executive shall be entitled
to a minimum bonus payment of $200,000 with respect to fiscal year 2005
(prorated for the fiscal year in which the Effective Date occurs to reflect less
than a full year of employment) and fifty percent of the target bonus (but in no
event less than $100,000) with respect to fiscal year 2006. Any bonus payable
under this paragraph 2(b) shall be paid in accordance with the terms of the MIB.
(c) Stock Awards. When the Company makes its next annual grant of
stock-based compensation to its senior management personnel, expected to occur
in or around October, 2005, the Executive shall be granted an award (the
"Initial Award") in the form of an option to purchase 40,000 shares of common
stock of the Parent or other stock-based award of equivalent value (on a
Black-Scholes basis) on such terms and conditions as generally applicable to
awards then granted to similarly situated senior executives. Annually thereafter
during the Employment Period the Executive shall be entitled to receive
additional annual stock-based awards in amounts and on terms and conditions no
less favorable than the annual awards granted in the applicable year to members
of the Executive Committee, provided that each such award shall have a value no
less than the value of the Initial Award. For the avoidance of doubt, the
Initial Award shall be in addition to any payments or awards made in respect of
Section 5.13 of the Merger Agreement.
(d) Managers' Insurance. During the Employment Period, the Company
shall, or shall cause one of its Affiliates to, continue the Managers' Insurance
(Bituach Menahalim) as in effect immediately prior to the Effective Date and
contribute thereto, on a monthly basis, 18.33% of the Executive's monthly
Salary, 8.33% of which shall be in respect of severance compensation (the
"Severance Component"), 5% of which shall be in respect of pension, and 5% of
which shall be deducted by the Company from the monthly payment of the
Executive's Salary
as the Executive's contribution to said Managers' Insurance. The parties
acknowledge and agree that in accordance with Section 14 to the Severance Pay
Law 5723-1963, the allocation to Managers' Insurance under this Section 2(d)
shall be in lieu of severance pay according to the Severance Pay Law that
Executive may be entitled to.
(e) Disability. During the Employment Period, the Company shall, or
shall cause one of its Affiliates to, continue the Disability Insurance (Ovdan
Kosher Avoda) as in effect immediately prior to the Effective Date and
contribute thereto, on a monthly basis, 2.5% of the Executive's monthly Salary.
(f) Education Fund. During the Employment Period, the Company shall,
or shall cause one of its Affiliates to, continue the Education Fund (Keren
Hishtalmut) as in effect immediately prior to the Effective Date and contribute
thereto, on a monthly basis, 7.5% of the Executive's monthly Salary, subject to
the Executive's contribution of an additional 2.5% of his monthly Salary. All
tax obligations related to the Education Fund shall be borne by the Executive.
(g) Recreation Funds. During the Employment Period, the Company shall,
or shall cause one of its Affiliates to, provide and pay the Executive
Recreation Funds (Dmei Havra'ah) at the rate required by law and regulations and
consistent with terms and conditions in effect immediately prior to the
Effective Date.
(h) Benefits and Perquisites. During the Employment Period, the
Company shall, or shall cause one of its Affiliates to, provide the Executive
with benefits and perquisites that are consistent with the benefits and
perquisites provided to the Executive immediately prior to the Effective Date.
(i) Executive Retention Plan. In the event the Company elects to
activate its Executive Retention Plan, the Executive shall participate in such
plan on terms and conditions no less favorable than the terms and conditions
applicable to the members of the Executive Committee.
(j) Vacation. During each calendar year during the Employment Period,
the Executive shall be entitled to 23 working days of vacation (or a pro rata
number of days for any partial year that occurs during the Employment Period)
determined in accordance with applicable employment laws of Israel and Company
policies.
(k) If it is determined that any payment made or benefit provided to
Executive pursuant to this Agreement in connection with the performance of his
duties hereunder is subject to any income tax payable under any United States
federal, state, local or other law, as a result of the duties performed
hereunder, then Executive shall receive a tax gross-up payment with respect to
such taxes. The tax gross-up payment will be an amount such that, after payment
of taxes on such payment, there remains a balance sufficient to pay the taxes
being reimbursed. Any such tax gross-up payments will be made at the time
Executive's US federal income tax return for the applicable calendar year is
filed.
3. Termination. The Executive's employment with the Company during the
Agreement Term may be terminated under the following circumstances.
(a) Death. The Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If the Executive becomes Disabled, the Company may
terminate his employment with the Company. For purposes of this Agreement, the
Executive shall be deemed to be "Disabled" if (i) he is eligible for disability
benefits under a Company long term disability plan, or (ii) he has a physical or
mental disability which renders him incapable, after reasonable accommodation,
of performing substantially all of his duties hereunder for a period of 180 days
(which need not be consecutive) in any 12-month period. In the event of a
dispute as to whether the Executive is Disabled, the Company may, at its
expense, refer him to a licensed practicing physician of the Company's choice
and the Executive agrees to submit to such tests and examination as such
physician shall deem appropriate. The determination of such physician shall be
final and binding on the Company and Executive.
(c) Cause. The Company may terminate the Executive's employment
hereunder immediately and at any time for Cause by written notice to the
Executive detailing the basis for the Cause termination. For purposes of this
Agreement, "Cause" means (i) gross negligence or willful and continued failure
by the Executive to substantially perform his duties as an employee of the
Company (other than any such failure resulting from incapacity due to physical
or mental illness), (ii) willful misconduct by the Executive which is
demonstrably and materially injurious to the Company, monetarily or otherwise,
(iii) the engaging by the Executive in egregious misconduct involving serious
moral turpitude to the extent that his creditability and reputation no longer
conforms to the standard of senior executives of the Company, (iv) the
commission by the Executive of a material act of dishonesty or breach of trust
resulting or intending to result in personal benefit or enrichment to the
Executive at the expense of the Company or (v) a material breach of this
Agreement. For purposes of this provision, no act or failure to act shall be
deemed "willful" unless done or omitted to be done not in good faith and without
reasonable belief that such action or omission was in the best interest of the
Company or Parent.
(d) Termination by Executive. The Executive may terminate his
employment hereunder at any time for any reason by giving the Company prior
written notice not less than 30 days prior to such termination.
(e) Mutual Agreement. This Agreement may be terminated at any time by
mutual written agreement of the parties.
(f) Termination by the Company without Cause. The Company may
terminate the Executive's employment hereunder at any time for any reason by
giving the Executive prior written notice not less than 30 days prior to such
termination; provided, however, termination by the Company shall be deemed to
have occurred under this paragraph 3(f) only if such termination by the Company
is not pursuant to paragraph 3(c) or 3(e).
(g) Termination by the Executive for Good Reason. The Executive may
terminate his employment hereunder immediately at any time for any Good Reason.
Good
Reason shall mean, without the Executive's consent, (i) any breach or violation
of Section 1(c) or the Parent or Company requesting or requiring the Executive
to relocate his principal place of employment outside the State of Israel, (ii)
the failure by the Company, or if applicable the Parent, to pay the Executive
any portion of his current compensation within ten (10) business days of the
date such compensation is due or otherwise declared payable, (iii) the failure
by the Company, or if applicable the Parent, to continue any incentive
compensation plan in which the Executive participates which is material to his
compensation, unless an equitable substitute plan or alternative plan is made
available to the Executive; or (iv) the failure by the Company or Parent to
obtain a satisfactory agreement from any successor to the business of the
Company or Parent to assume and agree to perform this Agreement.
(h) Date of Termination. "Date of Termination" means the last day that
the Executive is employed by the Company under the terms of this Agreement under
circumstances in which his employment is terminated in accordance with one of
the foregoing provisions of this paragraph 3.
4. Rights Upon Termination.
(a) If the Executive's Date of Termination occurs during the Agreement
Term for any reason, the Company shall:
(i) Pay the Executive's Salary for the period ending on the Date of
Termination.
(ii) Make a payment in respect of unused vacation days, as determined
in accordance with Company policy as in effect from time to time.
(iii) Make any other payments or provide benefits pursuant to any
employee benefit plans or arrangements adopted by the Company, to the extent
such payments and benefits are earned and vested as of the Date of Termination,
or are required by law to be offered for periods following the Executive's Date
of Termination.
(iv) Transfer to the Executive, within 30 days following Date of
Termination, any and all allocations accrued under his Managers' Insurance.
The amounts payable under clauses (i) and (ii) above shall be paid in a lump sum
as soon as practicable following such Date of Termination and any amounts
payable under clause (iii) and (iv) above shall be paid in accordance applicable
law and with the terms of the applicable plan or arrangement (the amounts and
benefits, referred to in clauses, (i), (ii), (iii) and (iv) above, being
referred to as "Accrued Obligations").
(b) If, during the Agreement Term, the Executive's employment is
terminated by the Company without Cause or if the Executive terminates his
employment for Good Reason, then in addition to the Accrued Obligations, the
Company shall:
(i) Continue to pay to the Executive, an amount equal to the product
of (A) the sum of (i) the Executive's Salary and (ii) the higher of (1) the
Executive's target bonus for year in
which Date of Termination occurs or (2) the Executive's target bonus for the
year immediately preceding the year in which Date of Termination occurs (or, if
the Date of Termination occurs during Parent's fiscal year 2005, the target
bonus for year immediately preceding the Effective Date) multiplied by (B) the
number of full and partial years remaining in the Agreement Term after the Date
of Termination (but in no event less than one year and determined without regard
to the actual Date of Termination) (such period being referred to as the
"Severance Period").
(ii) Continue to make contributions contemplated by Sections 2(d),
(e), (f) and (g) for the duration of the Severance Period.
(iii) Notwithstanding anything in the 2003 Long Term Incentive Plan
(or any successor plan) to the contrary, provide for the full vesting, as of the
Date of Termination, of all then unvested restricted stock awards.
(iv) Notwithstanding anything in the 2003 Long Term Incentive Plan (or
any successor plan), vest the Executive, as of Date of Termination, in that
number of unvested stock options which would have vested during the 24 month
period following the Date of Termination. The Executive shall be entitled to
exercise his options at any time prior to the earlier of (A) the date which is
30 days after the date which is 24 months after such Date of Termination, or
(ii) the expiration of the respective terms of the options.
(c) Notwithstanding the terms of the MIB plan, if the Executive's Date
of Termination occurs under paragraph 3(a) (relating to death), paragraph 3(b)
(relating to being Disabled), or, subject to the Executive's execution of a
release of claims in a form presented by the Company, paragraph 3(f)
(termination without Cause) or paragraph 3(g) (termination for Good Reason),
then in addition to the amounts payable in accordance with paragraph 4(a) and
4(b), the Executive will be entitled to a pro rata bonus payment for the year in
which such Date of Termination occurs, which shall be an amount equal to the
product of (A) the bonus the Executive would have received for the fiscal year
which includes his Date of Termination if he had remained employed by the
Company until the end of such year, multiplied by (B) a fraction, the numerator
of which is the number of days in the fiscal year preceding the Executive's Date
of Termination and the denominator of which is 365. Such pro rata bonus shall be
payable in a lump sum payment on the next installment date on which bonus
payments are made to participants in the MIB plan following the end of the
fiscal year to which such bonus relates.
(d) Notwithstanding any provision of this Section 4 to the contrary,
the Company shall have no obligation to transfer or release the Severance
Component of the Managers' Insurance if there occurs an Israeli labor court
ruling that denies the Executive's right to severance payment by pursuant to
Sections 17 to the Israeli Severance Payment Law 5723 - 1963.
5. Non-Renewal. In the event this Agreement terminates due to non-renewal
of the Agreement Term, then, notwithstanding anything in the 2003 Long Term
Incentive Plan (or any successor plan) to the contrary, the Executive shall be
entitled to vest (whether or not his employment terminates), as of the date of
the notice of non-renewal, in that number of unvested stock options and
restricted stock award which would have vested during the 24 month period
following the end of the Agreement Term. The Executive shall be entitled to
exercise his options at any time prior to the earlier of (A) the date which is
30 days after the date which is 24 months after such Date of Termination, or
(ii) the expiration of the respective terms of the options.
6. Accrued Payments. Upon the Effective Date, the Executive shall be
entitled, to the extent not yet paid, (i) the payments contemplated by Schedule
2.2(c) of the Merger Agreement, (ii) all amounts (other than the amounts
contemplated by Section 5 of the Amendment, dated December 3, 2000, to the
Employment Agreement between the Executive and Agis Industries (1983) Ltd. and
its affiliates (the "Prior Agreement")) due to the Executive under the Prior
Agreement, including without limitation, the amounts due under the Managers'
Insurance, Education Funds, unused vacation, as if the Executive's employment
had been terminated without cause as of the Effective Date, in each case, in
accordance with applicable law and the terms and conditions of the relevant
insurance policies and (iii) a pro rata bonus with respect to the portion of the
performance period to the Effective Date, determined in accordance with the
provisions of the Prior Agreement. As of the Effective Date, the Parent shall
cause the Company to release and transfer to the Executive all amounts deposited
in the Mangers' Insurance Fund and the Education Fund, in each case, in
accordance with applicable law and the terms and conditions of the relevant
insurance policies.
7. Confidentiality and Noncompetition. In consideration for the payments
and benefits contemplated by Section 4, the Executive acknowledges and agrees
that simultaneous with the execution of this Agreement, he will be required to
execute and comply with the Noncompetition and Nondisclosure Agreement in the
form attached to this Agreement as Exhibit A.
8. Nonalienation. The interests of the Executive under this Agreement are
not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by the Executor's
creditors or beneficiaries.
9. Successors. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business.
10. Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, or sent
by facsimile or prepaid overnight courier to the parties at the addresses set
forth below (or such other addresses as shall be specified by the parties by
like notice):
to the Parent:
Perrigo Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: General Counsel
Director of Human Resources
To the Company:
Agis Industries (1983) Ltd.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Attn: Vice Chairman
To the Executive:
▇▇▇▇▇▇ ▇▇▇▇▇, at the most recent address shown in the records of the
Company.
11. Severability. The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified).
12. Waiver of Breach. No waiver of any party hereto of a breach of any
provision of this Agreement by any other party will operate or be construed as a
waiver of any subsequent breach by such other party. The failure of any party
hereto to take any action by reason of such breach will not deprive such party
of the right to take action at any time while such breach continues.
13. Amendment. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing without the consent of any other person. So
long as the Executive lives, no person, other than the parties hereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
14. Survival of Agreement. Except as otherwise expressly provided in this
Agreement, the rights and obligations of the parties to this Agreement shall
survive the termination of the Executive's employment with the Company.
15. Entire Agreement. Except with respect to the Prior Agreement which
shall terminate on the satisfaction of the Company's and Parent's obligations
contemplated by Section 6, this Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior and contemporaneous agreements, if any, between the Executive and the
Company or its Affiliates relating to the subject matter hereof.
16. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Israel without
regard to principals of conflict of laws. Any proceeding related to or arising
out of this Agreement shall be commenced, prosecuted or continued in Israel.
Notwithstanding the foregoing, any controversy relating to
provisions of Section 2(b) and 2(c) shall be governed by the laws of the
jurisdiction set forth in the applicable award document.
17. Acknowledgement by Executive. The Executive represents to the Company
that he is knowledgeable and sophisticated as to business matters, including the
subject matter of this Agreement, that he has read this Agreement and that he
understands its terms. The Executive acknowledges that, prior to assenting to
the terms of this Agreement, he has been given a reasonable time to review it,
to consult with counsel of his choice, and to negotiate at arm's-length with the
Company as to the contents. The Executive and the Company agree that the
language used in this Agreement is the language chosen by the parties to express
their mutual intent, and that no rule of strict construction is to be applied
against any party hereto. Executive further agrees that, upon the payments of
any amounts under Section 4, 5, or 6, as applicable, that the Executive shall
deliver such releases and acknowledgements as the Parent shall reasonably
request in order to confirm that the amounts paid under such provisions are
exclusive of any amounts the Executive may be entitled under Israeli Statutory
Provisions governing severance, Mangers' Insurance, Education Fund, and
Recreation Fund.
18. Conditions to Effectiveness. Notwithstanding anything in this Agreement
to the contrary, this Agreement shall not be effective until the Closing. In the
event the Closing does not occur, this Agreement shall not be valid, binding and
enforceable against any of the parties hereto.
19. Indemnification. Parent and the Company shall provide the Executive
with indemnification and directors and officers insurance to the same extent
that the Parent provides such protection to its Chief Executive Officer and
Chairman.
20. No Mitigation. The Company's, or if applicable the Parent's obligation
to make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company or Parent
may have against the Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement and, such amounts shall not be reduced whether or not the Executive
obtains other employment.
IN WITNESS WHEREOF, the Executive has hereunto set his hand, and Parent and
the Company has caused these presents to be executed in its name and on its
behalf, as of the date above first written.
EXECUTIVE ▇▇▇▇▇▇▇ COMPANY
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- --------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ Its Chairman, President and Chief
Executive Officer
Agis Industries (1983) Ltd.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Its President and Chairman
EXHIBIT A
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT ("Agreement") entered into
on November 14, 2004 by and between PERRIGO COMPANY, a Michigan corporation, for
and in behalf of itself and each of its subsidiary and affiliated companies (and
upon the consummation of the transactions contemplated by the Merger Agreement
(as defined in the Employment Agreement) including Agis Industries (1983) Ltd.)
(collectively referred to as "Perrigo" or the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇
(referred to as "Employee").
WITNESSETH:
WHEREAS ▇▇▇▇▇▇▇'▇ special competence in its various fields of endeavor is
the secret of its growth, and provides the source of both career opportunities
and security for employees throughout the company. Such growth depends to a
significant degree on ▇▇▇▇▇▇▇'▇ confidential, proprietary information. This is
information that is not generally known to others and includes more and better
information than our competitors have about research, development, production,
marketing and management in the manufacture, preparation, handling, treatment,
storage, sale, distribution, shipment and use of products for the Store and
Value Brand Product (as herein defined) ("Company Business"). To obtain such
information and use it successfully, Perrigo spends considerable sums of money
in product development, the development of marketing methods, training its
employees, and service to its customers; and
WHEREAS Employee has entered into an employment agreement with Perrigo
dated as of the date hereof (the "Employment Agreement") pursuant to which
Employee will become a key employee of Perrigo. In connection with providing
such employment services, Employee has obtained or will obtain access to
sensitive information regarding the Company's Business and its customers. The
parties agree that improper disclosure or use of that information will cause
serious and irreparable harm to the company.
NOW, THEREFORE, in consideration of ▇▇▇▇▇▇▇'▇ agreement to employ Employee
and provide the compensation and benefits as set forth in the Employment
Agreement and for other good and valuable consideration, the receipt of which is
acknowledged, the parties agree as follows:
1. Restriction on Competing Activities. Beginning on the date the Employee
commences employment under the Employment Agreement and ending on the later of
(i) end of the Agreement Term (as defined in the Employment Agreement) and (ii)
first anniversary of the Employee's Date of Termination (as defined in the
Employment Agreement) (the "Non-Competition Period"), Employee will not,
directly or indirectly, alone or as a partner, officer, director, owner,
employee, or consultant of any business or other entity, be engaged in any
business or other enterprise that competes, directly or indirectly, in any way
with the Company Business. In addition to its plain meaning and understanding,
"compete in any way with the Company Business" shall also specifically include
engaging in any way in the production, distribution or sale of any products to
the Store and Value Brand Products that are similar to or
competitive with those now or hereafter produced, distributed or sold by
Perrigo. As used in this Agreement, "Store and Value Brand Products" means those
products that are supplied by a manufacturer or marketer through channels of
distribution (including but not limited to, wholesalers, distributors and
retailers) that bear either (i) a label or brand name that is used exclusively
by the wholesaler, distributor or retailer, or (ii) a label or brand name that
is not regularly advertised by national broadcast, print, direct mail or other
media for the purpose of establishing brand name recognition of the
manufacturer, marketer and/or distributor with the general public. Employee also
agrees that during the Non-Competition Period, he will not, directly or
indirectly, either for himself or any other person, solicit or induce, or
attempt to solicit or induce, any individual who is an employee, independent
contractor, supplier, or customer of Perrigo to terminate his, her, or its
business relationship with the company or in any way interfere with or disrupt
the company's relationship with any of its employees, independent contractors,
suppliers, or customers.
2. Nondisclosure. Employee will not during or at any time after the
termination of employment with Perrigo use, divulge, or convey to others any
secret or confidential information, knowledge or data of Perrigo or that of
third parties obtained by Employee during the period of employment with Perrigo.
Such secret or confidential information, knowledge or data includes, but is not
limited to, secret or confidential matters:
(a) of a technical nature such as, but not limited to, methods, know-how,
formulas, compositions, processes, discoveries, machines, inventions, computer
programs and similar items or research projects,
(b) of a business nature such as, but not limited to, information about
costs, purchasing, profits, marketing, sales or lists of customers, and
(c) pertaining to future developments such as, but not limited to, research
and development or future marketing or merchandising.
3. Inventions and Patents. Employee acknowledges that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable) which
relate to ▇▇▇▇▇▇▇'▇ actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Employee while providing services to the Perrigo ("Work Product") belong
to Perrigo. Employee shall promptly disclose such Work Product to ▇▇▇▇▇▇▇'▇
General Counsel and perform all actions requested by Perrigo (whether during or
after Employee's period of employment) to establish and confirm such ownership
(including, without limitation, executing assignments, consents, powers of
attorney and other instruments).
4. Return of Company Property. Upon termination of employment with Perrigo,
or at any other time at ▇▇▇▇▇▇▇'▇ request, Employee agrees:
(a) To deliver promptly to Perrigo all manuals, letters, notes, papers,
books, reports, sketches, computer data or disks, files and programs, price
lists, customer files, memoranda, contracts and agreements, business and
marketing plans, product formulations, manufacturing
processes, procedures and methods (including equipment specifications and
drawings), vendor lists, vendor files, customer lists, stored or recorded
documents, and all other materials and copies thereof relating in any way to the
Company's Business and in any way obtained by Employee during the period of
employment with Perrigo which are in Employee's possession or under his control.
Employee further agrees that he will not make or retain any copies of any of the
foregoing and will so represent to Perrigo upon termination of employment.
(b) To confirm to Perrigo that all of ▇▇▇▇▇▇▇'▇ computer records, files and
programs have first been turned over to Perrigo and then deleted or erased from
all computer equipment owned, leased or used by Employee.
(c) To return to Perrigo all personal property provided for Employee's use
during his employment with Perrigo including, but not limited to, automobiles,
computers and related equipment, telephones, credit cards, security cards and
identifications, keys and tools.
5. Remedies. Employee acknowledges and agrees that monetary damages for his
breach of any provision of this Agreement would be an inadequate remedy and that
the company would not have an adequate remedy at law for such breach.
Accordingly, Employee agrees that, in addition to all other rights and remedies
available to the company to enforce its rights pursuant to this Agreement, the
company shall, without the necessity of proving irreparable harm or of posting a
bond, be entitled to such equitable relief from any court with proper
jurisdiction, including, but not limited to, an injunction, a temporary
restraining order, or an order for specific performance, as may be necessary to
enforce or prevent a violation (whether anticipatory, continuing, or future) of
any provision of this Agreement. If Employee breaches any provision of this
Agreement, he shall pay all expenses, including court costs and actual attorney
fees, incurred by the company in enforcing such provision.
6. Enforceability. The unenforceability of any provision or portion of any
provision of this Agreement shall not affect the enforceability of the remaining
provisions or the remainder of any provision of this Agreement. If at any time a
court determines that any restrictive covenant contained in this Agreement is
unreasonable, the parties agree that the maximum restriction permitted by law
shall be substituted for the stated restriction and that such substitution shall
govern this Agreement as if originally part of this Agreement.
7. Binding Effect. This Agreement and the rights and obligations of Perrigo
hereunder shall inure to the benefit of and be binding upon Perrigo and its
successors and assigns.
8. Entire Agreement Modifications. This Agreement contains the entire
agreement between the parties with respect to its subject matter and supersedes
all other agreements, whether oral or written, between the parties regarding
such subject matter. This Agreement may be modified or terminated only through a
written instrument signed by each of the parties.
9. Waiver. The waiver by either party of the enforcement or the breach of
any provision of this Agreement shall not operate or be construed as a
subsequent or continuing waiver of the enforcement or the breach of any
provision. The failure by either party to insist upon strict compliance of any
provision of this Agreement shall not be deemed a waiver of such provision.
No waiver shall be valid unless in writing and signed by the party giving the
waiver.
10. Governing Law. This Agreement shall be governed by laws of Israel,
provided, however, that with respect to acts which occur in the United States
("US Based Conduct") which would constitute a breach of this Agreement disputes
relating to such acts shall be governed by and construed and enforced in
accordance with the internal laws of the State of Michigan without regard to
principals of conflict of laws with respect to any acts occurring in the United
States. Any proceeding related to or arising out of this Agreement relating to
US Based Conduct shall be commenced, prosecuted or continued in the Circuit
Court in Kent County, Michigan located in Grand Rapids, Michigan or in the
United Stated District Court for the Western District of Michigan, and in any
appellate court thereof. Employee accepts, with respect to US Based Conduct,
generally and unconditionally, the exclusive jurisdiction of the aforesaid
courts and waives any defense of forum non conveniens, and irrevocably agrees to
be bound by any final and nonappealable judgment rendered thereby in connection
with this Agreement. Employee further irrevocably consents, with respect to US
Based Conduct, to the service of process out of any of the aforementioned courts
in any such action or proceeding by the mailing of copies thereof via overnight
courier, such service to become effective fourteen calendar days after such
mailing.