{"id":40330,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/restated-agreement-duramed-pharmaceuticals-inc-and-e-thomas.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"restated-agreement-duramed-pharmaceuticals-inc-and-e-thomas","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/restated-agreement-duramed-pharmaceuticals-inc-and-e-thomas.html","title":{"rendered":"Restated Agreement &#8211; Duramed Pharmaceuticals Inc. and E. Thomas Arington"},"content":{"rendered":"<pre>                    AMENDED AND RESTATED EMPLOYMENT AGREEMENT\n\n                  THIS AMENDED AND RESTATED AGREEMENT, made as of the 29th day\nof March, 2002, by and between Duramed Pharmaceuticals, Inc., a Delaware\ncorporation (the \"Company\"), and E. Thomas Arington (the \"Employee\"),\n\n                              W I T N E S S E T H:\n\n                  WHEREAS, an Amended and Restated Employment Agreement was\nentered into between the Company and the Employee on July 18, 2000 (the\n\"Agreement\"); and\n\n                  WHEREAS, following the change in control that occurred on\nOctober 24, 2001, pursuant to the Agreement and Plan of Merger dated June 29,\n2001, by and among Barr Laboratories, Inc. (\"Barr\") and the Company (\"Merger\"),\nthe Company and Employee desire to further amend and restate the Agreement (the\nAgreement as amended and restated herein being hereafter referred to as the\n\"Amended Agreement\"); and\n\n                  WHEREAS, the Company is prepared to pay the Employee a sum of\nFive Hundred Thousand Dollars ($500,000) in order to incent him to further defer\nthe exercise of his right to terminate his employment pursuant to the last\nsentence of Section 6(d) of the Agreement until after June 30, 2002, a sum of\nTwo Million Dollars ($2,000,000) for entering into this Amended Agreement and in\nlieu of severance pay otherwise payable under the Agreement, and a sum of One\nMillion Two Hundred Thousand Dollars ($1,200,000) to agree to certain\nrestrictions on his activities during the Employment Period and thereafter that\nare contained herein;\n\n                  NOW THEREFORE, in consideration of the foregoing premises and\nthe mutual covenants hereinafter set forth, IT IS AGREED that the Agreement is\nhereby amended and restated in its entirety to read as follows:\n\n\n\n                                  Page 1 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\n\n                  (1) Continued Employment. The Company recognizes that, under\nSection 6(d) of the Agreement as modified by that certain letter agreement dated\nJune 29, 2001 between the Employee and Barr, the Employee has the right to\nterminate his employment for any reason during the six month period beginning on\nApril 1, 2002 and receive certain payments and benefits in connection with such\nemployment termination. The Company wishes to induce the Employee to both (a)\nfurther defer any termination by him of his employment until after June 30, 2002\nat the earliest, and (b) remain in the employ of the Company thereafter until\nJune 30, 2004. To those ends, (i) the Company agrees to pay the Employee\n$500,000 immediately upon signing this Amended Agreement and the Employee hereby\nagrees to remain an employee of the Company through June 30, 2002 on the terms\nprovided herein, and (ii) the Company hereby agrees to continue the employment\nof Employee pursuant to the terms provided herein until June 30, 2004 (the\nperiod of time from the date of this Amended Agreement to June 30, 2004 being\nhereafter referred to as the \"Employment Period\", whether or not the Employee in\nfact remains employed by the Company throughout that period). The Employee\nrecognizes and agrees that the aforementioned payment is being made in\nconsideration of his continued employment through June 30, 2002 and that if he\nterminates his employment on or prior to that date, or if his employment shall\nbe terminated for Cause on or prior to that date, he will be obligated to repay\nthe portion of such payment that has not been earned in accordance with\nparagraph 7(b) below.\n\n                  (2) Duties. Under this Amended Agreement the Employee shall be\nemployed in the position of Special Transition Employee. In such employment, the\nEmployee's duties shall consist of aiding in the facilitation of the Merger,\nincluding in particular facilitating the transition to Barr executives of\nresponsibility for, and facilitating the resolution of, matters that commenced\nprior to the Merger and other matters concerning which the Employee possesses\nspecial knowledge, assisting in litigation, and all other things reasonably\nrequested by the Company. However, no change in the Employee's location of\nemployment to outside the Cincinnati, Ohio\n\n                                  Page 2 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\narea, or in the Employee's title, shall be made without the prior written\nconsent of the Employee. The Employee shall have the powers necessary to perform\nthe duties assigned and shall be provided such supporting staff, secretarial\n(including the services of Susan Falick until June 30, 2002) and other\nassistance, office space and accouterments as shall be necessary and appropriate\nin light of the duties assigned. After the Employment Period, Employee shall\nmake himself available to the Company as a consultant on an as needed basis for\nspecific projects related solely to the transition following the Merger,\nprovided such consulting does not interfere with his other business and\nemployment commitments at the time, with any compensation for such consultation\nto be determined by mutual agreement of the parties. The Employee shall be\nentitled to a minimum of paid vacation annually equal to that which he was\nentitled immediately prior to the Change in Control, and shall take any vacation\naccrued during the Employment Period prior to terminating employment. Subject to\nthe foregoing, the Employee shall have the sole discretion to determine the time\nand intervals of such vacations.\n\n                  (3) Compensation. During the Employment Period, the Employee\nshall be compensated as follows:\n\n                           (a) The Employee shall receive a salary at the annual\nrate of Four Hundred Thousand Dollars ($400,000) (\"Base Salary\") payable ratably\nin arrears not less often than twice per month.\n\n                           (b) The Employee shall be reimbursed for any and all\nmonies advanced in connection with his employment for reasonable and necessary\nexpenses incurred on behalf of the Company, in accordance with and subject to\nthe substantiation and other terms and conditions of the Company's business\nexpense reimbursement policy applicable to other employees of comparable rank.\n\n                           (c) The Company is party to a Split Dollar Insurance\nAgreement dated December 8, 1999 pertaining to a $1,275,000 life insurance\npolicy on the life of Employee (Phoenix 2657322) and in connection with which\nthe cash value and death benefit of such\n\n                                  Page 3 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\npolicy was collaterally assigned back to the Company to the extent of $192,894.\nThe Company agrees to refrain from exercising its right to terminate said Split\nDollar Insurance Agreement pursuant to paragraph 7 thereof until September 5,\n2016, provided that the foregoing shall not prevent the Company from enforcing\nits rights under such collateral assignment before that date if any\ncircumstances described in Section 2 of said collateral assignment (other than\ntermination of said Split Dollar Insurance Agreement by the Company) occur\nbefore that date. The Company is also party to a Split Dollar Insurance\nAgreement dated December 8, 1999 pertaining to a $3,000,000 second-to-die policy\non the lives of Employee and his wife (Phoenix 2764238) and in connection with\nwhich the cash value and death benefit of such policy was collaterally assigned\nback to the Company to the extent of its cumulative premiums paid on such\npolicy. Prior to the date of this Amended Agreement, the Company has funded such\npolicy, on a split dollar basis, to the extent of $51,000 per year. The Company\nagrees to continue to fund such policy on a split dollar basis to the extent of\n$51,000 per year for the duration of the Employment Period but not beyond the\ndate, if any, on which the Employee's employment by the Company is voluntarily\nterminated by the Employee, other than for Good Reason, or is terminated by the\nCompany for Cause, and agrees to refrain from exercising its right to terminate\nsaid Split Dollar Insurance Agreement pursuant to paragraph 7 thereof until\nSeptember 5, 2008, provided that the foregoing shall not prevent the Company\nfrom enforcing its rights under such collateral assignment before September 5,\n2008 if any circumstances described in Section 2 of such collateral assignment\n(other than termination of said Split Dollar Insurance Agreement by the Company)\noccur before that date. In addition, the Employee shall be included to the\nextent eligible thereunder in the Company's life insurance and supplemental life\ninsurance plans, business travel accident plan, short term and long term\ndisability plan, Humana medical plan, Delta dental plan, flexible spending\naccount\/cafeteria plan, long term care insurance plan and employee assistance\nprogram, at the expense of the Company on a comparable basis as other employees\nof comparable rank, it being understood that (i) the\n\n                                  Page 4 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nCompany will not pay employee contributions for the Employee under any such plan\nunless it pays such employee contributions for other employees of comparable\nrank under such plan, (ii) the Employee may be ineligible to participate in such\nplans during part of the Employment Period if he did not elect to participate in\nsuch plans during the applicable enrollment periods that closed prior to the\nEmployee's signing this Amended Agreement, and (iii) nothing herein shall\nprevent the Company or Barr from amending, modifying, terminating or replacing\nany of such plans during the Employment Period, provided that the Employee is\nincluded in any such replacement plan to the extent eligible thereunder and on\nthe other terms and conditions of this paragraph (c).\n\n                           (d) The Employee shall be eligible to participate in\nthe Company's 401(k) and excess 401(k) plans and shall be fully vested under\neach of those plans. In addition, the Employee shall be eligible to participate\nin the Employee Stock Purchase Plan, on the same terms and conditions applicable\nto other employees of comparable rank, provided that the Employee will be\neligible to participate in the cycle that is in progress under such Plan on the\ndate of this Amended Agreement only if he elected to participate in such Plan\nduring the applicable enrollment period that closed prior to the Employee's\nsigning this Amended Agreement.\n\n                           (e) The Employee and Company acknowledge and agree\nthat his options to purchase shares of Common Stock of the Company (\"Duramed\nOptions\") did not vest at the Merger; that since the Merger his duties and\nresponsibilities have consisted of those described in Section 2 above; that such\nduties and responsibilities represent a diminution in the Employee's position,\nauthority, duties and responsibilities within the meaning of Section 6(d)(i) of\nthe Agreement that entitled the Employee, under the Agreement as in effect prior\nto its being superseded by this Amended Agreement, to receive the benefits\nstated in Section 7(a) of such Agreement, including the immediate vesting of all\nunvested options to purchase shares of Common Stock of the Company then held by\nthe Employee, upon any termination of\n\n                                  Page 5 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nemployment by the Employee until December 31, 2005; and that, until the Employee\nterminated employment under the Agreement, such options would have continued to\nvest pursuant to the terms of the original grant. The parties do not intend to\nalter the vesting of such options. Accordingly, the parties acknowledge and\nagree that, any provision of this Amended Agreement to the contrary\nnotwithstanding, the options will continue to vest pursuant to the terms of the\noriginal grant or will immediately vest in their entirety upon any termination\nof employment by the Employee until December 31, 2005, it being understood and\nacknowledged by the Company that a termination of employment at the expiration\nof the Employment Period as defined in Section 1 above shall be deemed to be a\ntermination of employment by the Employee for this purpose. No provision of this\nSection (3)(e) is intended to extend the expiration date of any Duramed Option\nor alter the terms on which any Duramed Option will continue to vest pursuant to\nthe original grant.\n\n                           (f) The Employee shall be entitled to an additional\nsum of Two Million Dollars ($2,000,000), payable upon signing this Amended\nAgreement, in consideration of his signing this Amended Agreement and in lieu of\nhis participating in any compensation, employee benefit or fringe benefit plans\n(including but not limited to any stock incentive plan) during the Employment\nPeriod other than those specifically provided for in paragraphs 3(c) and 3(d)\nabove and in full satisfaction of any accrued vacation pay and in lieu of any\namounts which would have been paid under the Agreement or under any other plan\nor arrangement in the event of termination of the Employee's employment for Good\nReason as defined in the Agreement but which are not payable under any other\nprovision of this Amended Agreement.\n\n                           (g) The Employee shall be entitled to an additional\nsum of One Million Two Hundred Thousand Dollars ($1,200,000), payable upon\nsigning this Amended Agreement, in consideration of his special undertakings\nunder Section 10 of this Amended Agreement. The Employee recognizes and agrees\nthat the aforementioned payment is being made in consideration of his special\nundertakings under Section 10 and, especially, paragraph 10(f)\n\n                                  Page 6 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nbelow, and that if he fails to comply with his obligations thereunder, he will\nbe obligated to repay the portion of such payment that has not been earned in\naccordance with paragraph 10(f) below.\n\n                  (4) Intentionally left blank.\n\n                  (5) Indemnification. To the extent permitted by law, the\nCompany shall pay, indemnify and hold the Employee harmless from any liability,\ncost or expense (including, without limitation, reasonable attorney's fees)\nincurred by the Employee in the defense of any claim, proceeding or action\narising out of his performance of services for the Company or out of his status\nas an officer or director of the Company or while serving at the request of the\nCompany as an officer, director, partner or employee of any other entity.\nNotwithstanding the foregoing, the Company shall not indemnify the Employee\nagainst any act or omission by the Employee constituting fraud, willful\nmisconduct or gross negligence. In addition, if the Company terminates the\nEmployee for Cause and it is subsequently determined in a non-appealable\njudicial decision that the Company did not have Cause for terminating the\nEmployee, the Company will reimburse the Employee for reasonable attorney's fees\nand expenses he incurs as a result of such termination.\n\n                  (6) Termination. The following provisions of this Section 6\nshall apply only during the Employment Period:\n\n                           (a) Disability. For purposes of this Amended\nAgreement, the term \"permanent disability\" shall be defined as a physical or\nmental disability or disease which, in the opinion of an independent qualified\nphysician appointed by the Company, prevents the Employee from discharging the\ncustomary normal duties of his employment with the Company.\n\n                           (b) Cause. The Company may terminate the Employee's\nemployment for Cause. For purposes of this Amended Agreement, \"Cause\" shall mean\nthe willful engaging by the Employee in illegal conduct which is materially and\ndemonstrably injurious to the Company.\n\n\n                                  Page 7 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nFor purposes of this provision, no act or failure to act, on the part of the\nEmployee, shall be considered \"willful\" unless it is done, or omitted to be\ndone, by the Employee in bad faith or without reasonable belief that his action\nor omission was in the best interests of the Company. Any act, or failure to\nact, based upon authority given pursuant to a resolution duly adopted by the\nBoard or based upon the advice of counsel for the Company shall be conclusively\npresumed to be done, or omitted to be done, by the Employee in good faith and in\nthe best interests of the Company.\n\n                           (c) Good Reason. The Employee's employment may be\nterminated by the Employee for Good Reason at any time after the effective date\nof this Amended Agreement. For purposes of this Amended Agreement, \"Good Reason\"\nshall mean:\n\n                                    (i) the assignment to the Employee of any\nduties inconsistent with the Employee's position, duties or responsibilities as\ncontemplated by Section 2 of this Amended Agreement, or any other action by the\nCompany which results in a change in such position, duties or responsibilities;\n\n                                    (ii) any failure by the Company to comply\nwith any of the provisions of Section 3 of this Amended Agreement;\n\n                                    (iii) the Company's requiring the Employee\nto be based at any office or location other than within twenty-five miles of\nCincinnati, Ohio or the Company's requiring the Employee to travel on Company\nbusiness to a substantially greater extent than required immediately prior to\nthe date of this Amended Agreement; or\n\n                                    (iv) any purported termination by the\nCompany of the Employee's employment otherwise than as expressly permitted by\nthis Amended Agreement; or\n\n                                    (v) the continued failure of the Company to\nperform substantially its obligations under this Amended Agreement after a\nwritten demand for substantial performance is delivered by the Employee to\nBarr's Chief Executive Officer which\n\n                                  Page 8 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nspecifically identifies the manner in which the Employee believes the Company\nhas not substantially carried out its obligations.\n\n                           Notwithstanding the above, \"Good Reason\" shall\nexclude an isolated, insubstantial and inadvertent action or failure to act not\ntaken or occurring in bad faith and which is remedied by the Company promptly\nafter receipt of notice thereof given by the Employee.\n\n                           For purposes of this Section 6(c), any good faith\ndetermination of \"Good Reason\" by the Employee shall be conclusive.\n\n                           (d) Notice of Termination. Any termination by the\nCompany for Cause, or by the Employee, shall be communicated by Notice of\nTermination to the other party hereto given in accordance with Section 15 of\nthis Amended Agreement. For purposes of this Amended Agreement, a Notice of\nTermination means a written notice which (i) indicates the specific termination\nprovision in this Amended Agreement relied upon, (ii) to the extent applicable,\nsets forth in reasonable detail the facts and circumstances claimed to provide a\nbasis for termination of the Employee's employment under the provision so\nindicated and (iii) if the Date of Termination (as defined below) is other than\nthe date of receipt of such notice, specifies the termination date (which date\nshall be not more than thirty days after the giving of such notice). The failure\nby the Employee or the Company to set forth in the Notice of Termination any\nfact or circumstance which contributes to a showing of Good Reason or Cause,\nrespectively, shall not preclude the Employee or the Company, respectively, from\nasserting such fact or circumstance in enforcing the Employee's or the Company's\nrights hereunder.\n\n                           (e) Date of Termination. \"Date of Termination\" means\nthe earlier of (i) if the Employee's employment is terminated by the Company for\nCause, or by the Employee, the date of receipt of the Notice of Termination or\nany later date specified therein, as the case may be; (ii) if the Employee's\nemployment is terminated by the Company other than for Cause, the Date of\nTermination shall be the date on which the Company notifies him of such\n\n\n                                  Page 9 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\ntermination; (iii) if the Employee's employment is terminated by reason of death\nor disability, the Date of Termination shall be the date of death of the\nEmployee or the disability, as the case may be; and (iv) termination of the\nEmployment Period.\n\n                  (7) Obligations of the Company upon Termination. The following\nprovisions of this Section 7 shall apply only in the event of termination during\nthe Employment Period:\n\n                           (a) Death; Disability; Good Reason; Other Than for\nCause\/ Employment Period Expiration. If the Employee dies, suffers a permanent\ndisability or if the Company terminates the Employee's employment during the\nEmployment Period other than for Cause or death or disability or the Employee\nterminates employment for Good Reason or the Employment Period expires, then in\nfull discharge and settlement of any and all obligations of the Company and\/or\nits affiliates, including Barr, to the Employee for compensation, benefits or\nemoluments of any kind (including but not limited to accrued vacation pay but\nexcluding amounts payable pursuant to Section 8 hereof):\n\n                                    (i) the Company shall pay to the Employee in\na lump sum in cash within 30 days after the Date of Termination the sum of (1)\nthe Employee's Base Salary through the end of the Employment Period, to the\nextent not theretofore paid, and (2) any unpaid compensation previously deferred\nby the Employee (together with any vested accrued interest or earnings net of\nlosses thereon) under any plan other than the 401(k) plan, any other\ntax-qualified plan or the excess 401(k) plan (with respect to which plans\npayments if any shall be made at the time or times and on the terms and subject\nto the conditions set forth in the applicable plan documents)(the sum of the\namounts described in clause (2) shall be hereinafter referred to as the \"Accrued\nObligations\"); and\n\n                                    (ii) to the extent not theretofore paid or\nprovided, the Company shall timely pay or provide to the Employee when due any\nother amounts or benefits required to be paid or provided or which the Employee\nis entitled to receive under any plan, program, policy or practice or contract\nor agreement of the Company and its affiliated\n\n                                 Page 10 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\ncompanies as a result of his participation therein prior to the Employment\nPeriod (all such other amounts and benefits being itemized on Schedule A hereto)\nor, in the case of the plans specifically provided for in paragraphs 3(c) and\n3(d) above, as a result of his participation therein during the Employment\nPeriod (such other amounts and benefits shall be hereinafter referred to as the\n\"Other Benefits\"), it being understood and agreed, however, that, any provision\nof this Agreement or of any plan, program, policy or practice or contract or\nagreement of the Company and\/or its affiliated companies to the contrary\nnotwithstanding:\n\n                                            A. the $500,000 amount payable\npursuant to Section 1 above, the $2,000,000 amount payable pursuant to Section\n3(f) above and the $1,200,000 amount payable pursuant to Section 3(g) above\nshall not be treated as cognizable compensation under any such plan, program,\npolicy or practice or contract or agreement of the Company and\/or its affiliated\ncompanies (each a \"Plan\" and, collectively, \"Plans\"), including without\nlimitation any 401(k) plan and any excess or non-qualified 401(k) plan, and thus\nshall not give rise to any benefit obligation under any such Plan on the part of\nthe Company or any affiliated company, including without limitation Barr, or any\nother person or entity, nor to any benefit entitlement under any such Plan or\notherwise on the part of the Employee, and if, notwithstanding the foregoing\nprovisions of this Section 7(a)(ii)(A), any Plan shall treat any of such amounts\nas cognizable compensation under any such Plan, the Employee hereby irrevocably\nwaives and foregoes any benefit or increase in benefits resulting therefrom; and\n\n                                            B. the $2,000,000 amount payable\npursuant to Section 3(f) above shall be in lieu of and in full discharge of any\nseverance pay obligation under any and all of the Plans (other than amounts\npayable pursuant to Section 8 hereof).\n\n                                    (iii) as provided in Section 3(e) above, all\nunvested options to purchase shares of Common Stock of the Company then held by\nthe Employee shall vest immediately.\n\n\n                                 Page 11 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\n\n                           (b) Cause; other than for Good Reason. If the\nEmployee's employment shall be terminated during the Employment Period for\nCause, this Amended Agreement shall terminate without further obligations to the\nEmployee other than the obligation to pay to the Employee (x) his Base Salary\nthrough the Date of Termination and (y) the amount of any compensation\npreviously deferred by the Employee and referred to in Section 7(a)(i)(2) above\nin each case to the extent theretofore unpaid. If the Employee voluntarily\nterminates employment during the Employment Period, excluding a termination for\nGood Reason, this Amended Agreement shall terminate without further obligations\nto the Employee, other than for his Base Salary through the Date of Termination,\nthe Accrued Obligations, and the timely payment or provision of Other Benefits,\nthe immediate vesting of any options to purchase Common Stock of the Company\nthen held by him, and the payment of any benefits payable pursuant to Section 8\nhereof. In such case, all Accrued Obligations shall be paid to the Employee in a\nlump sum in cash within 30 days of the Date of Termination. If the Employee's\nemployment shall be terminated on or before June 30, 2002 for Cause, or if the\nEmployee terminates employment on or before that date, the Employee shall\nimmediately repay to the Company the unearned portion of the $500,000 payment\nmade pursuant to Section 1 above. The unearned portion of such payment shall be\ndeemed to be equal to a fraction of such payment, the numerator of which shall\nbe the number of full or partial calendar days in the period from the date of\nthe employment termination through (and including) June 30, 2002 and the\ndenominator of which shall be the number ninety-one (91).\n\n                  (8) Certain Additional Payments by the Company.\n\n                           (a) Anything in this Amended Agreement to the\ncontrary notwithstanding, in the event it shall be determined at any time after\nthe execution of this Amended Agreement that any payment or distribution by the\nCompany to or for the benefit of the Employee (whether paid or payable or\ndistributed or distributable pursuant to the terms of this Amended Agreement or\notherwise, but determined without regard to any additional\n\n                                 Page 12 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\npayments required under this Section 8) (a \"Payment\") would be subject to the\nexcise tax imposed by Section 4999 or its equivalent or any successor provision\nof the United States Internal Revenue Code (the \"Code\") or any interest or\npenalties are incurred by the Employee with respect to such excise tax (such\nexcise tax, together with any such interest and penalties, are hereinafter\ncollectively referred to as the \"Excise Tax\"), then the Employee shall be\nentitled to receive an additional payment (a \"Gross-Up Payment\") in an amount\nsuch that after payment by the Employee of all taxes and any benefits that\nresult from the deductibility by the Employee of such taxes (including, in each\ncase, any interest or penalties imposed with respect to such taxes), including,\nwithout limitation, any income taxes (and any interest and penalties imposed\nwith respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the\nEmployee retains an amount of the Gross-Up Payment equal to the Excise Tax\nimposed upon the Payments.\n\n                           (b) Subject to the provisions of Section 8(c), all\ndeterminations required to be made under this Section 8, including whether and\nwhen a Gross-up Payment is required and the amount of such Gross-Up Payment and\nthe assumptions to be utilized in arriving at such determination, shall be made\nby the Company's certified public accounting firm (the \"Accounting Firm\") which\nshall provide detailed supporting calculations both to the Company and the\nEmployee within 15 business days of the receipt of notice from the Employee that\nthere has been a Payment, or such earlier time as is requested by the Company;\nprovided however that the Accounting Firm must determine that a Gross-Up Payment\nis immediately required following a final determination by a court of competent\njurisdiction that a Payment to or for the benefit of the Employee is subject to\nthe Excise Tax. All fees and expenses of the Accounting Firm shall be borne\nsolely by the Company. Any Gross-Up Payment, as determined pursuant to this\nSection 8, shall be paid by the Company to the Employee within five days of the\nreceipt of the Accounting Firm's determination. As a result of the uncertainty\nin the application of section 4999 of the Code at the time of the initial\ndetermination by the Accounting Firm hereunder, it is possible that Gross-Up\nPayments which will not have been made by the\n\n                                 Page 13 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nCompany should have been made (\"Underpayment\"), consistent with the calculations\nrequired to be made hereunder. In the event that the Company exhausts its\nremedies pursuant to Section 8(c) and the Employee thereafter is required to\nmake a payment of any Excise Tax, the Accounting Firm shall determine the amount\nof the Underpayment that has occurred and any such Underpayment shall be\npromptly paid by the Company to or for the benefit of the Employee.\n\n                           (c) The Employee shall notify the Company in writing\nof any claim by the Internal Revenue Service that, if successful, would require\nthe payment by the Company of the Gross-Up Payment. Such notification shall be\ngiven as soon as practicable but no later than ten business days after the\nEmployee is informed in writing of such claim and shall apprize the Company of\nthe nature of such claim and the date on which such claim is requested to be\npaid. The Employee shall not pay such claim prior to the expiration of the\n30-day period following the date on which it gives such notice to the Company\n(or such shorter period ending on the date that any payment of taxes with\nrespect to such claim is due). If the Company notifies the Employee in writing\nprior to the expiration of such period that it desires to contest such claim,\nthe Employee shall:\n\n                                    (i) give the Company any information\nreasonably requested by the Company relating to such claim,\n\n                                    (ii) take such action in connection with\ncontesting such claim as the Company shall reasonably request in writing from\ntime to time, including, without limitation, accepting legal representation with\nrespect to such claim by an attorney reasonably selected by the Company,\n\n                                    (iii) cooperate with the Company in good\nfaith in order effectively to contest such claim, and\n\n                                    (iv) permit the Company to participate in\nany proceedings relating to such claim; provided, however, that the Company\nshall bear and pay directly all\n\n                                 Page 14 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\ncosts and expenses (including additional interest and penalties) incurred in\nconnection with such contest and shall indemnify and hold the Employee harmless,\non an after-tax basis, for any Excise Tax or income tax (including interest and\npenalties with respect thereto) imposed as a result of such representation and\npayment of costs and expenses. Without limitation on the foregoing provisions of\nthis Section 8(c), the Company shall control all proceedings taken in connection\nwith such contest and, at its sole option, may pursue or forgo any and all\nadministrative appeals, proceedings, hearings and conferences with the taxing\nauthority in respect of such claim and may, at its sole option, either direct\nthe Employee to pay the tax claimed and sue for a refund or contest the claim in\nany permissible manner, and the Employee agrees to prosecute such contest to a\ndetermination before any administrative tribunal, in courts, as the Company\nshall determine; provided, however, that if the Company directs the Employee to\npay such claim and sue for a refund, the Company shall advance the amount of\nsuch payment to the Employee, on an interest-free basis and shall indemnify and\nhold the Employee harmless, on an after-tax basis from any Excise Tax or income\ntax (including interest or penalties with respect thereto) imposed with respect\nto such advance; and further provided that any extension of the statute of\nlimitations relating to payment of taxes for the taxable year of the Employee\nwith respect to which such contested amount is claimed to be due is limited\nsolely to such contested amount. Furthermore, the Company's control of the\ncontest shall be limited to issues with respect to which a Gross-Up Payment\nwould be payable hereunder and the Employee shall be entitled to settle or\ncontest, as the case may be, any other issue raised by the Internal Revenue\nService or any other taxing authority.\n\n                           (d) If, after the receipt by the Employee of an\namount advanced by the Company pursuant to Section 8(a) or 8(c), the Employee\nbecomes entitled to receive any refund with respect to such claim, the Employee\nshall (subject to the Company's complying with the requirements of Section 8(c))\npromptly pay to the Company the amount of such refund (together with any\ninterest paid or credited thereon after taxes applicable thereto). If, after the\n\n\n                                 Page 15 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nreceipt by the Employee of an amount advanced by the Company pursuant to Section\n8(c), a determination is made that the Employee shall not be entitled to any\nrefund with respect to such claim and the Company does not notify the Employee\nin writing of its intent to contest such denial of refund prior to the\nexpiration of 30 days after such determination, then such advance shall be\nforgiven and shall not be required to be repaid and the amount of such advance\nshall offset, to the extent thereof, the amount of Gross-Up Payment required to\nbe paid.\n\n                           (e) The Company's obligations provided in this\nSection 8 shall survive until all applicable statutes of limitation with respect\nto the subject matter have terminated.\n\n                  (9) Confidentiality. The Employee will not at any time during\nthe term of this Amended Agreement or thereafter, except as authorized by the\nCompany, divulge, furnish or make accessible to any person, firm, corporation or\nother entity, any confidential information or any other information that is\notherwise not publicly available which he presently possesses or which he may\nobtain during the course of his employment with respect to the business,\ncustomers or affairs of the Company or any subsidiary or affiliate of the\nCompany or trade secrets, developments, know-how, methods or other information\nor data pertaining to practices, equipment, developments or any confidential or\nsecret aspect of the business of the Company or any subsidiary or affiliate of\nthe Company, and agrees that all such matters and information shall be kept\nstrictly and absolutely confidential. The Employee, upon termination of his\nemployment, irrespective of the time, manner or cause of termination, will\nsurrender and deliver to the Company all lists, books, records and data of every\nkind relating to or in connection with the business of the Company or any\nsubsidiary or affiliate of the Company, and all property belonging to the\nCompany and any subsidiary or affiliate of the Company.\n\n                  (10)     Special Undertakings.\n\n                           (a) The Employee agrees that any and all notes and\nrecords kept or made in connection with his employment shall be and are the sole\nand exclusive property of the Company; and the Employee further agrees that upon\nleaving the employment of the\n\n                                 Page 16 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nCompany, he will place all such notes and records in the Company's possession,\nand will not take with him, without the consent of the Company's Board of\nDirectors, any notes and records relating to or connected with the business,\nwork or investigations of the Company, its affiliates and subsidiaries, or any\nof them, including drawings, blueprints or other reproduction.\n\n                           (b) The Employee further agrees that any secret\napparatus, secret equipment, secret formula, secret method or process of the\nCompany, that the Employee is aware of because of his employment with the\nCompany, whether or not developed by the Employee, will not be disclosed to any\nthird party or used by the Employee except in connection with his duties to the\nCompany or unless the Employee shall first secure the consent of the Company's\nBoard of Directors, either during his employment or after his employment by the\nCompany shall have terminated.\n\n                           (c) Employee agrees that, during the Employment\nPeriod as defined in Section 1 above and during the one year period immediately\nfollowing the Employment Period, he will not solicit or attempt to persuade any\nemployee of the Company, its subsidiaries or affiliates, or any other person who\nperforms services for the Company, its subsidiaries or affiliates at any time\nduring the Employment Period or at any time within one year thereafter, to\nterminate or reduce or refrain from engaging in his or her employment or other\nservice relationship with the Company, its subsidiaries or affiliates. Provided,\nhowever, that responding to inquiries and subsequently hiring such employees\nfollowing their termination of employment with the Company shall be permitted.\n\n                           (d) Employee agrees that, during the Employment\nPeriod and the one year period immediately following the Employment Period, he\nwill not make disparaging remarks about the Company, its subsidiaries or\naffiliates or any of their officers, directors or employees.\n\n                           (e) The Employee also agrees to cooperate with the\nCompany and Barr in any legal action for which his participation is needed\nduring the Employment Period or the one year period thereafter. The Company\nagrees to try to schedule all such participation so\n\n                                 Page 17 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nthat it does not unduly interfere with the Employee's pursuits after he is no\nlonger in the Company's employ. The Employee also hereby agrees not to\ncommunicate with anyone (other than the Employee's own attorneys) with respect\nto the facts or subject matter of any pending or potential litigation, or\nregulatory or administrative proceeding involving the Company, its subsidiaries\nor affiliates known or which becomes known to the Employee, other than any\nlitigation or proceeding in which the Employee is a party-in-opposition, without\ngiving prior notice to the Company and its legal counsel, and in the event that\nany other party attempts to obtain information or documents from the Employee\nwith respect to matters possibly related to such litigation or proceeding, the\nEmployee shall promptly notify the Company and its legal counsel. However, the\nEmployee shall not be required to comply with the preceding sentence if and to\nthe extent that doing so would violate the law.\n\n                           (f) The Employee agrees that, during the Employment\nPeriod as defined in Section 1 above and the one year period following the\nEmployment Period (collectively, the \"Restricted Period\"), including but not\nlimited to any portion of the Restricted Period that follows the termination of\nhis employment with the Company for any reason (whether by the Company or the\nEmployee and whether or not for Cause or Good Reason), he will not engage in\ncompetition with the Company as defined in the next sentence. For this purpose,\n\"engage in competition with the Company\" means manufacturing of any product, or\ncausing a manufacturer to develop any product, being sold or to be sold in the\nUnited States (i) that on June 27, 2001 was being manufactured by the Company or\nBarr or any subsidiary of the Company or Barr (\"Group\"), or (ii) for which the\nGroup had filed a NDA or an ANDA on or before June 27, 2001 seeking FDA approval\nto manufacture such product; provided that in no event shall passive ownership\nof less than 5% of any class of securities which are registered under section 12\nof the Securities Exchange Act of 1934, as amended, by itself be deemed to\nconstitute competition within the meaning of this sentence. If the Employee\nfails to comply with his obligations under this paragraph 10(f), the Employee\nshall immediately repay to the\n\n                                 Page 18 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nCompany the unearned portion of the $1,200,000 payment made pursuant to\nparagraph 3(g) above. For this purpose, the unearned portion of such payment\nshall be deemed to be equal to a fraction of such payment, the numerator of\nwhich shall be the number of calendar days remaining in the Restricted Period\nafter the first date of noncompliance and the denominator of which shall be the\ntotal number of calendar days in the Restricted Period. The parties recognize\nand agree that the foregoing permits the Employee during the Restricted Period\nto, among other matters, (A) engage in a business that manufactures any product\nthat is not manufactured by any member of the Group on June 27, 2001 and for\nwhich no member of the Group had filed a NDA or an ANDA seeking FDA approval to\nmanufacture such product, and (B) engage in the business of selling and\ndistributing all multisource products that are normally available for sale in a\nbroad based generic distributorship.\n\n                  (11) Enforceability. The parties agrees that nothing in this\nAmended Agreement shall in any way abrogate the right of the Company and the\nEmployee to enforce by injunction or otherwise the due and proper performance\nand observance of the several covenants herein contained to be performed by the\nEmployee or the Company or to recover damages for breach thereof.\n\n                  (12) Successors and Assigns. If the Company sells, assigns or\ntransfers all or substantially all of its business and assets to any person,\nexcluding affiliates of the Company, or if the Company merges into or\nconsolidates or otherwise combines with any person which is a continuing or\nsuccessor entity, then the Company shall assign all of its right, title and\ninterest in this Amended Agreement as of the date of such event to the person\nwhich is either the acquiring or successor corporation, and such person(s) shall\nassume and perform from and after the date of such assignment all of the terms,\nconditions and provisions imposed by this Amended Agreement upon the Company. In\ncase of such assignment by the Company and of assumption and agreement by such\nperson(s), all further rights as well as all other obligations of\n\n                                 Page 19 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nthe Company under this Agreement thenceforth shall cease and terminate and\nthereafter the expression \"the Company\" wherever used herein shall be deemed to\nmean such person(s).\n\n                  (13) Supplemental Compensation. This Amended Agreement\nsupersedes and replaces the Agreement and any other employment agreement or\nChange in Control Contingent Employment Agreement between the Employee and the\nCompany. By executing this Amended Agreement, each party irrevocably waives and\nreleases the other party hereto from any claims and liabilities arising under\nthe Agreement prior to the effective date of this Amended Agreement. No person,\nother than such person as may be designated by the Board of Directors of the\nCompany, shall have any authority on behalf of the Company to agree to modify or\nchange this Amended Agreement. This Amended Agreement sets forth all of the\nagreements and understandings of the parties and Barr relating to the subject\nmatter of this Amended Agreement, and there are no agreements or understandings\nrelating to such subject matter that are not set forth herein. No provision of\nthis Amended Agreement may be amended, modified or waived unless such amendment,\nmodification or waiver shall be agreed to in a writing signed by the Employee\nand a representative of the Company duly authorized to do so.\n\n                  (14) Severability. This Amended Agreement is to be governed by\nand construed under the laws of the State of Ohio. If any provision of this\nAmended Agreement shall be held invalid and unenforceable for any reason, such\nprovision shall be interpreted in such a manner that will make it valid and\nenforceable and if such provision cannot be so interpreted then in that event\nsuch provision shall be deemed deleted and the remainder of the Amended\nAgreement shall be valid and enforceable without such provision.\n\n                  (15) Notice. Any notice required or permitted hereunder shall\nbe given in writing and delivered to the other party either in person or by U.S.\nregistered or certified mail; if to the Company, at 5040 Duramed Drive,\nCincinnati, Ohio 45213, with a copy to Barr Laboratories, Inc., 300 Corporate\nDrive, Building #10, Bradley Corporate Park, Blauvelt, New York 10913,\n\n\n                                 Page 20 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\nAttention: General Counsel; and if to the Employee, at his address as it appears\non the books and records of the Company, or in each case at such other address\nprovided in writing to the other party.\n\n                  (16) Headings. The Section headings used in this Amended\nAgreement are for convenience only and shall not affect the construction or\ninterpretation of this Amended Agreement.\n\n                  (17) Withholding. Any provision of this Amended Agreement to\nthe contrary notwithstanding, (i) all amounts payable or credited to the\nEmployee under this Amended Agreement shall be subject to the withholding of\nsuch amounts as the Company may determine it is required to withhold under the\nlaws or regulations of any governmental authority, and (ii) the Company shall\nhave the right to deduct and offset from any amounts payable by the Company to\nthe Employee hereunder any such withholding amounts and any amounts that are due\nto the Company from the Employee hereunder, including any amounts that may be\nrepayable to the Company pursuant to paragraph 7(b) or 10(f) above.\n\n                  IN WITNESS WHEREOF, the Company has caused this Amended and\nRestated Employment Agreement to be executed and attested by its duly authorized\nofficers, and the Employee has hereunto set his hand as of the first date\nwritten above.\n\n                                             DURAMED PHARMACEUTICALS, INC.\n                                             Employer\n\n                                             By_________________________________\n\n                                             ___________________________________\n\n\n                                             ___________________________________\n                                             E. Thomas Arington, Employee\n\n\n\n                                 Page 21 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\n                  GUARANTY\n\n                  Barr Laboratories, Inc. hereby guarantees the punctual payment\nof all obligations of Duramed Pharmaceuticals, Inc. under the foregoing Amended\nand Restated Employment Agreement dated ________, 2002.\n\n                                            BARR LABORATORIES, INC.\n\n\n                                            By _________________________________\n\n\n\n                                 Page 22 of 23\n\n                                       Thomas Arington execution copy 0020924000\n\n                                                                    Attachment A\n\n           Amounts and Benefits to be Itemized under Section 7(a)(ii)\n\n\n\n                                 Page 23 of 23\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6859],"corporate_contracts_industries":[9407],"corporate_contracts_types":[9539,9544],"class_list":["post-40330","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-barr-laboratories-inc","corporate_contracts_industries-drugs__pharma","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40330","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40330"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40330"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40330"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40330"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}