AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS IS AN AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement"), dated as of March 25, 2000, between West Pharmaceutical
Services, Inc., a Pennsylvania corporation, (formerly named "The West
Company, Incorporated") (the "Company") and Xxxxxxx X. Xxxxxx (the
"Employee").
Background
The Company and Employee are parties to an Employment Agreement, dated
as of May 20, 1991 (the "1992 Employment Agreement") and an amendment to
the 1992 Employment Agreement, dated April 28, 1998 (as so amended, the
"Amended Employment Agreement"). The Company desires to amend and restate
the Amended Employment Agreement to incorporate the previous amendment as
well as to make certain other changes as set forth herein.
Agreement
Intending to be legally bound, the parties agree as follows:
1. Position. The Company engages the Employee as its Chief
Executive Officer. The Employee will perform such services as
may be assigned to him by the Company's Bylaws and Board of
Directors. The Company will also cause the Employee to become
a director of the Company.
2. Exclusive Services. The Employee will diligently devote his
entire time, effort and attention to the affairs of the
Company and to the successful development of its business.
Without the Company's advance written consent, the Employee
will not render business services to others or engage in any
other activity that would materially interfere with the
performance of his duties under this Agreement. Nevertheless,
as long as the following activities do not interfere with the
Employee's obligations to the Company, the Employee may: (a)
serve as a director, officer or trustee of any trade
association or of any civic, educational or charitable
organization; (b) acquire solely as an investment securities
of any entity so long as (i) he remains a passive investor in
that entity and (ii) that entity does not, directly or
indirectly, compete with the Company; and (c) with the prior
consent of the Company's Board of Directors, serve as director
of any corporation which does not, directly or indirectly,
compete with the Company.
3. Term of Employment. Unless sooner terminated as provided in
Sections 6 or 7 of this Agreement, the Employee's employment
term shall begin on the date of the 1992 Employment Agreement
(the "Commencement Date") and shall end on the sooner of the
Employee's normal retirement date or the second anniversary of
the Company's giving notice of termination, which notice may
be given at any time on or after (but not before) May 20,
1992.
4. Compensation and Benefits.
4.1 Compensation.
(a) Base Salary. The Employee's annual base salary
will be determined in accordance with the Company's
regular executive compensation review arrangements.
(b) Bonuses. In addition to his base salary, the
Employee will be entitled to participate in the
executive compensation arrangements described in
Section 5.
4.2 Employee Benefits.
(a) The Employee will be entitled to participate in the
Company's employee benefit plans that are generally
available to the Company's executive management.
These include any group life, hospitalization,
surgical, major medical and accidental death and
dismemberment insurance plans and the Company's
Supplemental Executives' Retirement Plan and the
Company's Salaried Employees' Retirement Plan.
(b) In determining the Employee's benefits under the
Company's Supplemental Executive Retirement Plan
(i) his years of service under that Plan will
include the years of service taken into account in
determining his benefits under qualified pension
plans sponsored by The Xxxxxxx Company and X. X.
Xxxx, Inc. and (ii) on the date of the 1992
Employment Agreement, the Employee will be deemed
to be vested under that Plan by virtue of such
prior service.
(c) In determining the Employee's benefits and vesting
rights under the Company's Salaried Employee's
Retirement Plan, the Employee will be treated as
though he joined the Company on the date of the
1992 Employment Agreement without credit for prior
service with previous employers. However, on
Employee's retirement under that plan, he will be
entitled to receive a supplemental retirement
benefit which, when added to the payments he
receives under all of the Company's pension plans
in which he participates, will equal the amount he
would have received had his service under those
plans included his service taken into account in
determining his benefits under qualified pension
plans sponsored by The Xxxxxxx Company and X. X.
Xxxx, Inc.
(d) However, notwithstanding Sections 4.2 (b) and (c),
amounts paid to the Employee by the Company and by
its pension plans will be reduced by the benefits
the Employee is or would have been entitled to
receive under pension plans sponsored by The
Xxxxxxx Company and X. X. Xxxx, Inc. if he has or
had retained the right to retire under the plans
sponsored by those employers. In computing that
reduced amount, the Company may rely on information
furnished to it by those other employers, and on
appropriate actuarial adjustments (if practical, or
otherwise adjusted as the parties may reasonably
agree) to reflect the value of any benefits that
are or would have been payable under those other
plans in a manner or at a time different from the
manner or time that benefits are payable under the
Company's plans.
(e) For purposes of determining vacation leave under
the Company's vacation policy, the Employee will
receive credit for periods of prior service with
The Xxxxxxx Company and X. X. Xxxx, Inc.
4.3 Reimbursement of Expenses. The Company will reimburse
the Employee in accordance with the Company's expense
reimbursement policy as in effect from time to time,
for expenses reasonably and properly incurred by him in
performing his duties. The Employee shall furnish the
Company with evidence of his disbursements in
sufficient detail to qualify them as deductions under
the Internal Revenue Code of 1986, as amended (the
"Code"). The Company will also reimburse the Employee
for reasonable personal financial and tax planning
expenses incurred in connection with the Employee's
initial employment in an aggregate amount not to exceed
$3,500.
4.4 Relocation. The Company will assist the Employee with
relocation expenses and other activities associated
with Employee's relocation to a new residence in the
area of the Company's executive offices in accordance
with the Company's relocation policy applicable to
salaried employees in the form attached.
4.5 Automobile. The Company will provide the Employee with
the use of an automobile and will pay or reimburse the
Employee for maintenance and operation expenses of that
automobile in accordance with the Company's executive
automobile policy.
5. Establishment of Executive Compensation Arrangements. The
Board of Directors has revised its executive incentive
compensation arrangements under the Shareholder-approved Long
Term Incentive Plan to provide for substantial incentive
compensation opportunities for all of the Company's key
executives. That plan shall be in effect for 1992 and each
subsequent year of the Employee's employment. That plan will
provide for bonuses of up to 100% of annual base salary based
on the participant's rank and the achievement of fundamental
and substantial increases in shareholder value. The latter
will be determined by performance criteria established by the
Compensation Committee in consultation with the Company's
senior executives.
6. Termination.
6.1 Termination for Cause. The Company may terminate the
Employee's employment, and the Company's obligations
under this Agreement, at any time for Cause by giving
notice to the Employee. Such termination will be
effective as of the date of such notice and all rights of
the Employee under this Agreement shall terminate on such
date.
In this Agreement, "Cause" means: (i) the Employee's
conviction of a felony; or (ii) the Employee's bankruptcy
or insolvency; or (iii) the Employee's failure to perform
his duties under this Agreement (other than due to
physical or mental illness) and the failure by the
Employee to correct that failure within 30 days after
written notice from the Company; or (iv) the Employee's
gross negligence or willful misconduct in the performance
of his duties; or (v) Employee's conduct which causes
substantial damage to the Company or any of its
affiliated companies or any of their business
reputations, or which brings them into disrepute; or (vi)
the Employee's breach of his undertakings under Sections
9 ("Confidential Information") or 10 ("Non-Competition").
6.2 Employee's Disability. If, due to the Employee's
Disability, he resigns or is terminated by the Company,
the Employee shall be entitled to receive all base
salary earned and accrued to the date of termination or
resignation, as well as any other benefits payable
under the Company's then current disability policy, but
all other rights of the Employee hereunder shall
terminate as of the date of Employee's termination or
resignation.
In this Agreement, "Disability" means any physical or
mental ailment which prevents the Employee from
performing the duties incident to the Employee's
employment with the Company and which (i) has continued
for a period of 45 consecutive days, or for a period of
90 days whether or not consecutive, during any 360-day
period; or (ii) is determined by a physician as highly
likely to persist for 90 consecutive days or to be of
permanent duration. Any question as to the existence,
extent, duration or potentiality of the Employee's
Disability shall be made by a qualified, independent
physician selected by the Company, whose determination
shall be final and conclusive for all purposes of this
Agreement.
6.3 Termination Other Than For Cause. The Company may
terminate the Employee's employment at any time other
than for Cause, Disability or by giving the two years
notice specified in Section 3, but if it does so, and
the Employee is not then in breach of this Agreement,
the Company shall pay the Employee either: (i) an
amount equal to the Employee's annual base salary then
in effect, plus an amount equal to his annual base
salary that would be in effect for the next following
year if such amount can be determined from this
Agreement or has been set by the Compensation Committee
to the Board of Directors; or (ii) if the subsequent
year's annual base salary has not been so determined or
set, an amount equal to two times the Employee's then
current annual base salary. Such amount will be payable
as a lump sum within 30 days following the date of
termination and the payment will be in full
satisfaction of all claims Employee may have against
the Company. If the circumstances of the termination
are such that the Employee is also entitled to
severance compensation under Section-7 ("Termination
Following a Change in Control"), the Employee will be
entitled to receive the larger of the two amounts under
Sections 6.3 or 7, but not both. The provisions of
Section 8.2 ("Additional Payment") will apply to all
will apply to all payments made under this Section 6.3.
6.4 Death. In the event that the Employee dies while
employed under this Agreement, the Employee's estate
shall be entitled to receive: (i) all base salary
earned and accrued to the date of death; and (ii) any
other benefits payable under any then current life
insurance policy provided to the Employee pursuant to
Section 4.2, hereof, but all other rights of the
Employee hereunder shall terminate.
7. Termination Following a Change in Control.
7.1 Termination Following the Consummation of a Change in
Control. The Employee will be entitled to the severance
compensation specified in Section 8 if, (a) at any time
within two years after a Change in Control has
occurred, the Employee's employment is terminated: (i)
by the Company other than for Cause, death or
Disability or retirement at the Employee's normal
retirement date under the Company's Salaried Employees'
Retirement Plan; or (ii) as a result of Employee's
resignation at any time following his Constructive
Termination or (b) the Employee resigns for any reason
within 30 days following the first anniversary of a
Change in Control. Except as otherwise set forth in
Section 7.2, the Employee will not be entitled to the
benefits specified in Section 8 if his employment
terminates for any other reason or if, at any time
thereafter, the Employee is in breach of his
undertakings under this Agreement.n breach of his
undertakings under this Agreement.
7.2 Termination Following a Contemplated Change in Control.
If the Company executes an agreement, the consummation
of which would result in the occurrence of a Change in
Control, then, with respect to a termination (i) by the
Company other than for Cause, death or Disability or
retirement at the Employee's normal retirement date
under the Company's Salaried Employees' Retirement
Plan; or (ii) as a result of the Employee's resignation
following his Constructive Termination occurring after
the execution of such agreement (and, if such agreement
expires or is terminated prior to consummation, prior
to the expiration or termination of such agreement), a
Change in Control shall be deemed to have occurred as
of the date of the execution of such agreement and the
Employee will be entitled to the severance compensation
specified in Section 8.
As used in this Section 7, the following terms shall have
the meanings described below:
(a) "Change in Control" means a change in control of a
nature that would be required to be reported in
response to Item I of the Current Report on Form
8-K as in effect on April 28, 1998 pursuant to
Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Act"), provided, that,
without limitation, a Change in Control shall be
deemed to have occurred if.
(i) any "Person" (as such term is used in Sections
13(d) and 14(d) of the Act), other than:
A. the Company,
B. any Person who on the date hereof
is an employee or officer of the
Company, or
C. a trustee or fiduciary holding
securities under an employee
benefit plan of the Company,
(ii) is or becomes the "beneficial owner," (as defined in
Rule 13-d3 under the Act), directly or indirectly, of
securities of the Company representing more than 50% of the
combined voting power of the Company's then outstanding
securities; or
(iii) during any period of two consecutive years during the
term of this Agreement, individuals who at the beginning of
such period constitute the board of directors of the Company
cease for any reason to constitute at least a majority
thereof, unless the election of each director who was not a
director at the beginning of such period has been approved
in advance by directors representing at least two-thirds of
the directors then in office who were directors at the
beginning of the period; or
(iv) the shareholders of the Company approve: (A) a plan of
complete liquidation of the Company; or (B) an agreement for
the sale or disposition of all or substantially all of the
Company's assets; or (C) a merger, consolidation, or
reorganization of the Company with or involving any other
corporation, other than a merger, consolidation, or
reorganization (collectively, a "Transaction") that would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity), at least 50% of the
combined voting power of the voting securities of the
Company (or the surviving entity, or an entity which as a
result of the Transaction owns the Company or all or
substantially all of the Company's assets either directly or
through one or more subsidiaries) outstanding immediately
after the Transaction."
(b) "Constructive Termination" means the occurrence of any
of the following events during the Employment Term:
(i) the Company requires the Employee to assume any duties
inconsistent with, or the Company makes a significant
diminution or reduction in the nature or scope of the
Employee's authority or duties from, those assigned to
or held by the Employee on the Commencement Date;
(ii) a material reduction in the Employee's base salary or
incentive compensation opportunities;
(iii)a relocation of the Employee's site of employment to a
location more than 51) miles from the Employee's site
of employment with the Company on the Commencement
Date;
(iv) the Company fails to provide the Employee with a
reasonable number of paid vacation days at least equal
to the number of paid vacation days to which the
Employee was entitled in the immediately preceding full
calendar year;
(v) the Company fails to provide the Employee with
substantially the same fringe benefits that were
provided to the Employee on the Commencement Date or
with a package of fringe benefits that, though one or
more such benefits may vary from those in effect on the
Commencement Date, is substantially at least as
beneficial to the Employee in all material respects as
such prior fringe benefits taken as a whole; or
(vi) a successor of the Company does not assume the
Company's obligations under this Agreement, expressly
or as a matter of law.
Notwithstanding the foregoing, no Constructive
Termination shall be deemed to have occurred if: (x)
the Employee shall have consented in writing or given
a written waiver to the occurrence of any to the events
enumerated in clauses (i) through (vi) above; or (y)
the Employee shall have failed to give the Company
written notice stating his intention to claim
Constructive Termination and the basis for that claim
at least 10 days in advance of the effective date of
the resignation; or (z) the event constituting a
constructive dismissal has been cured or reversed by
the Company prior to the effective date of his
resignation.
8. Severance Compensation Following a Change in Control.
8.1 Determination of Severance Compensation. Upon
termination of employment as set forth in Section 7,
the Employee shall be entitled to:
(a) severance compensation in an amount equal to three
times the sum of: (i) the Employee's highest annual
base salary rate in effect during the year of the
termination of employment, and (ii) an amount equal to
the annual bonus paid or payable for the fiscal year
immediately preceding a Change in Control or the
termination of employment (whichever amount is
greater); provided, however, that if at any time before
the third anniversary of the termination of the
Employee's employment, the Employee either elects
retirement under the Company's Salaried Employees'
Retirement Plan, or could have been compelled to retire
under that Plan if the Employee had remained employed
by the Company, the severance compensation under this
Section shall be reduced by an amount equal to the
pension benefit payable to the Employee under that
Plan, determined after any applicable actuarial
reductions for early commencement. The amount of
pension benefit taken into account for this purpose
shall be limited to those benefits payable before the
third anniversary of the termination of employment. The
severance compensation paid hereunder shall not be
reduced to the extent of any other compensation for the
Employee's services which the Employee receives or is
entitled to receive from any other employment as long
as that employment is consistent with the terms of
this Agreement;
(b) the difference, if any, between (i) the benefit the
Employee would be entitled to receive under the
Company's Salaried Employees' Savings Plan (the
"Savings Plan") if the Company's contributions to the
Savings Plan were fully vested upon the termination of
the Employee's employment and (ii) the benefit the
Employee is entitled to receive under the terms of the
Savings Plan upon termination of employment. Any
benefit payable hereunder shall be payable at such time
and in such manner as benefits are payable under the
Savings Plan; and
(c) a continuation of all hospital, major medical, medical,
dental, life and other insurance benefits not otherwise
addressed in this Agreement in the same manner and
amount to which the Employee was entitled on the date
of a Change in Control or on the date of termination of
employment (whichever benefits are more favorable to
the Employee) until the earlier of: (i) a period of 36
months after termination of employment; (ii) the
Employee's retirement under the Company's Salaried
Employees' Retirement Plan; or (iii) the Employee's
eligibility for similar benefits with a new employer.
Assistance in finding new employment will be made
available by the Company if the Employee so requests.
(d) the immediate vesting, upon the termination of the
Employee's employment, of all stock options, other
equity-based awards and shares of the Company's stock
awarded to the Employee pursuant to this Agreement, the
executive incentive plan referred to in Section 5, or
any other Company compensation or benefit plan or
arrangement generally, which are unvested at that time.
The provisions of this Section 8.1 (d) shall supersede
the terms of any stock-option, equity or other grant or
award made to the Employee under any such other plan or
arrangement to the extent that there is an
inconsistency between the two.
8.2. Additional Payment.
(a) Gross-Up Payment. Notwithstanding anything herein to
the contrary, if it is determined that any Payment
would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together
with any interest or penalties thereon, is herein
referred to as an "Excise Tax"), then the Employee
shall be entitled to an additional payment (a "Gross-Up
Payment") in an amount that will place the Employee in
the same after-tax economic position that the Employee
would have enjoyed if the Excise Tax had not applied to
the Payment.
(b) Determination of Gross-Up Payment. Subject to the
provisions of Section 8.2(c), all determinations
required under this Section 8.2, including whether a
Gross-Up Payment is required, the amount of the
Payments constituting excess parachute payments, and
the amount of the Gross-Up Payment, shall be made by
the accounting firm that was the Company's independent
auditors immediately prior to the Change in Control
(or, in default thereof, an accounting firm mutually
agreed upon by the Company and the Employee) (the
"Accounting Firm"), which shall provide detailed
supporting calculations both to the Employee and the
Company within fifteen days of the Change in Control,
the date of termination of employment or any other date
reasonably requested by the Employee or the Company on
which a determination under this Section 8.2 is
necessary or advisable. The Company shall pay to the
Employee the initial Gross-Up Payment within 5 days of
the receipt by the Employee and the Company of the
Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the
Employee, the Company shall cause the Accounting Firm
to provide the Employee with an opinion that the
Accounting Firm has substantial authority under the
Code and Regulations not to report an Excise Tax on the
Employee's federal income tax return. Any determination
by the Accounting Firm shall be binding upon the
Employee and the Company. If the initial Gross-Up
Payment is insufficient to cover the amount of the
Excise Tax that is ultimately determined to be owing
by the Employee with respect to any Payment
(hereinafter an "Underpayment"), the Company, after
exhausting its remedies under Section 8.2(c) below,
shall promptly pay to the Employee an additional
Gross-Up Payment in respect of the Underpayment.
(c) Procedures. The Employee shall notify the Company in
writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the
Company of a Gross-Up Payment. Such notice shall be
given as soon as practicable after the Employee knows
of such claim and shall apprise the Company of the
nature of the claim and the date on which the claim is
requested to be paid. The Employee agrees not to pay
the claim until the expiration of the thirty-day period
following the date on which the Employee notifies the
Company, or such shorter period ending on the date the
Taxes with respect to such claim are due (the "Notice
Period"). If the Company notifies the Employee in
writing prior to the expiration of the Notice Period
that it desires to contest the claim, the Employee
shall: (i) give the Company any information reasonably
requested by the Company relating to the claim; (ii)
take such action in connection with the claim as the
Company may reasonably request, including, without
limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the
Company and reasonably acceptable to the Employee;
(iii) cooperate with the Company in good faith in
contesting the claim; and (iv) permit the Company to
participate in any proceedings relating to the claim.
The Employee shall permit the Company to control all
proceedings related to the claim and, at its option,
permit the Company to pursue or forgo any and all
administrative appeals, proceedings, hearings, and
conferences with the taxing authority in respect of
such claim. If requested by the Company, the Employee
agrees either to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner
and to prosecute such contest to a determination before
any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts as the
Company shall determine; provided, however, that,if the
Company directs the Employee to pay such claim and
pursue a refund, the Company shall advance the amount
of such payment to the Employee on an after-tax and
interest-free basis (the "Advance"). The Company's
control of the contest related to the claim shall be
limited to the issues related to the Gross-Up Payment
and the Employee shall be entitled to settle or
contest, as the case may be, any other issues raised by
the Internal Revenue Service or other taxing authority.
If the Company does not notify the Employee in writing
prior to the end of the Notice Period of its desire to
contest the claim, the Company shall pay to the
Employee an additional Gross-Up Payment in respect of
the excess parachute payments that are the subject of
the claim, and the Employee agrees to pay the amount of
the Excise Tax that is the subject of the claim to the
applicable taxing authority in accordance with
applicable law.
(d) Repayments. If, after receipt by the Employee of an
Advance, the Employee becomes entitled to a refund with
respect to the claim to which such Advance relates, the
Employee shall pay the Company the amount of the refund
(together with any interest paid or credited thereon
after Taxes applicable thereto). If, after receipt by
the Employee of an Advance, a determination is made
that the Employee shall not be entitled to any refund
with respect to the claim and the Company does not
promptly notify the Employee of its intent to contest
the denial of refund, then the amount of the Advance
shall not be required to be repaid by the Employee and
the amount thereof shall offset the amount of the
additional Gross-Up Payment then owing to the Employee.
(e) Further Assurances. The Company shall indemnify the
Employee and hold the Employee harmless, on an
after-tax basis, from any costs, expenses, penalties,
fines, interest or other liabilities ("Losses")
incurred by the Employee with respect to the exercise
by the Company of any of its rights under this Section
8.2, including, without limitation, any
Losses related to the Company's decision to contest a
claim or any imputed income to the Employee resulting
from any Advance or action taken on the Employee's
behalf by the Company hereunder. The Company shall pay,
or cause the Trust to pay, all legal fees and expenses
incurred under this Section 8.2 and shall promptly
reimburse the Employee, or cause the Trust to reimburse
the Employee, for the reasonable expenses incurred by
the Employee in connection with any actions taken by
the Company or required to be taken by the Employee
hereunder. The Company shall also pay all of the fees
and expenses of the Accounting Firm, including, without
limitation, the fees and expenses related to the
opinion referred to in Section 8.2(b).
As used in this Section 8.2, the following terms shall
have the meanings described below:
"Payment" means (i) any amount due or paid to the Employee
under this Agreement, (ii) any amount that is due or paid
to the Employee under any plan, program or arrangement of
the Company and any of its subsidiaries, and (iii) any
amount or benefit that is due or payable to the Employee
under this Agreement or under any plan, program or
arrangement of the Company and any of its subsidiaries not
otherwise covered under clause (i) or (ii) hereof which
must reasonably be taken into account under Section 280G
of the Code and the Regulations in determining the amount
of the "parachute payments" received by the Employee,
including, without limitation, any amounts which must be
taken into account under the Code and Regulations as a
result of (A) the acceleration of the vesting of any
option, restricted stock or other equity award granted
under any equity plan of the Company or otherwise, (B) the
acceleration of the time at which any payment or benefit
is receivable by the Employee or (C) any contingent
severance or other amounts that are payable to the
Employee.
"Regulations" means the proposed, temporary and final
regulations under Section 280G of Code or any successor
provision thereto.
8.3 Payment of Severance Compensation.
(a) The severance compensation set forth in Sections 8.1(a)
and 8.1(b) will be payable in 36 equal monthly
installments commencing on the first day of the month
following the month in which employment terminates.
However, the Employee may elect in writing, in
accordance with the provisions of this Section, to
receive his severance compensation in a lump sum at a
later time or in installments in amounts and at times
elected by the Employee, but that election will not
entitle the Employee to receive severance compensation
sooner than permitted by the preceding sentence.
(b) The Employee must elect to receive amounts in
installments or to defer payments by filing a written
election with the Company. Such election must specify
the time at which payments are to be made and the
amounts of such payments. The election to receive
installment payments or to defer payments will not be
valid unless it is made prior to the time the Employee
is entitled to receive any payments under this
Agreement. The last such election in effect on the day
before a termination of employment shall be
controlling. No election may be made on or after
termination of employment.
(c) The payment of deferred amounts must commence no
earlier than the first business day of the calendar
year following the termination of employment and no
later than the third calendar year following the
attainment of normal retirement age under the Company's
Salaried Employees' Retirement Plan.
8.4 Termination of Rights to Severance Compensation. The
Employee's rights to severance compensation under Sections 7
and 8 may be terminated only: (a) at any time by the mutual
written consent of the Employee and the Company; and (b) the
Company may also terminate
these rights at the end of each successive two-year
period commencing on the date of this Agreement. The Company
may terminate this Agreement under clause (b) of this
Section 8.4 by giving written notice at least one year in
advance of such termination, except that such termination
and written notice shall not be effective unless the
Employee is employed by the Company on the termination date.
9. Confidential Information.
9.1 Covenant. The Employee acknowledges that his employment by
the Company will, throughout the duration of this Agreement,
bring him into close contact with many confidential affairs
of the Company. These include (but are not limited to)
information about markets, key personnel, client lists and
client information, operational methods, proprietary
intellectual property, plans for future developments
relating thereto, and other information not readily
available to the public. The Employee also further
acknowledges that the services to be performed under this
Agreement are of a special, unique, unusual, extraordinary
and intellectual character. In recognition of these factors,
the Employee covenants and agrees that, both during and
after the term of this Agreement:
(i) he will keep secret all material confidential matters
of the Company known to him which are not otherwise in
the public domain and will not intentionally disclose
them to anyone outside of the Company, wherever
located, except with the Company's prior written
consent; and
(ii) he will deliver promptly to the Company on termination
of his employment by the Company, or at any other time
the Company may so request, all memoranda, notes,
records, reports and other documents (and all copies
thereof) relating to the business
of the Company which he obtained while employed by,
or otherwise serving or acting on behalf of, the
Company and which he may then possess or have under his
control.
9.2 Specific Remedy. If the Employee commits a
material breach of any of the provisions of
Section 9.1, the Company shall have the right
and remedy to have such provisions
specifically enforced by any court having
equity jurisdiction, it being acknowledged and
agreed that any such breach or threatened
breach will cause irreparable injury to the
Company and that money damages will not
provide an adequate remedy to the Company.
10. Non-Competition.
10.1 Covenant. During the term of this Agreement and for a period of
one year after the termination of Employee's employment
hereunder, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, or in
any other capacity whatsoever (other than as the holder of
not more than five percent of the total outstanding stock of
a publicly held company), engage in the business of
developing, producing, marketing or selling products of the
kind or type developed or being developed, produced,
marketed or sold by the Company while the Employee was
employed by the Company within any market or territory in
which the Company is then actively engaged; or
(ii) recruit any employee of the Company or solicit or induce, or
attempt to solicit or induce, any employee of the Company to
terminate his or her employment with, or otherwise cease
his or her relationship with, the Company; or
(iii)solicit, divert or take away, or attempt to divert or to
take away, the business or patronage of any of the clients,
customers or accounts, or prospective clients, customers or
accounts, of the Company which were contacted, solicited or
served by the Employee while employed by the Company.
10.2 Specific Remedy. The restrictions contained in this Section 10 are
necessary for the protection of the business and goodwill of the
Company and are considered by the Employee to be reasonable for that
purpose. The Employee agrees that any breach of this Section 10 will
cause the Company substantial and irrevocable harm for which money
damages will be inadequate and therefore, in the event of any such
breach or threatened breach, in addition to such other remedies as may
be available, the Company shall have the right to seek specific
performance and injunctive relief.
11. Independence, Severability and Non-Exclusivity. All of the
rights and remedies enumerated in Sections 9.2 and 10.2 are
in addition to and not in lieu of any other rights and
remedies available to the Company under law or in equity and
shall survive termination of this Agreement. If any of the
provisions of this Agreement (including Sections 9 and 10)
are determined to be invalid or unenforceable, that will not
affect the remainder of this Agreement which will be given
full effect without regard to the invalid portions. If any
part of Section 10 is held to be unenforceable by a competent
tribunal because of its duration or the area covered thereby,
the parties agree that the court making that determination
will have the power to reduce the duration or area (and those
provisions will be deemed to be amended by the parties) to
the extent necessary to make those provisions enforceable
12. Vesting In the Event of a Change in Control. In the event of
a Change in Control, all stock options, other equity-based
awards and shares of the Company's stock awarded to the
Employee pursuant to this Agreement, the executive incentive
plan referred to in Section 5, or any other Company
compensation or benefit plan or arrangement generally, which
are unvested at that time, will immediately become fully
vested. The provisions of this Section 12 shall supersede
the terms of any equity award made to the Employee under any
such other plan or arrangement to the extent that there is an
inconsistency between them.
13. Assignment of the Employee Benefits. Absent the prior
written consent of the Company, and subject to will and the
laws of descent and distribution, the Employee will have no
right to exchange, convert, encumber or dispose of the rights
of the Employee to receive benefits and payments under this
Agreement, which payments and benefits are non-assignable and
non-transferable.
14. Notices. All notices under this Agreement shall be given in
writing by personal delivery or by registered or certified
mail addressed to the Company at its principal place of
business and to the Employee at his residence address as then
listed in the Company's records.
15. Return of Company Property. On the termination of Employee's
employment hereunder at any time, he will promptly return to
the Company all of its property then in his possession.
16. General.
16.1 Survival. Notwithstanding anything to the contrary in
this Agreement, (i) the rights and obligations of the
parties under Sections 8, 9 and 10 hereof, (ii) the
Company's obligation to make payments under Section 6
hereof, and (iii) any cause of action or claim of
either party, accrued or to accrue, because of any
breach or default by the other party, shall survive any
termination of this Agreement to the degree necessary
to permit their complete fulfillment or discharge.
16.2 Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws
of the Commonwealth of Pennsylvania, without giving
effect to conflicts of laws principles thereof which
might refer such interpretations to the laws of a
different state or jurisdiction.
16.3 Captions. The section headings contained herein are
for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
16.4 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to
the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or
oral, between the parties.
16.5 No Other Representations. No representation, promise
or inducement has been made by any party hereto that is
not embodied in this Agreement, and no party shall be
bound by or liable for any alleged representation,
promise or inducement not so set forth.
16.6 Successors and Assigns. This Agreement shall inure to
the benefit of and shall be binding upon the Company
and the Employee and, subject to the provisions of
Section 11, their respective heirs, executors, personal
representatives, successors and assigns.
16.7 Amendments; Waivers. This Agreement may not be
amended, modified, superseded, canceled, renewed or
extended, and the terms or covenants hereof may be
waived, except by a written instrument executed by the
parties to this Agreement or in the case of a waiver,
by the party waiving compliance. The failure of any
party to require performance of any provision of, or to
exercise any right under, this Agreement shall not
affect the right of that party at a later time to
enforce that provision or exercise that right. No
waiver of any term of this Agreement, whether by
conduct or otherwise, will be deemed to be, or
construed as, a further or continuing waiver of that or
any other breach.
IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Employment Agreement as of the date first set
forth above.
WEST PHARMACEUTICAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Senior Vice President,
Human Resources
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
