SEVERANCE AGREEMENT
Exhibit 10.9
This Severance Agreement (this “Agreement”) is made as of , by and between WYETH, a Delaware corporation (the “Company”), and [ ] (“Executive”).
WHEREAS the Board of Directors of the Company (the “Board”) has approved a severance agreement to provide Executive with certain benefits upon the termination of his employment; and
WHEREAS the Company and Executive entered into a certain Severance Agreement dated as of the date set forth therein (the “Current Agreement”); and
NOW THEREFORE, the parties hereto agree as follows:
Control. Notwithstanding the foregoing, this Agreement shall terminate if Executive ceases to be an employee of the Company and its subsidiaries for any reason prior to a Change in Control which, for these purposes, shall include cessation of such employment as a result of the sale or other disposition of the division, subsidiary or other business unit by which Executive is employed.
(A) any person or persons acting in concert (excluding Company benefit plans) becomes the beneficial owner of securities of the Company having at least 20% of the voting power of the Company’s then outstanding securities (unless the event causing the 20% threshold to be crossed is an acquisition of voting common securities directly from the Company); or
(B) the consummation of any merger or other business combination of the Company, sale or lease of the Company’s assets or combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which the shareholders of the Company who owned shares immediately prior to the Transaction (including any trustee or fiduciary of any Company employee benefit plan) own, by virtue of their prior ownership of the Company’s shares, at least 65% of the voting power, directly or indirectly, of (a) the surviving corporation in any such merger or other business combination; (b) the purchaser or lessee of the Company’s assets; or (c) both the surviving corporation and the purchaser or lessee in the event of any combination of Transactions; or
(C) within any 24 month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of a successor to the Company. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds (2/3) of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who has expressed an intent to effect a Change in Control or engage in a proxy or other control contest).
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Control) if, after an agreement has been signed which, if consummated, would result in a Change in Control, (x) Executive is terminated without Cause by the Company or any of its subsidiaries prior to the Change in Control, and (y) such termination was at the instigation or request of the party to the agreement seeking to cause the Change in Control or is otherwise in connection with the anticipated Change in Control.
(A) the assignment to Executive of any duties inconsistent with Executive’s status as an executive of the Company or its subsidiaries, Executive’s removal from his or her position (as it existed immediately prior to the Change in Control), or a substantial diminution in the nature or status of Executive’s responsibilities from those in effect
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immediately prior to the Change in Control; provided, however, that solely with respect to the events or circumstances provided in this Section 3(iii)(A), Executive must provide the Notice of Termination not later than 180 days following the date he or she had actual knowledge of the event constituting Good Reason;
(B) a reduction by the Company or any of its subsidiaries in Executive’s annual base salary as in effect on the date hereof or as the same may be increased from time to time;
(C) the relocation of Executive’s place of business to a location that increases Executive’s commute by more than thirty-five (35) miles compared to Executive’s commute as in effect immediately prior to the Change in Control;
(D) the failure by the Company to pay to Executive any portion of any installment of deferred compensation under any deferred compensation program of the Company in which Executive participated within seven (7) days of the date such compensation is due;
(E) the failure by the Company or any of its subsidiaries to continue in effect any incentive compensation plan including without limitation any cash or equity-based compensation plan or program, in which Executive participated prior to the Change in Control, unless an equitable alternative compensation arrangement (embodied in an ongoing substitute or alternative plan) has been provided for Executive, or the failure by the Company or any of its subsidiaries to continue Executive’s participation in any such incentive plan on a basis, both in terms of the amount of benefits provided as a percentage of Executive’s base salary and the level of Executive’s participation relative to other participants (as a comparison of the potential percentage of base salary relative to the percentage of base salary for other executives at the same or similar levels), that is no less than the opportunity to earn a percentage of Executive’s base salary as existed at any time during the three (3) years prior to the Change in Control;
(F) except as required by law, the failure by the Company or any of its subsidiaries to continue to provide Executive with benefits, in the aggregate, at least as favorable (excluding changes to such benefits that occur in the ordinary course are of general application, and that increase co-payments, deductibles or premiums, which must be paid by Executive) as those enjoyed by Executive under the employee benefit and welfare plans of the Company and its subsidiaries, including, without limitation, the pension, life insurance, medical, dental, health and accident, retiree medical, disability, deferred compensation and savings plans, in which Executive was participating at the time of the Change in Control, or the failure by the Company or any of its subsidiaries to provide Executive with the number of paid vacation days to which Executive was entitled at the time of the Change in Control;
(G) the failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform this Agreement, as contemplated in Section 6 hereof; or
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(H) any purported termination of Executive’s employment by the Company or its subsidiaries which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3(iv) below; for purposes of this Agreement, no such purported termination shall be effective.
Subject to Section 3(iii)(A), Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstances constituting Good Reason hereunder. For purposes of valuing the amount of benefits provided under any equity-based compensation plan or program, policy, or arrangement under Section 3(iii)(E) above, the Black-Scholes value on the date of grant of any such equity-based award shall be utilized; provided, however, that the Black-Scholes value of any grant on a per option share basis shall be equal to the per option share value of a grant, if any, made on the same date as such grant and reported in the Company’s proxy statement filed prior to a Change in Control and all determinations of the Black-Scholes value of other grants shall be made by a nationally recognized compensation consulting firm chosen by the Company using the methodology and assumptions consistent with those used for purposes of the Company’s latest proxy statement filed prior to the Change in Control (or to the extent applicable, as reported in the proxy statement, if any, of the company that effected the Change in Control).
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reasonable diligence. Notwithstanding the pendency of any such dispute, the Company and its subsidiaries will continue to pay Executive’s full compensation in effect when the notice giving rise to the dispute was given (including, but not limited to, base salary and bonus) and continue Executive as a participant in all incentive compensation, benefit and insurance plans in which Executive was participating when the notice giving rise to the dispute was given, until the dispute is finally resolved in accordance with this Section 3(v). Amounts paid under this Section 3(v) are in addition to all other amounts due under this Agreement and shall not be offset against or reduce any other amounts due under this Agreement. In the event that the Company is terminating Executive the Company may, if it so chooses, pay Executive the base salary which he would have received in lieu of waiting for the expiration of any notice period otherwise required hereby and bar Executive from any of the Company’s premises, offices or properties, subject to any rights set forth herein for Executive to contest such termination.
(i) During any period that Executive fails to perform Executive’s full-time duties with the Company and its subsidiaries as a result of the Disability, Executive shall continue to receive an amount equal to Executive’s base salary at the rate in effect at the commencement of any such period, and Bonus, through the Date of Termination for Disability. Thereafter, Executive’s benefits shall be determined in accordance with the employee benefit programs of the Company and its subsidiaries then in effect.
(ii) If Executive’s employment shall be terminated by the Company or any of its subsidiaries for Cause or by Executive without Good Reason (excluding death, Disability or Retirement) the Company (or one of its subsidiaries, if applicable) shall pay through the Date of Termination Executive’s full base salary at the rate in effect at the time Notice of Termination is given and shall pay any amounts otherwise payable to Executive on or immediately prior to the Date of Termination pursuant to any other compensation plans, programs or employment agreements then in effect, and the Company shall have no further obligations to Executive under this Agreement.
(iii) If Executive’s employment shall be terminated by reason of Executive’s death or Retirement, Executive’s benefits shall be determined in accordance with the retirement and other benefit programs of the Company and its subsidiaries then in effect, except as otherwise provided in Section 3(i).
(iv) If Executive’s employment by the Company and its subsidiaries shall be terminated (other than for death or Disability) by (a) the Company and its subsidiaries other than for Cause or (b) Executive with Good Reason, then Executive shall be entitled to the benefits provided below:
(A) The Company (or one of its subsidiaries, if applicable) shall pay Executive’s full base salary, at the rate in effect at the time of the Change in Control and
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increased to reflect any subsequent increases in such base salary (the “Base Salary”), and a pro-rated Bonus calculated through the Date of Termination, no later than the thirtieth day following the Date of Termination, plus all other amounts to which Executive is entitled under any compensation plan of the Company applicable to Executive, at the time such payments are due. For purposes of this Agreement, the “Bonus” shall mean the highest three (3) years average annual cash bonus paid (or awarded, if different) in respect of each of the five (5) prior bonus years (exclusive of any special or prorated bonuses). If Executive has less than three (3) years of bonus history, Bonus shall mean the average annual bonus of the actual years; provided, however, that if Executive has not had an opportunity to earn or be awarded one (1) full year’s bonus as of his Date of Termination, “Bonus” shall mean, with respect to the year of his Date of Termination: (x) if Executive’s Bonus was to be computed on a discretionary basis, 80% of Base Salary; or (y) if Executive’s Bonus was to be computed pursuant to the payment grid under the Performance Incentive Award Program (or any successor thereto), the amount Executive would have been paid under such program, assuming Executive had attained the highest performance ranking thereunder.
(C) The Company shall also pay to Executive, no less frequently than monthly, all legal fees and expenses reasonably incurred by Executive in connection with this Agreement (including all such fees and expenses, if any, incurred in contesting or disputing the nature of any such termination for purposes of this Agreement or in seeking to obtain or enforce any right or benefit provided by this Agreement); provided, however, that if a determination is made by the arbitrator selected under Section 11 hereof that Executive acted in a frivolous manner in contesting or disputing such termination or seeking to obtain or enforce such right or benefit, the Company shall not be liable to pay such legal fees or expenses otherwise provided for thereunder and the Company shall be entitled to recover from Executive any such amounts so paid (either directly or by setoff against any amounts then owed Executive by the Company).
(D)(i) Upon the date of Termination, Executive (or Executive’s spouse or applicable beneficiary in the event of Executive’s death) will be eligible to receive a benefit, when such benefits otherwise become payable, from the Company’s general funds to be calculated using the benefit calculation provisions of the WYETH Retirement Plan—U.S. (the “DB Plan”) and, to the extent Executive participates therein, the WYETH Supplemental Executive Retirement Plan (the “SERP”) and the WYETH Executive Retirement Plan (the “ERP”) as if the provisions thereunder contained the assumptions set forth herein, and offset by any benefits actually payable under the DB Plan, the SERP, and the ERP not taking into account the assumptions set forth herein. Any elections made under the DB Plan, the SERP and the ERP for purposes of determining the form of payment will also apply for purposes of this benefit. The assumptions to be used in calculating Executive’s benefit are: (x) Executive has continued in the employ of the Company for an additional two (2) years (the “Severance Period”) after the Date of
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Termination, and (y) Executive has earned annually from the Date of Termination to the date of Executive’s assumed continued employment pursuant to clause (x) above the same compensation Executive earned in the twelve (12) months preceding the Date of Termination or in the twelve (12) months preceding the Change in Control, if greater. In addition, if as of the Date of Termination the combination of Executive’s age and years of service equals or exceeds sixty (60) years (determined after giving effect to the provisions in Section 4(iv)(D)(ii) below) any pension payable to Executive at age fifty-five (55) shall not be reduced because it is payable prior to age sixty-five (65) or sixty (60), as the case may be.
(ii) The length of the Severance Period will be added to Executive’s actual age for determining whether or when Executive has attained or will attain the required combination of sixty (60) years of age and years of service for the purposes of Executive’s eligibility to commence receiving payments of benefits pursuant to Section 4(iv)(D)(i) above and Section 4(iv)(E) below.
(E) Executive shall become eligible for all benefits, in addition to those described in Section 4(iv)(D) above, made available immediately prior to the Date of Termination (or, if greater, immediately prior to the date of the Change in Control) to retirees of the Corporation, including, without limitation, retiree medical coverage and life insurance benefits, if at the time of termination Executive is (x) age fifty (50) or older (without regard to Section 4(iv)(D)(ii) above) or (y) has a combination of age and years of service that equal or exceed sixty (60) years (determined after giving effect to the provisions of Section 4(iv)(D)(ii) above), as if Executive had at the Date of Termination satisfied the service and age conditions for coverage under the applicable provisions of the Company’s employee benefit plans. If the Company is unable to provide Executive coverage under such plans, it shall provide Executive with separate comparable coverage, but in no event less than the retiree coverage in place immediately prior to the Change in Control; provided, however, that the retiree medical coverage provided by the Company shall be secondary to any other medical coverage Executive may then have.
(F) From the Date of Termination, until the earlier of (i) the last day of the Severance Period or (ii) the date upon which Executive becomes eligible to participate in plans of another employer (such period, the “Benefit Continuation Period”), the Company will continue Executive’s participation and coverage in all the Company’s life, medical, dental plans and other welfare benefit plans (but excluding the Company’s disability plans) (“Insurance Benefits”), and, in lieu of providing any continuing perquisites or fringe benefits, the Company shall on the thirtieth day following the Date of Termination make a one-time lump sum cash payment for transition benefits of $20,000 for each year of the Severance Period; provided, however, that if his continued participation is not possible under the general terms and provisions of the Company plans or programs providing the Insurance Benefits, the Company shall arrange to provide him with substantially similar benefits; provided, further, that if any other Company plan, arrangement or agreement provides for continuation of Insurance Benefits then Executive shall receive such coverage under such other plan, arrangement or agreement, and if the period of such coverage is shorter than the Benefit Continuation Period, then Executive shall receive pursuant to this Section, such coverage for the remainder of the Benefit Continuation Period.
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(G) Upon the Date of Termination, to the extent that, under the terms of any plan, any Company “restricted” stock awards or options shall terminate or be forfeited upon or following Executive’s termination of employment without, in the case of options, the opportunity to exercise after Notice of Termination and to sell the underlying shares immediately after exercise without legal impediment, then Executive (or any permitted transferee) shall receive, within ten (10) days after the forfeiture or termination of such award or option, an amount in respect of such terminated or forfeited stock awards or options, equal to the sum of (i) the Cashout Value (as defined below) of all the shares covered by the restricted stock awards so forfeited (with units converted to shares based on the target awards), and (ii) the excess of (a) the Cashout Value of all the shares subject to options which were so forfeited over (b) the aggregate exercise price of the shares subject to such forfeited options. For purposes of this Section 4(iv)(G), the “Cashout Value” of a share shall mean the average of the closing prices paid for the Company’s common stock (or any other securities to which the restricted shares or options relate) on any national exchange on which such shares are traded on the trading day on Executive’s Date of Termination (or, if no such shares are traded such day, the most recent date preceding Executive’s termination of employment on which such shares were traded).
(H) The Company shall also provide to Executive outplacement services or executive recruiting services provided by a professional outplacement provider or executive recruiter at a cost to the Company of not more than 10% of Executive’s base salary (not to exceed $25,000).
(i)(A) In the event that any payment or benefit received or to be received by Executive pursuant to the terms of this Agreement (the “Contract Payments”) or in connection with Executive’s termination of employment or contingent upon a Change in Control of the Company pursuant to any plan or arrangement or other agreement with the Company (or any affiliate) (“Other Payments” and, together with the Contract Payments, the “Payments”) would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, as determined as provided below, the Company shall pay to Executive, at the time specified in Section 5(ii) below, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of all amounts required to be paid upon the payment provided for by this Section 5(i), and any interest, penalties or additions to tax payable by Executive with respect thereto, shall be equal to the total present value of the Excise Taxes imposed upon the Payments; provided, however, that if Executive’s Payment is, when calculated on a net-after-tax basis, less than 110% of the amount of the Payment which could be paid to Executive under Section 280G of the Code without causing the imposition of the Excise Tax, then the Payment shall be limited to the largest amount payable (as described above) without resulting in the imposition of any Excise Tax (such amount, the “Capped Amount”).
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(B) For purposes of determining the Capped Amount, whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company’s independent auditors and reasonably acceptable to Executive (“Tax Counsel”), a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest effective rates of taxation applicable to individuals as are in effect in the state and locality of Executive’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.
(C) If the Tax Counsel determines that any Excise Tax is payable by Executive and that the criteria for reducing the Payment to the Capped Amount (as described in Section 5(i)(A) above) is met, then the Company shall reduce the Payment by the amount which, based on the Tax Counsel’s determination and calculations, would provide Executive with the Capped Amount, and pay to Executive such reduced Payment. If the Tax Counsel determines that an Excise Tax is payable, without reduction pursuant to Section 5(i)(A), above, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. If the Tax Counsel determines that no Excise Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his/her federal, state, local income or other tax return. Any determination by the Tax Counsel as to the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Services or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination.
(ii) The Gross-Up Payments provided for in Section 5(i) hereof shall be made upon the earlier of (i) the payment to Executive of any Contract Payment or Other Payment or (ii) the imposition upon Executive or payment by Executive of any Excise Tax.
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(iii) Executive 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 notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall:
1) give the Company any information reasonably requested by the Company relating to such claim;
2) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to Executive;
3) cooperate with the Company in good faith in order to effectively contest such claim; and
4) permit the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses.
(iv) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees 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 Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax
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basis, from any Excise Tax or other tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that if Executive is required to extend the statute of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without Executive’s consent if such position or resolution could reasonably be expected to adversely affect Executive (including any other tax position of Executive unrelated to the matters covered hereby).
(v) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Company or the Tax Counsel hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and Executive thereafter is required to pay to the Internal Revenue Service an additional amount in respect of any Excise Tax, the Company or the Tax Counsel shall determine the amount of the Underpayment that has occurred and any such Underpayment shall promptly be paid by the Company to or for the benefit of Executive.
(vi) If, after the receipt by Executive of the Gross-Up Payment or an amount advanced by the Company in connection with the contest of an Excise Tax claim, Executive becomes entitled to receive any refund with respect to such claim, Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company in connection with an Excise Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest the denial of such refund prior to the expiration of thirty (30) days after such determination, such advance shall be forgiven and shall not be required to be repaid.
6. SUCCESSORS; BINDING AGREEMENT.
(i) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company is required to perform it. Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle Executive to compensation from the Company in the same amount and on the same terms as Executive would be entitled hereunder if Executive had terminated Executive’s employment with Good Reason following a Change in Control, except that for purposes of implementing the foregoing, the date on which any such succession becomes
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effective shall be deemed the Date of Termination. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.
(ii) This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If Executive should die while any amount would still be payable to Executive hereunder if Executive had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to Executive’s devisee, legatee or other designee or, if there is no such designee, to Executive’s estate.
8. MISCELLANEOUS. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by Executive and such officer as may be specifically designated by the Board. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any conditions or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity, interpretation, construction and performance of this Agreement shall be governed by the internal laws of the State of New York, without regard to its conflict of law provisions. All references to sections of the Code shall be deemed also to refer to any successor provisions to such sections. Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state, local or other applicable law. The obligations of the Company under Sections 4 and 5 shall survive the expiration of the term of this Agreement.
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11. ARBITRATION; INDEMNIFICATION.
(i) Other than as provided under Section 13(ii) below, any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in accordance with the rules of the American Arbitration Association then in effect applicable to disputes involving an employee and employer. Judgment may be entered on the arbitrator’s award in any court having jurisdiction; provided, however, that Executive shall be entitled to seek specific performance of Executive’s right to be paid until the Date of Termination during the pendency of any dispute or controversy arising under or in connection with this Agreement. In the determination of the arbitrator’s award, the process shall follow the rules for “baseball arbitration”, as follows: each party to the dispute or controversy shall submit to the arbitrator and exchange with each other, within the time agreed by the parties or prescribed by the arbitrator, written proposals, with each such party’s last, best offer for the amount of money damages they would offer or demand, respectively, in settlement of all issues subject to the dispute or controversy. In rendering the award, the arbitrator shall be limited to selecting only one of the two proposals submitted by the parties, and the parties to such dispute or controversy shall be required to accept the determination of the arbitrator, without rights to appeal such determination. In selecting the arbitrator, each of the Company and Executive would select one person to serve as an arbitrator, who would have to be accepted by the other party (such acceptance not to be unreasonably withheld). Once the two arbitrators had been selected, they would select a third arbitrator, who would have no affiliation to either of them or either party. And such third arbitrator shall be the arbitrator who determines the claim presented for arbitration.
(ii) Following any termination of employment of Executive (other than a termination by the Company for Cause), the Company shall indemnify and hold harmless Executive to the fullest extent permitted under the Company’s by-laws (as in effect prior to the Change in Control) and applicable law for any claims, costs and expenses arising out of or in connection with Executive’s employment with the Company (without regard to when such claim is asserted or issue is raised, so long as it relates to conduct or events that occurred while Executive was employed with the Company) and shall maintain directors’ and officers’ liability insurance coverage for the benefit of Executive which provides him with coverage, if any, no less favorable than that in effect prior to the Change in Control.
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(A) solicit or encourage any employee of the Company to leave the employment of the Company; or
(B) solicit or encourage to cease to work with the Company any long-term contractor that Executive knows, or reasonably should have known, is then under exclusive contract with the Company.
(ii) Notwithstanding clause (i) above, if at any time a court holds that the restrictions stated in such clause (i) are unreasonable or otherwise unenforceable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographic area determined to be reasonable under such circumstances by such court will be substituted for the stated period, scope or area. Because Executive’s services are unique and because Executive has had access to Confidential Information, the parties hereto agree that money damages will be an inadequate remedy for any breach of this Agreement. In the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, stop making any additional payments hereunder to Executive and apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce, or prevent any violations of, the provisions hereof (without the posting of a bond or other security).
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4(iv) (E) and (F) above) shall the amount of any payment or benefit provided by this Agreement be reduced by any compensation earned by Executive as the result of employment by another employer or by retirement benefits received after the Date of Termination or otherwise, and (ii) except as otherwise provided in this Agreement, the obligations of the Company to make payments to Executive and to make the arrangements, provided for herein are absolute and unconditional and may not be reduced by any circumstances, including without limitation any set-off, counterclaim, recoupment, defense or other right which the Company may have against Executive or any third party at any time.
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WYETH | ||
By: |
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Name: | Xxxx X. Xxxxx | |
Title: | Senior Vice President, Human Resources | |
By: |
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Executive | ||
Date: |
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Home Address: | ||
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