EXHIBIT 10.9.4
AMENDMENT TO EMPLOYMENT AGREEMENT
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This Agreement, entered into on this 18th day of June, 2003
("Amendment") by and between Scott Tarriff ("Executive") and Pharmaceutical
Resources, Inc., a New Jersey corporation ("Resources"), is an amendment to that
Employment Agreement entered into as of the 6th day of February, 2003
("Employment Agreement"). This Amendment incorporates by reference the
definitions and other terms contained in the Employment Agreement, unless
otherwise specified herein.
RECITALS
A. WHEREAS, Executive is currently employed by the Employer pursuant to the
Employment Agreement;
B. WHEREAS, in light of the anticipated retirement of Resources Chief
Executive Officer ("CEO") and Par Chairman of the Board ("Chairman") Kenneth
Sawyer, the parties wish to secure continuity of business functions, and assure
a smooth transition to a new CEO and Chairman to be appointed ("New CEO"); and
C. WHEREAS, to accomplish these goals, the parties desire to amend certain
provisions of the Employment Agreement, and their respective rights and
obligations thereunder during and after such transition.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. PERIOD OF MUTUAL COMMITMENT TO EMPLOYMENT. Employer and Executive agree
that for a period of (i) nine (9) months following the date of the Amendment, or
(ii) four (4) months after the commencement of the service of a New CEO,
whichever is greater ("Commitment Period"), Employer shall not exercise its
rights under Section 3.2.5 of the Employment Agreement to terminate the
Employment Term Without Cause, and Executive shall not exercise his rights under
Section 3.2.2 of the Employment Agreement to terminate the Employment Term
Without Cause, or under Section 3.2.6(ii) of the Employment Agreement upon the
Employer's material breach. Unless otherwise agreed in writing by the parties
hereto, the Commitment Period shall not exceed one (1) year from the date of
this Amendment.
2. DUTIES DURING AND AFTER THE COMMITMENT PERIOD. Executive's duties
following the execution of this Amendment shall include, in addition to his
duties under the Employment Agreement (unless otherwise directed): (i) to assist
in the search for and hiring of a New CEO, as directed by the Independent
Directors of the Board, or their designated Lead Director ("Lead Director");
(ii) to assist in effecting an orderly transition of all Par and Resources
business to the New CEO following his or her hire by the Employer; (iii) to take
direction from and to report fully and regularly to the Lead Director as
requested, on all matters related to business transactions, operations,
finances, and any other matters material to Par and/or Resources, within
Executive's purview or knowledge; and (iv) to carry out such other or different
duties as may from time to time be directed by the Lead Director or the New CEO.
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3. ELECTION BY EITHER PARTY TO SEPARATE UPON CONCLUSION OF THE COMMITMENT
PERIOD. At the conclusion of the Commitment Period, and for a period of up to
two (2) months thereafter ("Separation Period"), either Executive or Employer
may, upon no less than fifteen (15) days prior written notice to the other
specifying the Date of Termination, elect to terminate the Employment Term for
any reason or no reason ("Election to Separate"). In the event either party
exercises its Election to Separate during the Separation Period, and only in
such event, Employer's obligations to Executive shall be exclusively as set
forth in Section 3 hereof.
3.1. SEVERANCE AMOUNT AND RELEASE. In the event of an Election to
Separate under Section 3 hereof by either party, and only in such event, and
subject to the provisions of Section 7 hereof, Employer shall pay to Executive,
in lieu of any other bonus or severance pay, the Severance Amount of $1 million,
in twelve (12) equal installments over the course of one (1) year from the Date
of Termination, in accordance with Employer's regular payroll practices. As a
condition of payment of such Severance Amount by Employer, Executive shall
execute a General Release of All Claims against Employer, its parent
corporations, subsidiaries and affiliates, successors and assigns, and their
respective Directors, Officers, agents and employees, in a form satisfactory to
Employer and Executive.
3.2. STOCK OPTIONS. In the event of an Election to Separate under
Section 3 hereof by either party, and only in such event, Stock Options which
were granted to Executive up to and including the Date of Termination and which
had not vested as of the Date of Termination (the "Unvested Options"), shall be
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permitted to vest (except as otherwise provided herein) in accordance with the
schedule attached hereto as "Schedule A", which shall supersede the existing
vesting schedules for the Unvested Options; provided, that the relevant stock
option plan remains in effect and such stock options shall not have otherwise
expired in accordance with the terms thereof. In connection herewith, Employer
agrees to use commercially reasonable efforts to amend Executive's Stock Option
Agreements, if necessary to effectuate the provisions of this Section 3.2. In
the event Executive breaches his obligations under Sections 5 or 6 hereof, or
receives notice terminating his stock options pursuant to Section 7 hereof, all
unexercised Options, whether vested or unvested, shall terminate immediately and
be of no further force and effect.
3.3. OTHER PAY AND BENEFITS. In the event of an Election to Separate
under Section 3 hereof by either party, the Employer shall pay to Executive, in
a single lump-sum, an amount equal to any unpaid but earned Base Salary through
the Date of Termination, and shall reimburse Executive for any unpaid expenses
incurred prior to the Date of Termination pursuant to Section 2.5.1 of the
Employment Agreement, in accordance with the Employer's reimbursement policies.
Executive may elect to receive health care continuation coverage pursuant to
COBRA, if applicable, and Employer will reimburse Executive the cost of such
coverage for a period of up to twelve (12) months following his separation from
employment by Election to Separate. Nothing herein shall prevent consideration
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by the Employer's Compensation Committee of any discretionary bonus for
Executive.
3.4. EXCLUSIVE RIGHTS. Executive's rights under this Section 3 are
Executive's sole and exclusive rights against Employer and Employer's sole and
exclusive liability to Executive under this Amendment, whether in contract, tort
or otherwise, with respect to any termination of the employment relationship or
rights arising under or related to the employment relationship. Executive
covenants not to sue or assert any claim, demand or cause of action against
Employer for any sums other than those specified in this Section 3. If Executive
breaches this covenant, Employer shall be entitled to recover from Executive all
sums expended by Employer (including costs and attorneys fees) in connection
with such suit, claim, demand or cause of action.
3.5. EMPLOYER'S RIGHTS PRESERVED. Employer may terminate the
Employment Term pursuant to Sections 3.2.4, 3.3 and 3.3.1 of the Employment
Agreement, provided that such Termination is based on events, conduct, acts or
omissions of Executive occurring or discovered after the date of this Amendment;
and in such event, the rights and obligations of the parties shall be
exclusively as set forth in the Employment Agreement, as amended hereby, and
Executive shall not be entitled to the benefits provided in Sections 3.1 or 3.2
hereof.
3.6. EFFECT OF NEITHER PARTY ELECTING TO SEPARATE. Should neither
party issue a notice of Election to Separate prior to the conclusion of the
Separation Period, Section 3 hereof shall expire, and the rights and obligations
of the parties shall thereafter be governed by the Employment Agreement, as
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amended hereby, excluding Section 3 hereof.
4. SIMULTANEOUS TERMINATION OF DIRECTORSHIP AND OTHER OFFICES. In the event
of any action resulting in the termination of the Employment Term by either
party for any reason, including an Election to Separate, Executive shall
immediately tender his resignation from, and shall be deemed by Employer to have
resigned from, any and all positions as Director, Officer or Fiduciary as to the
Employer or any parent company, affiliate, or subsidiary thereof, or any benefit
plan or other entity sponsored thereby.
5. NON-COMPETITION AND PROTECTION OF CONFIDENTIAL INFORMATION AND TRADE
SECRETS; NO SOLICITATION.
5.1. EMPLOYER'S PROTECTIBLE INTEREST IN ITS CONFIDENTIAL INFORMATION.
Executive acknowledges that he has been employed by Employer in executive and
chief executive capacities since 1998. Executive acknowledges that, in those
fiduciary capacities, he has been afforded unimpeded access to the Employer's
trade secrets, intellectual property, business opportunities, confidences,
business and strategic plans, methods of operation, formulas and formulations,
research and development programs, and all other confidential, internal and
proprietary information of the Employer (together, and as further defined below
in this Section and Section 5.10 hereof, the "Confidential Information") upon
which Employer's business is premised, and which Executive acknowledges is
essential for Employer's business success. Executive further acknowledges that
such Confidential Information includes and constitutes Trade Secrets and
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information not readily available to the general public, which would not have
been disclosed to or learned of by Executive had he not been employed by the
Employer in executive capacities and positions of trust. Executive acknowledges
that the Confidential Information is a protectible interest of the Employer
under applicable law.
5.1.1. INTELLECTUAL PROPERTY. Executive acknowledges that, as
part of Employer's confidences and trust reposed in him, he has been afforded
unimpeded access to Employer's Intellectual Property. As used herein
"Intellectual Property" shall mean and include all research and development,
patent applications, patent research and development strategies and planning,
protocols for design and approval of products, development plans for
manufacturing, sites and raw materials, and all other or related intellectual
property of Employer or generated on Employer's behalf or for its benefit with
or through others. Executive further acknowledges that all such Intellectual
Property is valuable property of Employer, not of Executive, and constitutes
Confidential Information and Trade Secrets in which Employer has a protectible
interest under applicable law.
5.1.2. BUSINESS RELATIONSHIPS WITH THIRD PARTIES. Executive
acknowledges that, in significant part, Employer conducts its business and
intends to conduct future business through business relationships with third
parties such as agents, contractors, vendors, business partners or affiliates,
or joint-venturers who, with Employer or on its behalf or for its benefit,
engage, inter alia, in research and development, patent strategy or
applications, manufacturing, distribution, or similar business enterprises
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significant to Employer's business ("Third-Party Relationships"). Executive
agrees that the work product and content of Employer's business plans,
relationships, financial arrangements, product development and business
confidences involved in the Third Party Relationships, and those planned for or
engaged in the future, are Confidential Information in which Employer has a
protectible interest under applicable law.
5.2. UNIQUE CHARACTER OF EXECUTIVE'S POSITION. Executive further
acknowledges that his duties for the Employer in executive and chief executive
capacities are and were of a special, unique, extraordinary and intellectual
character which placed him in a position of trust and responsibility for the
Employer in relation to its specialized business, including, without limitation,
trust and responsibility relating to conceptualization and/or implementation of
the Employer's marketing and sales strategies, business relationships developed
by Executive with the clients and potential clients of Employer, public and
investor communications, strategic plans, business targets, projects, partners,
and product developments in the unique aspects of the pharmaceutical and generic
pharmaceutical business conducted by Employer. Therefore, Executive acknowledges
that each of the restrictions set forth in Section 5.4 below are reasonable and
necessary to protect the Employer from unfair competition by any party using or
seeking to use the Employer's Confidential Information and Trade Secrets, or
using or seeking to use the Executive's unique skills and knowledge acquired
with and for the Employer, or his position of trust with the Employer, to the
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Employer's disadvantage.
5.3. NATIONAL AND INTERNATIONAL SCOPE OF BUSINESS. Executive
acknowledges that Employer's business includes manufacture, distribution and/or
sale on its own behalf and through Third Party Relationships, is nation-wide in
scope among the fifty United States, and also includes Israel and other
locations or markets in which Employer has or is developing a Market Presence,
as hereafter defined. Accordingly, Executive acknowledges that the restrictions
set forth in Sections 5.4 and 5.4.1 below are reasonable in their national and
international scope and geographic territory.
5.4. COVENANT NOT TO COMPETE. Executive agrees that, at all times
during his employment by Employer, and for a period of not less than ONE (1)
YEAR from the date such employment relationship is terminated, irrespective of
the reason for the termination of the employment relationship, EXECUTIVE SHALL
NOT, directly or indirectly, on his own behalf or for his own benefit, or on
behalf of or for the benefit of another (other than the Employer), own, operate,
manage, engage in, participate in, be employed by, affiliate with, or provide
material assistance to, contract for services for or with, render advice or
services to or otherwise assist in any capacity, directly or indirectly (whether
as an officer, director, partner, agent, investor, consultant, contractor,
employee, equityholder, lender, counselor, or otherwise) any Competitive
Enterprise, as defined in Section 5.4.1. below. Nothing herein shall prevent
Executive from owning up to 2% of publicly traded securities in a Competitive
Enterprise.
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5.4.1. DEFINITION OF COMPETITIVE ENTERPRISE AND GEOGRAPHIC
TERRITORY COVERED. As used herein, and notwithstanding anything to the contrary
in the Employment Agreement, the term "Competitive Enterprise" means and
includes any person, association, business, or entity: (a) that manufactures,
markets, licenses, distributes, contracts for the sale of, or sells (or causes
to be manufactured, marketed, licensed, distributed, contracted for or sold
through others) any product, that competes with, or is developing any product
that is intended to compete with (i) any product manufactured, marketed,
distributed, licensed, contracted for sale or sold by Employer or through its
Third Party Relationships, or (ii) any product which the Employer has developed,
targeted for development, or is developing for manufacture, marketing, license,
distribution, contract, or sale and which is projected to reach the wholesale or
retail market within five (5) years of the date of this Amendment (each, a
"Competitive Product"); or (b) that obtains finished goods, source materials, or
research and development (i) from any source or supplier with whom Employer
regularly does business ("Employer Source"), or (ii) to formulate any
Competitive Product. The geographic territory covered by the term "Competitive
Enterprises" includes any such person, association, business or entity (a) doing
business in the United States or in Israel or any other location or market in
which the Employer has a Market Presence (defined as more than de MINIMUS gross
revenue as to any product line or business of Employer as of the Date of
Termination), whether or not through a Third Party Relationship, or (b)
obtaining finished goods, source materials, or resources and development for a
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Competitive Product in any location or market in which Employer does so, or from
any Employer Source, wherever located; and includes any person, association,
business or entity, (c) outside the United States or Israel which manufactures,
markets, licenses, contracts for, distributes or sells (or causes to be
manufactured, marketed, licensed, contracted for, distributed or sold through
others) any Competitive Product, or engages in the development of any
Competitive Product intended to be manufactured, distributed, licensed,
contracted for or sold in the United States, Israel or any other location or
market in which Employer has a Market Presence.
5.5. COVENANT NOT TO SOLICIT SUPPLIERS AND OTHERS. Executive SHALL
NOT, while employed by Employer and for a period of TWO (2) YEARS following the
Date of Termination of the employment relationship for any reason, directly or
indirectly solicit or divert (or seek to divert) or entice away, for the benefit
of Executive or any other person or entity, or cause (or attempt to cause) or
persuade in any manner to cease doing business with Employer or reduce its level
of business with Employer, any Third Party Relationship, client, supplier,
vendor, contractor, business partner, licensee, licensor, agent or investor, or
supplier of source materials or finished goods, product lines or research, who
was doing business with Employer at any time within 12 months prior to the Date
of Termination, or who was actively engaged in discussions in contemplation of
any such business relationship during such period. During the above-referenced
2-year period, Executive may not accept business from any of the
above-referenced entities where doing so would have the effect of diverting
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Employer's existing business, or would have the effect of reducing its existing
level of business with such entities.
5.6. COVENANT NOT TO HIRE OR SOLICIT EMPLOYEES. Except with the
express written permission of Employer, Executive SHALL NOT, while employed by
Employer and for a period of TWO (2) YEARS following the date of termination of
the employment relationship for any reason, directly or indirectly hire, retain
or engage, or offer to hire, retain or engage, or solicit for employment or
other retention or engagement of services, or otherwise induce to leave
Employer, for the benefit of Executive or any other person or entity, any
employee, consultant or contractor who is then employed by or engaged by
Employer or was so employed or engaged as of the Date of Termination.
5.7. TOLLING DURING PERIODS OF VIOLATION. The parties agree that, in
the event Executive violates any of the provisions of Sections 5.4, 5.5 or 5.6
hereof during the time periods of restriction set forth respectively therein,
any such period of restriction shall be tolled for the duration of such
violation, and the applicable period of restriction shall not expire, and shall
be extended for a period of time commensurate with the duration of the
violation.
5.8. GOODWILL. Executive acknowledges that, through and solely as a
result of his employment by Employer, he has acquired a continuing equity stake
in the Employer's business in the form of substantial and valuable stock options
granted by Employer, portions of which grants have been exercised by Executive
to his significant economic advantage. Accordingly, solely for purposes of
enforcement of the covenants contained in this Section 5, Executive agrees to be
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deemed and regarded under applicable legal precedent as if he were in the same
position as a seller of a business interest and goodwill appurtenant thereto.
5.9. APPLICATION IRRESPECTIVE OF REASON FOR TERMINATION OF EMPLOYMENT.
In light of the acknowledgements set forth in Sections 5.1, 5.2, 5.3 and 5.8 of
this Section, and notwithstanding anything to the contrary in the Employment
Agreement, the parties agree that the provisions of this Section 5 shall apply
in the event of Executive's termination or separation from employment, whether
by Employer or Executive, whether for cause or without cause, or for any other
reason or asserted reasons.
5.10. CONFIDENTIAL INFORMATION FURTHER DEFINED; DISCLOSURE PROHIBITED.
For purposes of this Amendment, "Confidential Information" shall be defined as
set forth in Section 4.1 of the Employment Agreement, and as further set forth
in Section 5.1 hereof. Without limiting the foregoing, Confidential Information
shall include all information related to products targeted for development by
Employer, subjects of research and development, projected launch dates, FDA
protocols, projected dates for regulatory filing, consumer studies, market
research, clinical research, business plans, content of the New Product Planning
Committee ("NPP") meetings, planned expenditures, profit margins, strategic
evaluation plans and initiatives, and those commissioned by Employer through
outside vendors or consultants, such as IBM, Cap Gemini and LEK, and the content
of all business and strategic planning conducted with or through Third Party
Relationships. Executive's obligation not to disclose Confidential Information
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shall be as set forth in Section 4.2 of the Employment Agreement, and shall
include but not be limited to his obligation not to place himself in any
business position in which use or disclosure of Employer's confidences would be
likely, expected or inevitable, for his own benefit or the benefit of any other
person or entity.
5.10.1. LISTING OF ALL PRODUCTS IN DEVELOPMENT, THIRD PARTY
RELATIONSHIPS, AND OTHERS. Not later than thirty (30) days from the date hereof,
Executive shall produce, in a form acceptable to the Lead Director, a
comprehensive listing of all (i) Employer's products and potential products in
development, (ii) products under consideration for potential manufacture,
marketing, licensing, contracting for, distribution or sale, whether or not
through Third Party Relationships, (iii) Third Party Relationships engaged in
during the preceding two (2) years and all such prospective relationships
(including a brief description of their nature), and (iv) patent research and
strategic planning related to patents, their expiration or avoidance, engaged in
or commissioned during the previous two (2) years (and a brief description of
their nature). Executive shall include such other or related information or
description as may be required by the Lead Director to assure the
comprehensiveness of the listing and to facilitate its understanding. Executive
shall update the listing no less than quarterly, or as otherwise requested, and
in addition, as of his separation from employment for any reason. Employer shall
acknowledge receipt of each list. The contents of the listing shall form part of
the description of items which are included in Confidential Information
protected from disclosure by Executive under this Amendment.
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5.11. INJUNCTIVE RELIEF. All of the parties' covenants and Employer's
rights to specific enforcement, injunctive relief, and other remedies as set
forth herein and in Section 4.6 of the Employment Agreement, shall apply in the
event of any breach or threatened breach by Executive of any of the provisions
of this Section 5, or of Section 4 of the Employment Agreement, without the
requirement of posting a bond or other security in connection with any such
application for specific performance or injunctive relief, which is hereby
waived. The parties further agree that any action concerning alleged breach of
Section 4 of the Employment Agreement or Section 5 of this Amendment shall not
be brought or addressed in arbitration, and the existence of any demand for
arbitration or pendency of any dispute in arbitration under the Employment
Agreement shall not be a basis to delay or defer adjudication by a Court of any
demand for specific performance, injunctive relief, or other remedies in
relation to any alleged breach of Section 4 of the Employment Agreement or
Section 5 of this Amendment. In connection with any such action, the parties
agree that the Court may sever any provision or portion thereof of Section 4 of
the Employment Agreement or Section 5 of this Amendment which is contrary to
law, void or otherwise unenforceable, and that the remainder shall survive
unaffected, and further, that such Court may reform or limit any such void or
unenforceable provision to give maximum lawful effect to the covenants of
non-competition and non-disclosure of Confidential Information contained herein
and in the Employment Agreement.
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5.12. EMPLOYER DEFINED. For purposes of Section 5 hereof and Section 4
of the Employment Agreement, "Employer" shall mean and include Resources, Par,
FineTech, and any parent corporations, affiliates, subsidiaries, joint ventures
and related entities thereof.
6. NO DISPARAGEMENT. During or after the Employment Term, Executive shall
not disparage the former CEO or Chairman, the New CEO, or any proposed New CEO,
nor make any statement or publication tending to disparage, impugn or injure the
good name and reputation or business interests of the Employer or its products,
services, past or present officers, directors or employees regardless of the
perceived truth of such statement or publication, except as may be necessary
exclusively on an internal basis to conduct in good faith the personnel and
business affairs of Employer.
6.1. COMPLIANCE WITH LISTING OBLIGATIONS. Executive shall accurately
and comprehensively list all items set forth in Section 5.10.1. as set forth
therein, and shall certify the accuracy and completeness thereof.
6.2. CONTINUED COOPERATION. Executive shall, during and after the
conclusion of his employment relationship for any reason, cooperate fully with
Employer with respect to any internal or external agency or legal investigation
(whether FDA, SEC, or otherwise), lawsuits, financial reports, or with respect
to other matters within his knowledge, responsibilities or purview with
Employer. Employer will pay a reasonable per diem for post-termination services
rendered by Executive in compliance herewith, based on Executive's last base
salary and time reasonably expended by him. Executive shall execute all lawful
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documents reasonably necessary to Employer to secure or maintain its
Intellectual Property, Confidential Information, or other business requirements.
6.3. RETURN OF DOCUMENTS AND PROPERTY. Executive shall, upon the
conclusion of the employment relationship for any reason, participate in an exit
interview, and shall deliver promptly to Employer all documents, records, files,
customer or client materials, computer files or discs, and Confidential
Information fixed in any tangible medium of expression, together with all
computers and harddrives, Employee identification cards, Employer credit cards,
keys, and any other physical property of Employer.
7. CONDITIONS PRECEDENT FOR VESTING OF STOCK OPTIONS AND PAYMENT OF
SEVERANCE. Executive's continued compliance with the terms of Sections 5 and 6
of this Amendment and Section 4 of the Employment Agreement shall be a mandatory
condition precedent to the vesting and exercise of Stock Options pursuant to
Section 3.2 hereof and to the payment of the Severance Amount or any portion
thereof as set forth in Section 3.1 hereof.
7.1. OTHER MATTERS. Should Employer learn of or discover, after the
date of this Amendment, the existence of events, conduct, acts or omissions on
the part of Executive, not previously known to Employer, that would have
constituted grounds for termination of the Employment Term for Cause under
Section 3.2.5 of the Employment Agreement had they been discovered during the
Employment Term, Employer shall notify Executive of same and upon the tendering
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of such notification, all unexercised Stock Options granted to Executive,
whether vested or unvested, shall terminate immediately and be of no further
force or effect; and all further obligations of Employer to pay the Severance
Amount shall likewise cease.
7.2. EXECUTIVE'S ACTIONS CAUSING RESTATEMENT OF FINANCIAL STATEMENTS
OR REPORTS. Should any act or omission of Executive, or any person under
Executive's direct supervision, during the Employment Term, materially
contribute to Employer being caused to restate or amend any of its Financial
Statements, reports or disclosures at any time to reflect a material change in
its financial condition (irrespective of whether such act, omission or
supervision by Executive would have constituted Cause for termination under the
Employment Agreement), Employer will so notify Executive, and upon the tendering
of such notice, all unexercised Stock Options granted to Executive, whether
vested or unvested, shall terminate immediately and be of no further force or
effect, and all further obligations of Employer to pay the Severance Amount
shall likewise cease. This provision shall not apply where the acts, omissions,
or supervision of Executive that materially contributed to the restatement or
amendment were disclosed to the Audit Committee of the Board of Directors and
Executive has made reasonable efforts to disclose same to the Certified Public
Accountants then auditing Employer's financial statements, reports and
disclosures, and were explicitly acknowledged and acquiesced in by them.
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7.3. REMEDIES ARE CUMULATIVE. Nothing in this Section 7 shall limit or
restrict Employer from pursuing or obtaining any other remedies which may be
available to it in law, contract or otherwise, in addition to the remedies set
forth herein, in response to any improper conduct of Executive, or conduct in
violation of the parties' agreements.
8. NO ADDITIONAL STOCK OPTIONS GRANTED; NO ASSIGNMENT OF OPTIONS.
Notwithstanding anything in the Employment Agreement or any other agreement to
the contrary, unless the parties otherwise specify in writing hereafter, no
further grant of Stock Options shall be made to Executive after the date hereof.
No Stock Option granted to Executive by Employer at any time may be assigned by
Executive to any other individual or entity.
9. SECTION REFERENCES. References to any Section number herein shall mean
and include all subsections thereof.
10. RELATIONSHIP BETWEEN AMENDMENT AND EMPLOYMENT AGREEMENT. Except as
amended herein, the Employment Agreement shall remain in full force and effect.
In the event of a conflict between the Employment Agreement and this Amendment,
the provisions of this Amendment shall govern.
11. COUNTERPARTS. This Amendment may be signed in counterparts.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
the parties hereto effective as of the date first above written.
PHARMACEUTICAL RESOURCES, INC. SCOTT L. TARRIFF
By: /s/ MARK AUERBACH By: /s/ SCOTT L. TARRIFF
----------------------------- -----------------------------
Name: Mark Auerbach
Title: Director
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SCHEDULE A
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VESTING SCHEDULE FOR OPTIONS FOLLOWING COMMITMENT PERIOD
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1. Those Unvested Options which, pursuant to the previously existing vesting
schedules for such Options, would have vested in the period after the Date
of Termination up to and including the first anniversary of the Date of
Termination, shall instead vest exclusively in the following two equal
installments (with Options having the earliest previous vesting dates
included in the first installment):
(i) one-half (1/2) as of six months after the Date of Termination, or
September 18, 2004, whichever is earlier; and
(ii) one-half (1/2) as of the first anniversary of the Date of Termination.
2. Those Unvested Options which, pursuant to the previously-existing vesting
schedules for such Options, would have vested after the first anniversary
of the Date of Termination up to and including the second anniversary of
the Date of Termination, shall instead vest exclusively in the following
two equal installments (with Options having the earliest previous vesting
dates included in the first installment):
(i) one-half (1/2) as of six (6) months after the first anniversary of the
Date of Termination; and
(ii) one-half (1/2) as of the second anniversary of the Date of
Termination.
3 Those Unvested Options which, pursuant to the previously existing vesting
schedules for such Options, would have vested after the second anniversary
of the Date of Termination, shall instead vest exclusively in the following
two equal installments (with Options having the earliest previous vesting
dates included in the first installment):
(i) one-half (1/2) as of six (6) months after the second anniversary of
the Date of Termination; and
(ii) one-half (1/2) as of the third anniversary of the Date of Termination.
All such vesting and exercise shall be subject to the provisions of this
Amendment.