AGREEMENT
THIS AGREEMENT (the "Agreement") is made and
entered into as of the 28th day of April, 1997 by David E.
Cohen ("Employee"), Alpharma Inc. ("Inc.") and Alpharma U.S.
Inc. ("U.S."; Inc. and U.S. collectively referred to herein
as the "Company").
WHEREAS, Employee is presently employed by
the Company as President, Animal Health Division and Vice
President; and
WHEREAS, Employee and the Company have agreed to
change Employee's position with the Company on the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing,
and other good and valuable consideration, Employee and the
Company agree and covenant as follows:
1. Employee shall resign his current offices with
the
Company of President, Animal Health Division and Vice
President on April 30, 1997. From the period beginning on
May 1, 1997 through April 30, 2000 (the "Term"), Employee
shall instead be employed by the Company with the title
"Senior Business Advisor" and shall have the duties and
responsibilities outlined in Exhibit A attached hereto.
2. In exchange for Employee's services and
agreements
herein, the Company shall provide Employee with monetary
payments and benefits beginning on May 1, 1997 as
described more fully in Exhibit A, which is expressly made
a part of this Agreement as though set forth fully herein.
3. The employment agreement between Employee and
the
Company dated December 31, 1995 is hereby terminated in its
entirety and shall be superseded by this Agreement.
Employee and the Company expressly understand and agree that
the payments to and benefits received by Employee pursuant
to this Agreement shall be in lieu of any, and all other
amounts to which Employee is entitled from the Company
except as otherwise provided in this Agreement.
4. Employee hereby agrees and covenants, as a
condition of
the Company's performance of its obligations
arising from this Agreement that he:
A. shall execute the Release attached hereto as Exhibit
B
and deliver an original copy to the Company;
B. shall, at the end of the Term, execute the
Release
attached hereto as Exhibit C and deliver an original copy to
the Company;
C. shall comply fully with the provisions included
in
Exhibit D of this Agreement;
D. shall not make any derogatory and/or untruthful
statements about the Company to any clients,
competitors, suppliers, accounting firms, banks,
analysts, brokerage houses, professional organizations,
employees, former
employees of the Company or other persons (including but not
limited to the press or other media);
E. shall not usurp, for his own personal use or the use
of any other person or entity which is related to him
or in
which he has any financial interest, any opportunity,
transaction, deal or concept, relating to the business
of the Company, which he was exposed to during his
employment with the Company or will be exposed to
during the Term;
F. has received and will continue to receive
Confidential Information during his employment with the
Company. "Confidential Information" includes, without
limitation, (i) the Company's income statements,
balance sheets, assets, liabilities, finances, budgets,
projections, plans, cash flows, accounts, reserves, or
other financial information; (ii) the Company's
products, services, equipment, purchases, suppliers,
customers, sales, or distribution, and/or (iii) the
Company's trade secrets, research, yields, ideas,
plans, designs, specifications, manufacturing or other
drawings, documents, data, programs, or materials.
Confidential Information includes all parts or copies
thereof and any information derived therefrom. Employee
confirms that all Confidential Information is and will
remain the property of the Company and will not be
published, reproduced, disclosed, or released in whole
or in part by Employee to any third party, except as
required by law. Employee will not use Confidential
Information (x) for Employee's own benefit or business
purposes, (y) to organize information in Employee's
possession or in the public domain to duplicate or
approximate any Confidential Information, or (z) to
provide services, lectures, articles, or information to
any third party except as requested by the Company. At
the end of the Term, Employee will deliver to the
Company all documents, computer files, diskettes,
records, notebooks, memoranda, drawings,
specifications, models, data, equipment, or other
tangible items, and all copies thereof, that may
contain or reflect Confidential Information then in
Employee's possession or control, whether prepared by
Employee or by others.
6. Employee represents and acknowledges that in
executing
this Agreement, he has not relied upon any
representation or
statement made by the Company not set forth herein.
7.The provisions of this Agreement are severable,
and if
any part of it is found to be unenforceable, the other
paragraphs shall remain fully valid and enforceable. This
Agreement shall survive the termination of any
arrangements contained
herein.
8. The foregoing, together with all
Exhibits
attached
hereto represents the entire
agreement between the parties and
supersedes all prior agreements or
understandings, written or oral,
between the parties. This
Agreement may not be changed except
by an instrument in writing signed
by the parties hereto.
9. This Agreement shall be governed
by and
construed and
enforced with, the laws of the
State of New Jersey applicable to
contracts made and performed
therein. Employee acknowledges and
agrees that in the event of any
breach hereof by him, the Company
will suffer irreparable and
immediate harm for which money
damages alone could not compensate
it. Accordingly, the Company shall
be entitled to all available
equitable relief, as well as to its
other legal remedies.
* * * * * * * * * * * * * *
COMPANY
_________________________
By:
Title:
David E. Cohen
_________________________
Exhibit A
1. Effective April 30, 1997, Employee
will (a) resign
as
Vice President and President, Animal
Health Division and (b) undertake the
position of Senior Business Advisor for
the Animal Health Division of the Company
("AHD") for the Term.
2. During the Term:
(a) The Company will pay Employee a
regular
biweekly salary
based on a base salary of $230,000 per
year. Employee shall not be entitled to
participate in any incentive program during
the Term but in lieu thereof shall be
entitled to receive $1260 per day for each
day in excess of 30 days per calendar year
(with appropriate pro-ration for partial
years during the Term) or ten days in any
month that Employee is engaged in
fulfilling the responsibilities. The base
salary shall not include accrued vacation
time for 1997, which shall be paid to
Employee in accordance with Company policy.
Employee acknowledges and agrees that he
will not accrue any vacation for his
service in 1998, 1999 and 2000.
(b) As Senior Business Advisor, Employee
will be an employee of the Company
entitled to all benefits available
to, and on the same terms as the
Company provides to, its senior executives in the
United States, including health, disability and
life insurance, tax planning allowance,
participation in the savings and stock purchase
plans and continued payment of Employee's
existing automobile allowance (it being
understood that if the Company's plans do not
permit Employee to participate in any of the
foregoing due to his status in any year, the
Company shall provide Employee with equivalent
benefits from an outside provider). With
respect to the Company's retirement plan,
Employee's participation shall continue under the
qualified Alpharma Pension Plan and the Company's
Supplemental Pension Plan unless his status
prevents such continued participation-in which
event he will be entitled to additional
supplemental benefits to compensate him as if he
had continued participation in such retirement
plans during the period he is Senior Business
Advisor.
(c) Employee will be reimbursed for all direct
expenses incurred while executing his duties as
Senior Business Advisor per Company policy.
(d) Employee's responsibilities ("Responsibilities")
as
Senior Business Advisor shall be to provide such
consultation to the senior officers of AHD or the
Company as is requested from time to time by the
President of AHD or the CEO of the Company and to
undertake such special projects or assignments as
may be assigned to Employee by the President of
AHD or the CEO of the Company. During the first
60 days of the Term, Employee will work closely
with his successor as President of AHD to ensure
a smooth and effective transition in leadership
of that division. Employee shall perform his
responsibilities to the best of his abilities and
shall only take on such employment or other
business activities during the Term which (i) do
not conflict with the provisions set forth in
Exhibit D of this Agreement, and (ii) do not
interfere with his ability to perform any of the
Responsibilities. The Company agrees that
Employee shall not be required to provide
services for more than 100 days in any
consecutive 12 month period and that any requests
for Employee's services or assignment to him of
any project shall be made with the Company's best
efforts to accommodate his personal schedule or
health concerns that Employee may have. Employee
agrees to use his reasonable efforts to respond
to and carry out requests or assignments.
Employee shall not be required to travel outside
the United States (except for 2 trips of up to 7
days to Europe per year) without his consent, not
to be unreasonably withheld.
(e) In view of Employee's length of service,
Stock Options granted to Employee prior to April
30, 1997 shall be exercisable for 12 months
following termination of his employment for any
reason (other than cause) as to all options
which were exercisable as of the date of
termination (except for the short term options
granted in May 1995 which expire on March 31,
1999 and will be exercisable until such date).
(f) The Term of this Agreement may be terminated early
by
the Company only for cause.
1. The term "cause" as used in this Agreement shall
have
the following definition: cause means:
(a) continuing conduct of Executive which is
detrimental to the business or affairs of the
Company or any of its divisions or subsidiaries
after Executive has been warned in writing by
the CEO to cease such conduct
(b) theft or embezzlement from the Company or any of
its
divisions or subsidiaries; or
(c) any other material breach of the Agreement
which is not cured within 30 days after written
notice to Executive setting forth the breach.
Exhibit B RELEASE
This Release is entered into between DAVID E. COHEN
("Employee") and ALPHARMA INC. and its wholly
owned subsidiary ALPHARMA U.S. INC. (collectively "the
Company")
on this 28th day of April 1997 and consists of
the following provisions:
1. The Company will pay or provide all
benefits, as
defined and described in the Agreement between
Employee and the Company dated April
28, 1997 (the "Agreement"). The
Company shall pay or provide said benefits to
Employee in accordance with the terms of
the Agreement, which are incorporated herein
and made a part hereof as if fully set forth
herein.
2. (a) In consideration of the
promises of
the Company in Paragraph 1, which Employee
acknowledges
provide good and valuable consideration that
Employee would not otherwise be entitled to
receive, Employee, an at-will
employee of the Company, hereby releases the
Company and/or any and
all of the Company's past and/or present
predecessors, successors, assigns, parents,
shareholders, subsidiaries, divisions,
affiliates, officers, directors, trustees,
agents, administrators, representatives,
employees, attorneys, insurers or fiduciaries,
in their individual and/or representative
capacities (hereinafter collectively referred
to as the "Releasees") from any and all claims,
demands, liens, agreements, contracts,
covenants, actions, suits, causes of action,
obligations, controversies, debts, costs,
expenses, damages, judgments, orders,
liabilities of whatever kind or nature, in law or
equity, by statute or otherwise, whether now
known or unknown, vested or contingent,
suspected or unsuspected, and whether or not
concealed or hidden, which have existed or may
have existed, or which do exist ("Claims") of any
kind which Employee (including its heirs,
assigns, or executors) now has against the
Releasees which relate in any way to Employee's
employment with the Company or any matter
otherwise arising on or prior to the date of
execution of this Release. Such released Claims
include, without in any way limiting the
generality of the foregoing language, any and all
claims under the Age Discrimination in Employment
Act of 1967, as amended, Title VII of the Civil
Rights' Act of 1964, as amended, the Americans
with Disabilities Act of 1990, the Civil Rights
Act of 1991, the Reconstruction Era, Civil Rights
Act, as amended, the Family and Medical Leave Act
of 1993, the Worker Adjustment and
Retraining Notification Act, the Employee
Retirement Income Security Act of 1974, as
amended, the Fair Labor Standards Act, the United
States Constitution, the Constitution of the
State of New Jersey, and/or any and all other
local, state, or federal statute, law, order,
rule, regulation or ordinance (including but not
limited to those relating to labor, employment
benefits, or wages), and/or any and all contract
or tort claims.
(b) In signing this Release, Employee
intends that it shall be effective as a bar to
each and every one of the Claims hereinabove
mentioned or implied. Employee expressly
consents that this Release shall be given full
force and effect according to each and all of
its express terms and provisions, including
those relating to unknown and unsuspected Claims
(notwithstanding any state statute that expressly
limits the effectiveness of a general release
of unknown, unsuspected, and unanticipated
Claims), if any, as well as those relating to any
of the Claims hereinabove mentioned or
implied.
Employee acknowledges and agrees that this
waiver is an essential and material term of
this Release and without such waiver the Company
would not have made the promises described in
the first paragraph of this Release.
(c) Employee further agrees that in
the event Employee brings his own Claim in
which Employee seeks damages against the
Releasees or in the event Employee seeks to
recover against the Releasees on any Claim
brought by a governmental agency on its
behalf, this Release shall serve as a complete
defense to such Claims.
(d) Employee understands and agrees
that the
Company's payment of benefits to Employee or on
Employee's behalf and Employee's signing of
this Release are not in any way to be interpreted
as admissions by the Company that Employee has any
viable Claims against the Company.
3. Employee understands that any payments made to
Employee pursuant to Paragraph 1 hereof,
including benefits paid or granted to Employee,
represent consideration for signing
this Release and are not salary, wages, or
benefits to which Employee was already entitled.
Employee also acknowledges and represents that
except as otherwise provided herein, Employee is
not entitled to any other payments or benefits
from the Company, including without limitation
backpay, front pay, interest, bonuses, damages,
accrued vacation, sick leave or discretionary
days, overtime, compensatory time, insurance
benefits, outplacement, severance pay and/or
attorney's fees.
4. Binding in Fact. This Release shall be
binding upon and inure to the benefit of the
Releasees and Employee and the heirs, executors,
administrators, successors and assigns of each of
them.
5. No Other Agreement. This Release contains
the entire agreement between the Company and
Employee with respect to the subject matter
hereof and Employee acknowledges that the Company
made no warranties, promises, or representations
of any kind, express or implied, upon which he
has relied in entering into
this Release, other than the promises
described in the first paragraph. The terms and
conditions of this Release are contractual and
not a mere recital. No part of this Release
may be changed except in writing executed by
the Company and Employee.
6. Governing Law and Severability. This Release
shall be interpreted in accordance with the laws
of the State of New Jersey. Whenever possible,
each provision of this Release shall be
interpreted in such a manner as to be effective
and valid under applicable law, but if any
provision of this Release shall be held to be
prohibited by or invalid under applicable law,
such provision shall be ineffective only to the
extent of such prohibition or invalidity,
without invalidating or affecting in any manner
whatsoever the remainder of such provision or
the remaining provisions of this Release.
7. Employee acknowledges that he has read this
Release carefully and understands all of its
terms. Employee understands that Employee has
the right to and has been advised and
encouraged in writing to obtain the advice of
legal counsel prior to signing this Release and
has been provided forty-five (45) days to
consider this Release before signing it.
Employee also understands that Employee has seven
(7) days from the date Employee signs this
Release to revoke the Release, and until the
expiration of this seven-day period the
Release shall not be effective or enforceable
and no payments shall be due, owning or paid by
the Company. Employee further acknowledges that
Employee has not been forced or pressured in any
manner whatsoever to sign this Release, and
Employee agrees to all of its terms voluntarily.
COMPANY
__________________________
By:________________________ David E. Cohen
__________________________
___________________________ Dated:
Dated:
SWORN AND SUBSCRIBED TO SWORN AND
SUBSCRIBED TO
before me this ___ day of _______, before me this
___ day of _____, 1997. 1997.
__________________________
_____________________________ Notary Public Notary
Public
My Commission Expires: My Commission
Expires:
Exhibit C
RELEASE
This Release is entered into between DAVID
E. COHEN ("Employee") and ALPHARMA INC. and
its wholly-owned subsidiary ALPHARMA U.S. INC.
(collectively "the Company") on this 30th day of
April 2000 and consists of the following
provisions:
1. The Company has paid or will provide all
benefits, as
defined and described in the Agreement between
Employee and the Company dated April 28, 1997
(the "Agreement"). The Company has paid or
will provide said benefits to Employee in
accordance with the terms of the Agreement,
which are incorporated herein and made a part
hereof as if fully set forth herein.
2. (a) In consideration of the
promises of
the Company in Paragraph 1, which Employee
acknowledges provide good and valuable
consideration that Employee would not otherwise
be entitled to receive, Employee, an at-will
employee of the Company, hereby releases the
Company and/or any and all of the
Company's past and/or present predecessors,
successors, assigns, parents, shareholders,
subsidiaries, divisions, affiliates, officers,
directors, trustees, agents,
administrators, representatives, employees,
attorneys, insurers or fiduciaries, in their
individual and/or representative capacities
(hereinafter collectively referred to as the
"Releasees") from any and all claims,
demands, liens, agreements, contracts,
covenants, actions, suits, causes of action,
obligations, controversies, debts, costs,
expenses, damages, judgments, orders,
liabilities of whatever kind or nature, in law
or equity, by statute or otherwise, whether
now known or unknown, vested or contingent,
suspected or unsuspected, and whether or not
concealed or hidden, which have existed or may
have existed, or which do exist ("Claims") of any
kind which Employee (including its heirs,
assigns, or executors) now has against the
Releasees which relate in any way to Employee's
employment with the Company or any matter
otherwise arising on or prior to the date of
execution of this Release. Such released Claims
include, without in any way limiting the
generality of the foregoing language, any and all
claims under the Age Discrimination in Employment
Act of 1967, as amended, Title VII of the Civil
Rights' Act of 1964, as amended, the Americans
with Disabilities Act of 1990, the Civil Rights
Act of 1991, the Reconstruction Era, Civil Rights
Act, as amended, the Family and Medical Leave Act
of 1993, the Worker Adjustment and
Retraining Notification Act, the Employee
Retirement Income Security Act of 1974, as
amended, the Fair Labor Standards Act, the United
States Constitution, the Constitution of the
State of New Jersey, and/or any and all other
local, state, or federal statute, law, order,
rule, regulation or ordinance (including but not
limited to those relating to labor, employment
benefits, or wages), and/or any and all contract
or tort claims.
(b) In signing this Release, Employee
intends that it shall be effective as a bar to
each and every one of the Claims hereinabove
mentioned or implied. Employee
expressly consents that this Release shall be
given full force and effect according to each
and all of its express terms and provisions,
including those relating to unknown and
unsuspected Claims (notwithstanding any state
statute that expressly limits the
effectiveness of a general release of
unknown, unsuspected, and unanticipated
Claims), if any, as well as those relating to any
of the Claims hereinabove mentioned or
implied. Employee acknowledges and agrees
that this waiver is an essential and material
term of this Release and without such waiver the
Company would not have made the promises
described in the first paragraph of this
Release.
(c) Employee further agrees that in
the event Employee brings his own Claim in
which Employee seeks damages against the
Releasees or in the event Employee seeks to
recover against the Releasees on any Claim
brought by a governmental agency on its
behalf, this Release shall serve as a complete
defense to such Claims.
(d) Employee understands and agrees
that the
Company's payment of benefits to Employee or on
Employee's behalf and Employee's signing of
this Release are not in any way to be
interpreted as admissions by the Company that
Employee has any viable Claims against the
Company.
3. Employee understands that any payments made to
Employee pursuant to Paragraph 1 hereof,
including benefits paid or granted to Employee,
represent consideration for signing this
Release and are not salary, wages, or benefits to
which Employee was already entitled. Employee
also acknowledges and represents that except as
otherwise provided herein, Employee is not
entitled to any other payments or benefits from
the Company, including without limitation
backpay, front pay, interest,
bonuses, damages, accrued vacation, sick leave or
discretionary days, overtime, compensatory time,
insurance benefits, outplacement, severance pay
and/or attorney's fees.
4. Binding in Fact. This Release shall be
binding upon and inure to the benefit of the
Releasees and Employee and the heirs, executors,
administrators, successors and assigns of each of
them.
5. No Other Agreement. This Release contains
the entire agreement between the Company and
Employee with respect to the subject matter
hereof and Employee acknowledges that the Company
made no warranties, promises, or representations
of any kind, express or implied, upon which he
has relied in entering into
this Release, other than the promises
described in the first paragraph. The terms and
conditions of this Release are contractual and
not a mere recital. No part of this Release
may be changed except in writing executed by
the Company and Employee.
6. Governing Law and Severability. This Release
shall be interpreted in accordance with the laws
of the State of New Jersey. Whenever possible,
each provision of this Release shall be
interpreted in such a manner as to be effective
and valid under applicable law, but if any
provision of this Release shall be held to be
prohibited by or invalid under applicable law,
such provision shall be ineffective only to the
extent of such prohibition or invalidity,
without invalidating or affecting in any manner
whatsoever the remainder of such provision or
the remaining provisions of this Release.
7. Employee acknowledges that he has read
this Release carefully and understands all of
its terms. Employee understands that Employee
has the right to and has been advised and
encouraged in writing to obtain the advice of
legal counsel prior to signing this Release and
has been
provided forty-five (45) days to consider
this Release before signing it. Employee also
understands that Employee has seven (7) days from
the date Employee signs this Release to revoke
the Release, and until the expiration of this
seven-day period the Release shall not be
effective or enforceable and no payments shall
be due, owning or paid by the Company.
Employee further acknowledges that Employee has
not been forced or pressured in any manner
whatsoever to sign this Release, and Employee
agrees to all of its terms voluntarily.
COMPANY
__________________________
By:__________________________ David E. Cohen
__________________________
_____________________________ Dated:
Dated:
SWORN AND SUBSCRIBED TO SWORN AND
SUBSCRIBED TO
before me this ___ day of _______, before me
this ___
day of _____,
2000. 2000.
__________________________
______________________________ Notary Public
Notary Public
My Commission Expires: My Commission
Expires:
Exhibit D
1. Non-Competition Covenant.
a. Non-Competition. Employee agrees
that he shall not, during the Term and for a
period of one year thereafter, directly or
indirectly carry on any business that is
directly or indirectly competitive with or
similar to the business of the Animal Health
Division (AHD) of the Company as a conducted
prior to April 30, 2000 in any state, territory,
or possession of the United States, or in any
country in the world, in which AHD conducted
business during the two years preceding April 30,
2000. For purposes of this agreement, AHD will
be deemed to have conducted business in any
county, state, territory, possession or country
where it has or had customers or solicited
customers, or where it has or had employees,
consultants, sales representative or
distributors.
b. Scope of Non-Competition Covenant.
For purposes of this agreement, each of the
following activities, without limitation, shall
be deemed to constitute carrying on a business;
to engage in, work with, be employed by, consult
for, invest in, have a financial interest in,
advise, lend money to, guarantee the debts of,
contribute, sell or license intellectual property
to, or permit one's name or any part thereof to
be used in connection with, any enterprise or
endeavor, either individually, in partnership or
in conjunction, whether as principal, agent,
employee, partner, director, officer or
consultant, or in any other manner whatsoever,
with or
without compensation therefor. Nothing contained
in this agreement shall prohibit Employee from
acquiring or holding as a passive investor less
than three percent (3%) of the outstanding
securities of any publicly traded company.
2. Non-Solicitation of Employees. Employee
agrees that he shall not, until the later of one
(1) year after the Term either for himself or for
any other person or entity, directly or
indirectly, solicit, encourage, induce or attempt
to induce any person to terminate his or her
employment with the Company.
3. Acknowledgment. Employee acknowledges
and agrees that the covenants set forth in this
Exhibit D are reasonable in scope, duration,
geographic area and in all other respects.
4. Severability. If any provision of this
Exhibit D shall be determined by any court of
competent jurisdiction to be invalid, illegal or
unenforceable in whole or in part, and such
determination shall become final, such provision
shall be deemed to be severed or limited, but
only to the extent required to render the
remaining provisions of this agreement
enforceable. This agreement as thus amended
shall be enforced to give effect to the intention
of the parties insofar as that is possible.
5. Remedies. Employee and the Company
acknowledge
and agree that damages would not adequately
compensate the Company if Employee were to breach
any of his covenants contained in this Exhibit D
and that the Company would have no adequate
remedy at law. Accordingly, Employee agrees that
in the event of any such breach, the Company
shall be entitled, in addition to any other
rights and remedies existing in its favor, to
enforce its rights under this agreement, not only
by an action or actions for damages, but also by
an action or actions for specific performance,
injunction and/or other equitable relief in order
to enforce or prevent any violations (whether
anticipatory, continuing or future) of the
provisions of this Exhibit D (including, without
limitation, the extension of the term of this
Exhibit D by a period equal to (i) the length of
the violation of this term plus (ii) the length
of any court proceedings necessary to stop such
violation).
6. Cost of Enforcement. If any part of
this Agreement seeks to enforce its rights under
this Exhibit D by legal proceedings or otherwise,
the non-prevailing party shall pay all costs and
expenses incurred by the prevailing party,
including, without limitation, all reasonable
attorney's and experts' fees.