Exhibit 10(a)
AGREEMENT
THIS AGREEMENT is made and entered into by and between Rodolfo
Bryce (hereinafter referred to as "Bryce") and Schering-Plough
Corporation, including all of its affiliates, subsidiaries,
divisions and related companies (hereinafter referred to as the
"Company").
W I T N E S S E T H:
WHEREAS, Bryce has indicated to the Company his desire and
intention to cease active employment with the Company after December
31, 1998 and thereafter to take early retirement when eligible;
WHEREAS, Bryce and the Company intend in this Agreement to set
forth the terms of, and fully and finally resolve any matters that
may arise from, Bryce's continued employment with the Company and
eventual departure therefrom.
NOW, THEREFORE, in consideration of the promises and mutual
promises herein contained, it is agreed as follows:
1. Bryce will continue active employment with Schering-
Plough HealthCare Products and remain Executive Vice President of
Schering-Plough Corporation as well as maintain all of his other
current officerships, directorships, and committee memberships with
the Company through December 31, 1998. He will resign from all the
above-cited positions effective January 1, 1999, and on request will
execute such documents as may be necessary to effectuate the
resignations. Bryce will be entitled to an Executive Incentive Plan
("EIP") payment and profit sharing for the year 1998 in accordance
with the terms of the EIP and Profit Sharing Plan. He will also
receive a lump-sum payment, less applicable deductions, for banked
and accrued but unused vacation through December 1998 on a date of
his choosing no later than April 1, 2001.
2. Effective January 1, 1999, Bryce will be placed on a
Leave of Absence without pay and without eligibility for EIP
payments, profit sharing, or vacation accruals. His participation
in the Company's 401(k) plan shall also end as of January 1, 1999.
Bryce will be eligible for the Financial Counseling and Tax
Preparation Program for the years 1999, 2000 and 2001. While on his
Leave of Absence, Bryce will also be eligible to participate in the
Company's other benefit programs (including but not limited to the
E-grade Medical/Dental Plan, the Executive Life Insurance Plan, the
Long Term Disability Plan, the Retirement Plan, the Supplemental
Executive Retirement Plan and the Retirement Benefits Equalization
Plan) subject to the limitations set forth in paragraphs 3-6 below.
This Leave of Absence shall continue until April 1, 2001. Once
Bryce's Leave of Absence has expired, his employment with the
Company shall be terminated.
3. Bryce agrees to forfeit stock options which have not
vested as of December 31, 1998, except that he will not forfeit 7080
options from the February 23, 1998 grant which vests on February 24,
1999 while Bryce is on his Leave of Absence. This means that Bryce
will forfeit 8,000 options of the 40,000 option grant made on
September 24, 1990, the entire 200,000 option grant made on
September 26, 1994, and 28,320 options of the 35,400 option grant
made on February 23, 1998.
4. In summary, after taking account of the forfeitures
indicated in the preceding paragraph and options previously
exercised, Bryce shall continue to own the following options, the
terms and provisions of which shall continue to be governed by the
applicable stock incentive plan:
32,000 options from the 9/25/89 grant
16,000 options from the 9/24/90 grant
11,400 options from the 2/26/96 grant
35,400 options from the 2/24/97 grant
7,080 options from the 2/23/98 grant
Bryce's status as an optionee with respect to the options listed
immediately above shall be equivalent to that of an employee under
the respective stock incentive plans during his Leave of Absence,
and thereafter of a retiree if he elects early retirement upon the
termination of his Leave of Absence.
5. Bryce agrees to forfeit all stock awards which have not
been distributed as of December 31, 1998, except that he will be
entitled to distribution of 20% of the February 23, 1998 award of
18,800 shares on February 23, 1999 and to distribution of the entire
September 26, 1994 award of 80,000 shares on September 26, 1999.
6. In summary, after taking account of the forfeitures
indicated in the preceding paragraph (and assuming acceleration of
the 1995, 1996, and 1997 awards by the Executive Compensation and
Organization Committee of the Board of Directors, which acceleration
remains at the sole discretion of such committee), Bryce shall be
entitled to the following stock award distributions in the months
indicated:
December 1998: 7,680 shares of the 2/27/95 award (which
represents 40% of the total award of 2/27/95); 3,840 shares
of the 2/26/96 award (which represents 20% of the total
award of 2/26/96); and 3,760 shares of the 2/24/97 award
(which represents 20% of the total award of 2/24/97).
February 1999: 3,760 shares of the 2/23/98 award (which
represents 20% of the total award of 2/23/98).
September 1999: the entirety of the 9/26/94 award of
80,000 shares.
Bryce will forfeit 7,680 shares of the 2/26/96 award (which
represents 40% of the total award of 2/26/96), 11,280 shares of the
2/24/97 award (which represents 60% of the total award of 2/24/97),
and 15,040 shares of the 2/23/98 award (which represents 80% of the
total award of 2/23/98).
7. Bryce will be eligible to retire on April 1, 2001, in
accordance with the terms of the Company's Retirement Plan. At that
time, Bryce will be entitled to receive those retirement benefits
that the Company provides to separated employees of the same age
with the same amount of Company service and whose grade and
compensation levels are the same, subject to all terms and
conditions of all such plans. These benefits will be calculated
according to the benefits formula established by the Company for
eligible participants. The precise benefits that will be made
available will be calculated by the Company's outside actuarial
benefit firm and documented in writing to Bryce at the end of
Bryce's Leave of Absence period.
8. Bryce will return to the Company all Company property he
has received in the course of his employment with the Company
including but not limited to documents, reports, studies, memoranda,
computer based information, credit cards, and other such materials
within ten (10) days of the end of his active employment with the
Company and he shall retain no copies of any such property. Bryce
acknowledges that the terms of a previously signed Employee
Confidentiality and Invention Agreement and the Company's Business
Conduct Policy remain in effect and nothing herein shall relieve him
thereunder.
9. Bryce agrees that for the period from the date of this
Agreement until April 1, 2001, he shall not, directly or indirectly,
as principal, agent, employee, employer, stockholder (other than as
a holder of less than 1% of the issued and outstanding stock of a
publicly held corporation), partner, or in any other individual or
representative capacity whatsoever, do any of the following:
(a) Engage in, be connected with, provide goods or services
to, or conduct any "Competing Business," which for purposes of this
Agreement shall be defined as any business engaged in the research,
development, or manufacture and sale of any product directly
competitive with a Company product generating more than $50 million
in worldwide annual sales. The Company's suncare and Dr. Scholl's
lines of products shall each be considered a single Company product
in this definition. Each covenant contained in this subparagraph
(a) shall be deemed to be a separate covenant for each county of
each State of the United States of America and for each other
country in which any customer of any Competing Business has a place
of business or is otherwise located or in which any Competing
Business engages in business, and this subparagraph (a) shall be
limited to such geographical areas.
(b) Induce or attempt to induce any employee of the Company to
terminate his employment with the Company.
(c) Knowingly undertake or participate in any activities,
engage in any conduct or make any statements inconsistent with or
contrary to the interests of the Company or its affiliates.
10. The Company will waive the restrictions set forth in
paragraph 9(a) if the restrictions are not necessary to protect a
significant business interest of the Company, provided that Bryce
follows the procedures set forth in this paragraph. To seek a
waiver, Bryce must notify the Company in writing of his intent to
join a Competing Business at least 30 days in advance of his
anticipated starting date of employment or other affiliation. Bryce
and the Vice Chairman and Administrative Officer or designee shall
meet promptly and confer in good faith concerning whether the
restrictions should be waived. If the parties are unable to agree
on whether the restrictions are necessary to protect a significant
business interest of the Company, Bryce may at his option submit the
dispute to a single arbitrator in a binding arbitration administered
by the American Arbitration Association under its Commercial
Arbitration Rules, such arbitration to be initiated no later than 10
days before Bryce's anticipated starting date of employment or other
affiliation. If Bryce initiates arbitration pursuant to this
paragraph he will not commence his employment or affiliation with
the Competing Business until an award is issued by the arbitrator.
11. Bryce acknowledges that he has carefully read and
considered all of the terms and conditions of this Agreement,
including the restraints imposed pursuant to paragraph 9 hereof,
that he fully understands his right to discuss all aspects of this
Agreement with his attorney, and that he voluntarily enters into
this Agreement. Bryce agrees that such restraints are necessary for
the reasonable and proper protection of the Company, and that each
and every one of said restraints is reasonable in respect to subject
matter, length of time, and area.
12. (a) In the event that in any judicial proceeding a court
of competent jurisdiction refuses to enforce any one or more of the
covenants contained in this Agreement in any respect, then such
covenant shall be deemed limited and restricted to the extent that
such court shall deem it to be enforceable, and as so limited or
restricted, the covenant shall remain in full force and effect. In
the event that any such covenant or covenants shall be deemed
unenforceable in their entirety by such a court, the remaining
covenants (as they may be limited and restricted) shall remain in
full force and effect.
(b) Without limiting the Company's rights and remedies with
respect to any breach of this Agreement, the covenants under
paragraph 9 above, and the Company's rights and remedies with
respect thereto, shall survive the termination of this Agreement for
any reason.
(c) Bryce agrees that in any judicial proceeding in which the
Company seeks an injunction for breach of the covenants in paragraph
9 of this Agreement, he will not assert that an injunction is
unavailable because the Company's remedies at law such as claims for
damages are adequate. Nothing contained herein shall be construed
as limiting the Company's right to any other remedies in equity or
under law, including the recovery of damages from Bryce.
13. This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective personal
representatives, heirs, successors and assigns.
14. This Agreement may only be amended or otherwise modified
by an agreement in writing executed by the parties hereto.
15. Bryce agrees that he is entitled to no benefits or
compensation other than what is specifically set forth in this
Agreement.
16. Bryce agrees that at the end of his active employment with
the Company, he will execute a General Release and Covenant Not to
Sue in the form annexed hereto as Exhibit A.
17. The Agreement sets forth the entire Agreement between the
parties and supersedes any and all prior agreements or
understandings between them, whether oral or in writing, except as
otherwise provided herein. The parties agree this Agreement shall
be governed by the law of the State of New Jersey, and Bryce
specifically consents to having any dispute under this Agreement
resolved by the federal or state courts in the State of New Jersey.
Bryce acknowledges that he has relied on no statements or
representations of any kind whatsoever, other than those set forth
herein, in agreeing to be bound by this Agreement.
18. Bryce recognizes that he has up to 21 days to execute this
Agreement and 7 days thereafter to revoke his acceptance thereof.
Bryce may accept and return the Agreement prior to the 21st day, but
if he does so, he waives the right to the full 21 days. This
Agreement will not become effective and will not be enforceable
until the seven (7) day period has expired. If Bryce does wish to
revoke his acceptance, he should notify Mr. Hugh D'Andrade, Vice
Chairman and Administrative Officer, in writing of his decision.
IN WITNESS WHEREOF, the parties have set their hand this
tenth day of June of 1998.
/s/Rodolfo Bryce
Rodolfo Bryce
June 11, 1998
On behalf of the Company
/s/Hugh A. D'Andrade
Hugh A. D'Andrade
Vice Chairman and
Chief Administrative Officer
Schering-Plough Corporation
June 10, 1998
EXHIBIT A
GENERAL RELEASE AND COVENANT NOT TO SUE
1. Rodolfo Bryce (hereinafter referred to as "Bryce") agrees
that he will not file or permit any third party to file a lawsuit
against Schering-Plough Corporation or any of its affiliates,
subsidiaries, divisions, or related companies (hereinafter
collectively referred to as "the Company") or any other Releasee
identified in paragraph 2 below in connection with any aspect of his
employment, except with respect to an alleged breach of the
Agreement between Bryce and the Company, dated
(hereinafter referred to as "the Agreement").
2. In consideration of the covenants undertaken herein and
except for those obligations created by or arising out of the
Agreement, Bryce on his behalf and on behalf of his descendants,
dependents, heirs, executors, administrators, assigns and successors
does hereby covenant not to sue and acknowledges complete
satisfaction of and hereby releases, absolves and discharges the
Company and its heirs, successors and assigns, parent companies,
subsidiaries, divisions and affiliated corporations, past and
present, its and their trustees, directors, officers, shareholders,
agents, attorneys, insurers, and employees, past and present, and
each of them (collectively referred to as "Releasees"), with respect
to and from any and all claims, demands, liens, agreements,
contracts, covenants, actions, suits, causes of action, wages,
obligations, debts, expenses, attorneys' fees, damages, judgments,
orders and liabilities of whatever kind or nature in law, equity or
otherwise, whether now known or unknown, suspected or unsuspected,
and whether or not concealed or hidden, which Bryce now owns or
holds or has at any time heretofore owned or held as against said
Releasees, or any of them. Included in this release and discharge,
but not limited by them are any claims that Bryce may have under
federal, state, or local law prohibiting age discrimination (for
example, under the Age Discrimination in Employment Act) or other
forms of discrimination, and/or claims growing out of any legal
restrictions on the Company's right to terminate employees (for
example, claims that may arise under various contract, tort, public
policy or wrongful discharge theories or statutory claims such as
claims under New Jersey's Conscientious Employee Protection Act).
________________
Rodolfo Bryce
________________
Date
168562-1.DOC -1-
168562-1.DOC -1-