EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 7th day of February, 2001 between Barr
Laboratories, Inc., a New York corporation having its principal executive
offices at 300 Corporate Drive, Building #10, Bradley Corporate Park, Blauvelt,
New York 10913 (the "Company"), and Catherine F. Higgins (the "Employee").
WITNESSETH:
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 for
the period and on the other 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 remain in the employ of the Company, during the term of this Agreement
and on the other terms and conditions hereafter set forth.
2. Term. The term of this Agreement shall commence on February 7, 2001 (the
"Commencement Date") and shall terminate at the close of business on the third
anniversary of the Commencement Date 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") which is six months
before the third anniversary of the Commencement Date and on the date (also an
"Extension Effective Date") which is six months before each subsequent
anniversary of the Commencement Date, for successive periods of twelve months
each, unless either party shall have given written notice to the other party, in
the manner set forth in paragraph 8(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. Positions and Responsibilities; Place of Performance.
(a) Throughout the term of this Agreement, the Employee agrees to
remain in the employ of the Company, and the Company agrees to employ the
Employee, as its Vice President, Human Resources, reporting to the Chief
Executive Officer of the Company (the "CEO") and/or the President and Chief
Operations Officer of the Company (the "COO"). As the Vice President, Human
Resources of
the Company, the Employee shall be responsible for managing and supervising, and
shall have responsibility for the day-to-day conduct of, the human resources
function of the Company, including labor relations, subject to the authority of
the Board of Directors of the Company (the "Board), the Chief Executive Officer
of the Company (the "CEO") and the COO, and shall have all of the powers,
authority, duties and responsibilities usually incident to the position and role
of Vice President, Human Resources, and shall perform such other reasonable
duties, consistent with the position of Vice President, Human Resources, as may
lawfully be assigned to her by the Board, the CEO and the COO.
(b) In connection with her employment by the Company, the Employee
shall be based at the principal executive offices of the Company in Rockland
County, New York and agrees to travel, to the extent reasonably necessary to
perform her duties and obligations under this Agreement, to Company facilities
and other destinations elsewhere.
(c) During the term of this Agreement, the Employee shall serve the
Company on an exclusive basis and shall devote all her business time, attention,
skill and efforts to the faithful performance of her duties hereunder; provided
that the Employee may engage in community service and charitable activities that
do not interfere with the performance of her duties and responsibilities
hereunder.
4. Compensation. For all services rendered by the Employee in any capacity
during the term of this Agreement, and for her undertakings with respect to
confidential information set forth in paragraph 6 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 one hundred and eighty thousand dollars ($180,000.00),
with such increases in such rate, if any, as the Compensation Committee of the
Board may approve from time to time during the term of this Agreement (the
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 an award in
accordance with the terms and conditions of such plan, for each fiscal year of
the Company that commences or terminates during the term of this Agreement, of
up to 40% of the Base Salary earned during such year (or such higher percentage
as the Board or a committee of the Board may prescribe from time to time during
the term of this Agreement), it being understood that any award for the fiscal
year of the Company in which the term of this Agreement commences or 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 that any award
for the fiscal year of the Company in which the term of this Agreement
terminates pursuant to the terms
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hereof shall be made at the same time as awards (if any) are made to other
participants with respect to such fiscal year;
(c) participation in the Company's stock incentive plan 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 in accordance with the Company's automobile policy
applicable to officers on the date of this Agreement;
(e) participation in all Company 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 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 from amending or terminating
any such plan at any time. 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 without Good Cause or by the Employee
for Good Reason.
(i) If during the term of this Agreement the Employee's
employment with the Company is terminated by the Company without Good Cause or
is terminated by the Employee for Good Reason other than at or after the
expiration of the term of this Agreement as the same may have been extended in
accordance with the provisions of paragraph 2 above, the Company, subject to
compliance by the Employee with the provisions of paragraph 6 below, relating to
confidential information, shall, as liquidated damages, and as additional
consideration for the Employee's undertakings under paragraph 6 below, pay the
Employee a lump sum amount of money equal to 1.5 times the Employee's Base
Salary.
(ii) If the term of this Agreement as the same may have been
extended in accordance with the provisions of paragraph 2 above is not extended
or further extended because the Company gives written notice of non-extension to
the Employee as provided in paragraph 2 above, and the Company does not have
Good Cause for termination of the Employee's employment at the time of giving
such notice, then the Company, subject to fulfillment by the Employee of her
obligations under this Agreement during the balance of the term and her
compliance with the provisions of paragraph 6
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below, relating to confidential information, shall, as non-renewal compensation,
and as additional consideration for the Employee's undertakings under this
Agreement including paragraph 6 below, pay the Employee a lump sum amount of
money equal to 1.0 times the Employee's Base Salary. The Company shall pay such
amount upon the expiration of the term that is in effect at the time the Company
gives such written notice of non-extension to the Employee.
(iii) 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. Subparagraphs 5(a)(i) 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 1.5 times the Employee's Base
Salary under such subparagraphs, either individually or collectively.
(b) Termination by the Company 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 for Good Cause or by the
Employee without Good Reason, the Employee shall not be entitled to receive any
compensation under paragraph 4 above acruing after the date of such termination
or any payment under paragraph 5(a) above. The provisions of this paragraph 6(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.
(c) Good Cause Defined. For purposes of this Agreement, the Company
shall have "Good Cause" to terminate the Employee's employment during the term
of this Agreement if:
(i) the Employee fails to substantially perform her duties
hereunder for any reason or fails to devote substantially all her business time
exclusively to the affairs of the Company, and such failure is not discontinued
within a reasonable period of time, in no event to exceed 30 days, after the
Employee receives written notice from the Company 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
(iii) the Employee is grossly negligent or engages in willful
misconduct or insubordination in the performance of her duties hereunder; or
(iv) the Employee breaches her obligations under paragraph 6
below, relating to confidential information.
(d) Good Reason Defined. For purposes of this Agreement, the Employee
shall have "Good Reason" to terminate her employment during the term of this
Agreement only if:
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(i) the Company fails to provide compensation or benefits that
the Company is obligated to provide under paragraph 4 above and the failure is
not remedied within 30 days after the Company receives written notice from the
Employee of such failure; or
(ii) the Company assigns the Employee duties, responsibilities or
reporting relationships not contemplated by paragraph 3 above without her
consent, or limits her duties or responsibilities contemplated by paragraph 3
above in any respect materially detrimental to her, and in either case the
situation is not remedied within 30 days after the Company receives written
notice from the Employee of the situation; or
(iii) she is removed from, or not elected or reelected to, the
position of Vice President, Human Resources of the Company, and the Company does
not have Good Cause for doing so; or
(iv) the Company relocates her office outside of either the
Company's principal executive offices or the greater New York City metropolitan
area without her written consent (given in a personal rather than representative
capacity) and the situation is not remedied within 30 days after the Company
receives written notice from the Employee of the situation.
6. Confidential Information. The Employee agrees not to disclose, either
while in the Company's employ or at any time thereafter, to any person not
employed by the Company, or not engaged to render services to the Company,
except with the prior written consent of an authorized officer of the Company or
as necessary or appropriate for the performance of her duties hereunder, any
confidential information obtained by her while in the employ of the Company,
including, without limitation, information relating to any of the inventions,
processes, formulae, plans, devices, compilations of information, research,
methods of distribution, suppliers, customers, client relationships, marketing
strategies or trade secrets of the Company or any subsidiary thereof; provided,
however, that this provision shall not preclude the Employee from use or
disclosure of information known generally to the public or of information not
considered confidential by persons engaged in the businesses conducted by the
Company or any subsidiary thereof, or from disclosure required by law or court
order. The Employee also agrees that upon leaving the Company's employ she will
not take with her, without the prior written consent of an authorized officer of
the Company, and he will surrender to the Company, any record, list, drawing,
blueprint, specification or other document or property of the Company or any
subsidiary thereof, together with any copy or reproduction thereof, mechanical
or otherwise, which is of a confidential nature relating to the Company or any
subsidiary thereof, or without limitation, relating to its or their methods of
distribution, suppliers, customers, client relationships, marketing strategies
or any description of any formulae or
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secret processes, or which was obtained by her or entrusted to her during the
course of her employment with the Company.
7. Severability
(a) In the event that any provision of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement not so invalid or unenforceable shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law; and
(b) Any provision of this Agreement which may for any reason be invalid
or unenforceable in any jurisdiction shall remain in effect and be enforceable
in any jurisdiction in which such provision shall be valid and enforceable.
8. General Provisions.
(a) No right or interest to or in any payments to be made under this
Agreement shall be subject to anticipation, alienation, sale, assignment,
encumbrance, pledge, charge or hypothecation or to execution, attachment, levy
or similar process, or assignment by operation of law. All payments to be made
by the Company hereunder shall be subject to the withholding of such amounts as
the Company may determine it is required to withhold under the laws or
regulations of any governmental authority, whether foreign, federal, state or
local.
(b) To the extent that the Employee acquires a right to receive
payments from the Company under this Agreement, such right shall be no greater
than the right of an unsecured general creditor of the Company. All payments to
be made hereunder shall be paid from the general funds of the Company and no
special or separate fund shall be established and no segregation of assets shall
be made to assure payment of any amount hereunder.
(c) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of laws of that State.
(d) This Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and the Employee, her heirs, devisees,
distributees and legal representatives.
(e) Any notice or other communication to the Company pursuant to any
provision of this Agreement shall be given in writing and will be deemed to have
been delivered:
(i) when delivered in person to the Corporate Secretary or Chief
Executive Officer of the Company; or
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(ii) one week after it is deposited in the United States
certified or registered mail, postage prepaid, addressed to the Corporate
Secretary of the Company at 300 Corporate Drive, Building #10, Bradley Corporate
Park, Blauvelt, New York 10913 or at such other address of which the Company may
from time to time give the Employee written notice in accordance with paragraph
8(f) below.
(f) Any notice or other communication to the Employee pursuant to any
provision of the Agreement shall be given in writing and will be deemed to have
been delivered:
(i) when delivered to the Employee in person, or
(ii) one week after it is deposited in the United States
certified or registered mail, postage prepaid, addressed to the Employee at her
address as it appears on the records of the Company or at such other address of
which the Employee may from time to time give the Company written notice in
accordance with paragraph 8(e) above.
(g) No provision of this Agreement may be amended, modified or waived
unless such amendment, modification or waiver shall be agreed to in a writing
signed by the Employee and an authorized officer of the Company.
(h) This instrument contains the entire agreement of the parties
relating to the subject matter of this Agreement and supersedes and replaces all
prior agreements and understandings with respect to such subject matter, and the
parties have made no agreements, representations or warranties relating to the
subject matter of this Agreement which are not set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BARR LABORATORIES, INC.
By:
[SEAL] -----------------------
Attest:
-----------------------
Secretary
--------------------------
Employee
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Employment Agreement - Barr Laboratories Inc. and Catherine F. Higgins
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