Exhibit 10.34
ADDENDUM TO WAIVER, RELEASE AND NON-SOLICITATION,
NONCOMPETE AND NONDISCLOSURE AGREEMENT
In connection with the Waiver, Release and Non-Solicitation, Noncompete
and Nondisclosure Agreement executed on December 14, 2005 by and between Xxxx X.
X. Xxxxxxx ("Xx. Xxxxxxx") and Xxxx Pharmaceuticals, Inc. ("King"), King hereby
agrees as follows:
1. Cooperation: If Xx. Xxxxxxx is asked to cooperate with King pursuant
to Section 22 of the King Pharmaceuticals, Inc. Severance Pay Plan: Tier I
(Effective March 15, 2005) (the "Severance Plan"), King agrees that it will
reimburse Xx. Xxxxxxx for reasonable and necessary expenses incurred by Xx.
Xxxxxxx in fulfilling his obligations thereunder.
2. Severance Pay: Notwithstanding the provisions of Section 5 of the
Severance Plan, King agrees that it will distribute the Severance Pay within ten
(10) business days after the expiration of Xx. Xxxxxxx'x seven (7) day
revocation period set forth in the Severance Plan.
3. Severance Benefits: Notwithstanding the provisions of Section 5 of
the Severance Plan, King agrees to reimburse Xx. Xxxxxxx within thirty (30)
calendar days of his payment for coverage under King's welfare benefit plans.
4. Waiver Of Agreement Not To Compete: King hereby waives its right(s)
to enforce against Xx. Xxxxxxx the terms of sections 8(a)(i) and 8(c) of the
Severance Plan; provided, however, that this waiver shall not apply if, within
one year of the date hereof, Xx. Xxxxxxx accepts any employment, whether as an
owner, partner, director, officer, employee, agent, independent contractor,
consultant, or in any other capacity, with any Person (as such term is defined
in the Severance Plan) which, as of December 14, 2005, manufactures one or more
products that compete directly with Altace or Thrombin, or that compete directly
with products produced by King's Meridian franchise.
5. Letter of Reference: King agrees that it will provide to Xx. Xxxxxxx
a signed letter of reference in a form substantially similar to that attached
hereto as "Exhibit A."
6. Indemnification: (a)(i) King shall indemnify, defend and hold
harmless Xx. Xxxxxxx, who has been a director or officer of King or any of its
Subsidiaries, against all losses, claims, damages, costs and expenses (including
reasonable attorneys' fees), liabilities, judgments and, subject to the proviso
of this sentence, settlement amounts that are paid or incurred in connection
with any claim, action, suit, proceeding or investigation (whether civil,
criminal, administrative or investigative and whether asserted or claimed prior
to, at or after the date of this Agreement) that is (A) based on, or arises out
of, the fact that Xx. Xxxxxxx is or was a director or officer of King or any of
its Subsidiaries, or (B) based on, or arising out of, or pertaining to this
Agreement or the transactions contemplated hereby, in each case to the fullest
extent a corporation is permitted under applicable law to indemnify its own
directors or officers, as the case may be; provided, however, that King shall
not be liable for any settlement of any claim effected without its written
consent (which consent shall not be unreasonably withheld).
Without limiting the foregoing, in the event that any such claim, action, suit,
proceeding or investigation is brought against Xx. Xxxxxxx(whether arising prior
to or after the Date of this Agreement), (w) King following the Date of this
Agreement will pay all expenses of the disposition of any such claim, action,
suit, proceeding or investigation to Xx. Xxxxxxx to the full extent permitted
by applicable law promptly after statements therefor are received and otherwise
advance to Xx. Xxxxxxx upon request reimbursement of documented expenses
reasonably incurred, in either case to the extent not prohibited by the
Tennessee Business Corporation Act (TBCA); provided, however, that the person to
whom expenses are advanced provides any undertaking required by applicable law
to repay such advance if it is ultimately determined that such person is not
entitled to indemnification; (x) Xx. Xxxxxxx shall retain counsel reasonably
satisfactory to King; (y) King following the Date of this Agreement shall pay
all reasonable fees and expenses of such counsel for Xx. Xxxxxxx(subject to the
penultimate sentence of this paragraph) and all costs and expenses of Xx.
Xxxxxxx in connection with seeking and obtaining indemnification from King, in
each case promptly as statements therefor are received; and (z) King following
the date of this Agreement shall use all commercially reasonable efforts to
assist in the defense of any such matter. In the event of any dispute as to
whether Executive's conduct complies with the standards set forth under the
TBCA and King's Charter or King's By-laws, a determination shall be made by
independent counsel mutually acceptable to King and Executive; provided,
however, that King following the date of this Agreement shall not be liable for
any settlement effected without its written consent (which consent shall not be
unreasonably withheld). Without limiting the foregoing, to the extent that Xx.
Xxxxxxx is, by reason of the fact that Xx. Xxxxxxx is or was a director or
officer of King or any of its Subsidiaries, a witness in any claim, action,
suit, proceeding or investigation to which Xx. Xxxxxxx is not a party, Xx.
Xxxxxxx shall be indemnified and held harmless against all costs and expenses
in connection therewith.
(ii) King shall not enter into any settlement of any claim in
which King is jointly liable with Xx. Xxxxxxx(or would be if joined in such
claim) unless such settlement provides for a full and final release of all
claims asserted against Xx. Xxxxxxx.
(b) Except to the extent required by law, King following the date of
this Agreement shall not take any action so as to amend, modify, limit or repeal
the provisions for indemnification of Xx. Xxxxxxx contained in the certificates
or articles of incorporation or by-laws (or other comparable charter documents)
of King and its Subsidiaries following the date of this Agreement in such a
manner as would adversely affect the rights of Xx. Xxxxxxx to be indemnified by
such corporations in respect of his serving in such capacities prior thereto.
King following the date of this Agreement shall honor all of its indemnification
obligations to Xx. Xxxxxxx existing as of said date and shall maintain in effect
adequate directors' and officer's liability insurance with respect to such
indemnification obligations.
(c) The provisions of this Section are intended to be for the benefit
of, and shall be enforceable by, Xx. Xxxxxxx and his heirs and legal
representatives, and shall be in addition to, and shall not impair, any other
rights Xx. Xxxxxxx may have under King's Charter, other organizational documents
of King or any of its Subsidiaries, the TBCA or otherwise.
KING PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
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Name: Name:
Title: Chief Executive Officer Title: Director and Chairman of
the Compensation and Human
Resources Committee of the Board
of Directors
Date: December 20, 2005 Date: December 20, 2005
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