SYNEOS HEALTH, INC. 2018 Equity Incentive Plan Global Performance Restricted Stock Unit Award Agreement
Exhibit 10.11.17
SYNEOS HEALTH, INC.
2018 Equity Incentive Plan
Global Performance Restricted Stock Unit Award Agreement
This Global Performance Restricted Stock Unit Award Agreement including any special terms and conditions for the Participant’s country set forth in Appendix B, attached hereto (the Global Performance Restricted Stock Unit Agreement, the Appendix B and all other appendices attached hereto, collectively, the “Agreement”), is made by and between Syneos Health, Inc., a Delaware corporation (the “Company”), and [Participant Name] (the “Participant”), effective as of [Grant Date] (the “Date of Grant”).
Attention: Attached to this Agreement as Appendix D is a Restrictive Covenants Agreement, which imposes certain restrictions upon you both during and after your employment with the Company. Attached to this Agreement as Appendix E is a Mutual Arbitration Agreement, which requires you and the Company to arbitrate on an individual basis most disputes arising from or relating to your employment with the Company, as set forth in more detail in the Mutual Arbitration Agreement. Your acceptance of the Restricted Stock Unit Award requires that you agree to the terms and conditions of this Agreement, the Restrictive Covenants Agreement, and the Mutual Arbitration Agreement. It is important that you review the terms of each of these Agreements
RECITALS
WHEREAS, the Company has adopted the Syneos Health, Inc. 2018 Equity Incentive Plan (as the same may be amended and/or amended and restated from time to time, the “Plan”), which Plan is incorporated herein by reference and made a part of this Agreement, and capitalized terms not otherwise defined in this Agreement will have the meanings ascribed to those terms in the Plan; and
WHEREAS, the Committee has authorized and approved the grant of an Award to the Participant of Performance Restricted Stock Units payable in shares of Common Stock (the “Shares”), subject to the terms and conditions set forth in the Plan and this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants set forth in this Agreement, the parties agree as follows:
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Notwithstanding the foregoing, if the Company receives a legal opinion that there has been a legal judgment and/or legal development in the Participant’s jurisdiction that likely would result in the favorable treatment that applies to the PRSUs if the Participant attains the conditions set forth in this Section 2(c) being deemed unlawful and/or discriminatory, the provisions above regarding the treatment of the PRSUs shall not be applicable to the Participant.
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As used in this Agreement, “Qualifying Event” shall mean a Change in Control or a Significant Transaction.
As used in this Agreement, a “Significant Transaction” shall mean any transaction, including without limitation a reorganization, merger or consolidation, to which the Company is a party that does not constitute a Change in Control but with respect to which any Persons become the Beneficial Owners, directly or indirectly, of more than forty percent (40%) of the combined voting power of the outstanding voting securities entitled to vote generally in the election of directors (or election of members of a comparable governing body) of the Successor Entity.
As used in this Agreement, “Good Reason” shall mean the occurrence, without the Participant’s express written consent, of any of the following events: (i) a material reduction in the Participant’s annual base salary; (ii) a material adverse change to the Participant’s title compared to the Participant’s title immediately prior to the Change in Control; (iii) a requirement that the Participant relocate to a principal place of employment more than fifty (50) miles from the Participant’s assigned principle office location as of immediately prior to the occurrence of the Change in Control; or (iv) if the Participant has an effective employment agreement, service agreement, or other similar agreement with the Company or any Subsidiary, a material breach of such agreement, provided, that, any event described in clauses (i), (ii), (iii) and (iv) above shall constitute Good Reason only if the Participant provides the Company with written notice of the basis for the Participant’s Good Reason within forty-five (45) days of the initial actions or inactions of the Company or any Subsidiary giving rise to such Good Reason and the Company or applicable Subsidiary has not cured the identified actions or inactions within sixty (60) days of such notice, and provided further that the Participant terminates his or her Service within thirty (30) days following the Company’s or applicable Subsidiary’s failure to cure within the 60-day cure period.
Any vesting acceleration contemplated under this Section 2(e) shall be subject to the limitations provided in Section 5.5 of the Plan.
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The Company may withhold or account for Tax-Related Items by considering statutory withholding amounts or other applicable withholding rates, including the maximum applicable rates in the Participant’s jurisdiction(s). In the event of over-withholding, the Participant may receive a refund of any over-withheld amount in cash (with no entitlement to the equivalent amount in Common Stock) from the Company or the Employer. In the event of under-withholding, the Participant may be required to pay any additional Tax-Related Items directly to the applicable tax authority or to the Company and/or the Employer. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Participant is deemed to have been issued the full number of Shares subject to the vested PRSUs, notwithstanding that a number of the Shares is held back solely for the purpose of paying the Tax-Related Items.
Finally, the Participant agrees to pay to the Company or the Employer, including through withholding from the Participant’s wages or other cash compensation payable to the Participant by the Company and/or the Employer, any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of the Participant’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if the Participant fails to comply with the Participant’s obligations in connection with the Tax-Related Items.
In addition, to the extent that any U.S. Federal Insurance Contributions Act tax withholding obligations arise in connection with the PRSUs prior to the applicable
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vesting or settlement date, the Committee shall accelerate the payment of a portion of the award of PRSUs sufficient to satisfy (but not in excess of) such tax withholding obligations and any tax withholding obligations associated with any such accelerated payment, and the Committee shall withhold such amounts in satisfaction of such withholding obligations pursuant to the tax withholding method noted in alternative (4) above.
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The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participant’s personal data as described in this Agreement and any other PRSU grant materials by and among, as applicable, the Employer, the Company and its Subsidiaries for the purpose of implementing, administering and managing the Participant’s participation in the Plan.
The Participant understands that the Company and the Employer may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address, email address and telephone number, date of birth, passport, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all RSUs, Performance RSUs or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.
The Participant understands that Data will be transferred to Fidelity Stock Plan Services, LLC or any other broker selected by the Company, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting the Syneos Health, Inc. Human Resources Department (XXXxxxxxxXxxxxxxxXxxxxxx@XxxxxxXxxxxx.xxx). The Participant authorizes the Company, Fidelity Stock Plan Services, LLC or any other
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broker selected by the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purpose of implementing, administering and managing the Participant’s participation in the Plan. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that the Participant may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Syneos Health, Inc. Human Resources Department (XXXxxxxxxXxxxxxxxXxxxxxx@XxxxxxXxxxxx.xxx). Further, the Participant understands that the Participant is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if the Participant later seeks to revoke the Participant’s consent, the Participant’s Service with the Employer will not be affected; the only consequence of refusing or withdrawing the Participant’s consent is that the Company would not be able to grant PRSUs or other equity awards to the Participant or administer or maintain such awards. Therefore, the Participant understands that refusing or withdrawing the Participant’s consent may affect the Participant’s ability to participate in the Plan. For more information on the consequences of the Participant’s refusal to consent or withdrawal of consent, the Participant understands that the Participant may contact the Syneos Health, Inc. Privacy Office (xxxx.xxxxxxx@xxxxxxxxxxxx.xxx).
Finally, upon request by the Company or the Employer, the Participant agrees to provide an executed data privacy consent form (or any other agreements or consents) that the Company and/or the Employer may deem necessary to obtain from the Participant for the purpose of administering the Participant’s participation in the Plan in compliance with the data privacy laws in the Participant’s country, either now or in the future. The Participant understands and agrees that the Participant will not be able to participate in the Plan if the Participant fails to provide any such consent or agreement requested by the Company and/or the Employer.
The Company and the Employer hereby notify the Participant of the following in relation to the Participant’s Data (as defined below) and the collection, processing and transfer in electronic or other form of such Data in relation to the grant of PRSUs and the Participant’s participation in the Plan. The collection, processing and transfer of the Participant’s Data is necessary for the legitimate purpose of the Company’s administration of the Plan and the Participant’s participation in the Plan, and the Participant’s denial and/or objection to the collection, processing and transfer of Data may affect the Participant’s participation in the Plan. As such, by participating in the Plan, the Participant acknowledges the collection, use, processing and transfer of Data and with respect to the limited transfer to the third party administrator Fidelity Stock Plan Services, LLC, consents to the transfer of Data as described herein.
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The Participant understands that the Company and the Employer will hold certain personal information about the Participant to administer the Plan. This personal information may include, the Participant’s name, home address, email address and telephone number, date of birth, passport, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all RSUs, Performance RSUs or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.
The Company and the Employer will transfer Data amongst themselves as necessary for the purpose of implementation, administration and management of the Plan, and the Company and the Employer may each further transfer Data to third parties assisting the Company or the Employer in the implementation, administration and management of the Plan. The Participant understands that Data will be transferred to Fidelity Stock Plan Services, LLC or any other broker selected by the Company, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting the Syneos Health, Inc. Human Resources Department (XXXxxxxxxXxxxxxxxXxxxxxx@XxxxxxXxxxxx.xxx). For any intragroup transfers of Data outside the EEA or the UK, the transfer will be under the European Commission’s model contracts for the transfer of personal data to third countries (i.e., the standard contractual clauses) (the “Model Clauses”), or any equivalent contracts issued by the relevant competent authority of the UK (as applicable), unless the data transfer is to a country that has been determined by the European Commission or the relevant UK authorities (as applicable) to provide an adequate level of protection for individuals’ rights and freedoms for their personal data. Please contact the Syneos Health Privacy Office (xxxx.xxxxxxx@xxxxxxxxxxxx.xxx) should you wish to receive a copy of the relevant Model Clauses.
Where provided by applicable law, the Participant may have the right to exercise certain rights with respect to their Data, which may be subject to certain limitations and exclusions. For example, these rights may include the right to know what Data is processed, access to Data, rectification of Data, erasure of Data, restriction of processing of Data (including, where applicable, the restriction on the sale of Data), and portability of Data. The Participant may also have the right to object to the processing of Data, as well as to opt-out of the Plan, in any case without cost, by contacting in writing the Syneos Health, Inc. Human Resources Department. The Participant understands, however, that the Participant's participation in the Plan may be limited and the Company and the Employer may not be able to grant the Participant PRSUs or other equity awards or administer or maintain such awards if the Participant refuses to provide Data. The
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Participant agrees to provide full cooperation in executing data privacy consent forms, agreements or any related documentation that the Company and/or the Employer deem necessary for the purpose of administering the Plan in compliance with the data privacy laws in the Participant’s country, either now or in the future.
When the Company and the Employer no longer need to use Data for the purposes above or do not need to retain it for compliance with any legal or regulatory purpose, each will take reasonable steps to remove Data from their systems and/or records containing the Data and/or take steps to properly anonymize it so that the Participant can no longer be identified from it. Further information concerning the Company’s data retention practices can be found in the Company’s Records Management Policy.
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Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company xxxxxxx xxxxxxx policy. The Participant is responsible for complying with any applicable restrictions and should speak with a personal legal advisor on this matter.
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Anything in this Agreement to the contrary notwithstanding, PRSUs that are non-qualified deferred compensation subject to Section 409A of the Code and that vest as a result of the Participant’s termination of employment under Section 2(b), 2(c) or 2(e) hereof shall be settled within sixty (60) days following the Participant experiences a “separation from service,” within the meaning of Section 409A of the Code (“Separation from Service”). With respect to PRSUs that are settled as a result of the Participant’s termination of employment under Appendix C, any such PRSUs that are non-qualified deferred compensation subject to Section 409A, shall be settled within 60 days following the Separation from Service or Change in Control, provided that if the Change in Control is not a “change in control event” (within the meaning of the Treasury Regulations promulgated under Section 409A of the Code), the PRSUs shall be settled as described in Section 3(a)(i). If the Participant is a “specified employee” within the meaning of Section 409A of the Code as of the date of the Separation from Service (as determined in accordance with the methodology established by the Company as in effect on the Date of Termination), any PRSUs that are non-qualified deferred compensation that are payable upon a Separation from Service shall instead be settled on the first business day that is after the earlier of (i) the date that is six months following the date of the Participant’s Separation from Service or (ii) the date of the Participant’s death, to the extent such delayed payment is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code, or any successor provision thereto.
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[Signature page follows]
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IN WITNESS WHEREOF, the Company and the Participant have executed this Global Performance Restricted Stock Unit Award Agreement and any appendices thereto as of the date first written above.
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SYNEOS HEALTH, XXX. Xx: /s/ Xxxxxxxx Xxxxx
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PARTICIPANT [Electronic Signature] ________________________________ |
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Signature Page to Performance Restricted Stock Unit Award Agreement
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The vesting eligibility of the PRSUs granted pursuant to the attached Global Performance Restricted Stock Unit Award Agreement will be determined by the Committee in accordance with the Plan and this Appendix A. The ROIC Performance Goal and each Adjusted EPS Performance Goal shall be referred to, collectively, as the “Performance Goals”.
ROIC Performance Goal
[ ]% of the Target Award amount granted in Section 1 above (the “ROIC Target Award Tranche”) shall be eligible to vest based on the attainment of ROIC measured against the performance goals stated in the table below for the performance period beginning on (and including) January 1, 2023 and ending on (and including) [ ] (the “ROIC Performance Period”):
ROIC [ ] |
Percentage of ROIC Target Award Tranche Eligible for Vesting |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
Adjusted EPS Performance Goals
[ ]% of the Target Award amount granted in Section 1 above shall be eligible to vest based on the attainment of Adjusted EPS performance goals (the “Adjusted EPS PRSUs”), as set forth below.
The number of Adjusted EPS PRSUs that will be eligible for vesting in accordance with Section 2(a) of the Agreement shall be equal to the sum of A + B + C, where:
A = number of Adjusted EPS PRSUs subject to an Adjusted EPS Target Award Tranche (as defined below) x the [ ] EPS Performance Attainment Factor (set forth below)
B = number of Adjusted EPS PRSUs subject to an Adjusted EPS Target Award Tranche x the [ ] EPS Performance Attainment Factor (set forth below)
C = number of Adjusted EPS PRSUs subject to an Adjusted EPS Target Award Tranche x the [ ] EPS Performance Attainment Factor (set forth below)
Appendix A – Performance Restricted Stock Unit Award Agreement
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Performance Periods: With respect to the Adjusted EPS PRSUs, there will be three performance periods (each a “Adjusted EPS Performance Period”), as described in the below table, in which one-sixth (1/6) of the Target Award amount granted in Section 1 above (a “Adjusted EPS Target Award Tranche”) will be measured against the Performance Goals stated in the table below for such Adjusted EPS Performance Period.
Adjusted EPS Performance Period |
Dates |
Performance Goals |
Units Subject to the Performance Goal |
[ ] Performance Period |
[ ] |
[ ] Adjusted EPS |
One Adjusted EPS Target Award Tranche |
[ ] Performance Period |
[ ] |
[ ] Adjusted EPS |
One Adjusted EPS Target Award Tranche |
[ ] Performance Period |
[ ] |
[ ] Adjusted EPS |
One Adjusted EPS Target Award Tranche |
Company Adjusted EPS: One Adjusted EPS Target Award Tranche will be eligible for vesting based upon the Company’s Adjusted EPS for each Adjusted EPS Performance Period based on the following schedules:
[ ] Adjusted EPS |
% of Adjusted EPS Target |
[ ] EPS Performance Attainment Factor |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] Adjusted EPS |
% of Adjusted EPS Target |
[ ] EPS Performance Attainment Factor |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
Appendix A – Performance Restricted Stock Unit Award Agreement
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[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] Adjusted EPS |
% of Adjusted EPS Target |
[ ] EPS Performance Attainment Factor |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
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General:
Subject to the minimum threshold requirements, linear interpolation will be used based on the level of attainment of the performance goal between vesting levels.
The Committee shall calculate and determine the level of achievement of the performance goals in its sole discretion, which shall be final and binding on all parties to the Agreement.
All amounts used to calculate and determine the level of achievement shall be in USD, with any currency conversions being determined by the Committee is its sole discretion.
Definitions:
“Adjusted EPS” means, for a given Adjusted EPS Performance Period, the Company’s Adjusted Diluted Earnings per share as reported in the applicable earnings release attached as an exhibit to the Company’s Report on Form 8-K for the applicable Adjusted EPS Performance Period.
“Performance Period” means an Adjusted EPS Performance Period or the ROIC Performance Period.
“ROIC” is defined as, with respect to the ROIC Performance Period, Non-GAAP Income from Operations calculated in a manner consistent with the calculation of Adjusted EBITDA as reported in the earnings release attached as an exhibit to the Company’s Report on Form 8-K with respect to the last fiscal year in the ROIC Performance Period, affected by the cash tax rate, divided by the end of period Invested Capital. For purposes of this paragraph, “Invested Capital” is defined as the sum of Total Debt (inclusive of finance lease obligations) as reported in the Company’s Annual Report on Form 10-K and Total Shareholders’ Equity (adjusted for cumulative Share-Based Compensation). The Committee may adjust the ROIC to account for the impact of all (i) mergers, divestitures, and/or acquisitions completed during the ROIC Performance Period, and (ii) changes in tax policy and/or legislation that occur during the ROIC Performance Period.
Appendix A – Performance Restricted Stock Unit Award Agreement
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“Target Award Tranche” means any Adjusted EPS Target Award Tranche or the ROIC Target Award Tranche.
Appendix A – Performance Restricted Stock Unit Award Agreement
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2018 Equity Incentive Plan
Global Performance Restricted Stock Unit Award Agreement
Country-Specific Terms and Conditions
Capitalized terms used but not otherwise defined herein shall have the meaning given to such terms in the Syneos Health, Inc. 2018 Equity Incentive Plan (the “Plan”) and the Global Performance Restricted Stock Unit Award Agreement (the “Performance Restricted Stock Unit Agreement”). This Appendix constitutes part of the Performance Restricted Stock Unit Agreement.
Terms and Conditions
This Appendix B includes additional terms and conditions that govern the PRSUs granted to the Participant if the Participant resides and/or works in a country listed below. If the Participant moves to another country after receiving the grant of the PRSUs, the Company will, in its discretion, determine the extent to which the terms and conditions herein will be applicable to the Participant.
Notifications
This Appendix B also includes information regarding exchange controls and certain other issues of which the Participant should be aware with respect to the Participant’s participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of June 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Participant not rely on the information in this Appendix B as the only source of information relating to the consequences of the Participant’s participation in the Plan because the information may be out of date at the time that the PRSUs vest or the Participant sells Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to the Participant’s particular situation and the Company is not in a position to assure the Participant of a particular result. Accordingly, the Participant should seek appropriate professional advice as to how the relevant laws in the Participant’s country may apply to the Participant’s situation.
Finally, if the Participant is a citizen or resident of a country other than the one in which he or she is currently residing and/or working (or if the Participant is considered as such for local law purposes), the information contained herein may not be applicable to the Participant in the same manner.
Appendix B – Performance Restricted Stock Unit Award
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UNITED KINGDOM
Terms and Conditions
Responsibility for Taxes. The following provisions supplement Section 3 of the Performance Restricted Stock Unit Agreement:
Without limitation to Section 3 of the Performance Restricted Stock Unit Award Agreement, the Participant agrees that the Participant is liable for all Tax-Related Items and hereby covenants to pay all such Tax-Related Items, as and when requested by the Company or the Employer or by Her Majesty’s Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority). The Participant also agrees to indemnify and keep indemnified the Company and the Employer against any Tax-Related Items that they are required to pay or withhold or have paid or will pay to HMRC (or any other tax authority or any other relevant authority) on the Participant’s behalf.
Notwithstanding the foregoing, if the Participant is a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), the immediately foregoing provision will not apply; instead, the amount of any uncollected income tax may constitute a benefit to the Participant on which additional income tax and national insurance contributions may be payable. The Participant is responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for paying the Company or the Employer (as applicable) for the value of any employee national insurance contributions due on this additional benefit.
Appendix B – Performance Restricted Stock Unit Award
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2018 Equity Incentive Plan
Global Restricted Stock Unit Award Agreement
Special Provisions for Certain Executive Officers
The provisions in this Appendix C apply only to Participants in the Syneos Health, Inc.
Executive Severance Plan (as defined below).
1. Involuntary Termination in connection with Change in Control.
This provision replaces Section 2(e) of the Performance Restricted Stock Unit Agreement:
(e) Effect of Involuntary Termination in connection with Change in Control.
The Converted Time-Based RSUs shall immediately vest in full in the event of (A) the Participant’s Service is terminated by the Company or a Subsidiary for any reason other than Cause, or (B) the Participant resigns for Good Reason, in each case, at the time of, or during the period commencing on the date three (3) months prior to a Change in Control and ending twenty-four (24) months following such Change in Control (either of such events of termination within such period, a “CIC Termination”).
(i) For purposes of this Agreement (including Section 2(d)), “Cause,” “Change in Control,” and “Good Reason” shall have the meanings ascribed to such terms in the Syneos Health, Inc. Executive Severance Plan, adopted September 15, 2016, as amended and restated August 20, 2018 (the “Executive Severance Plan”).
(ii) This Section 2(e) shall be interpreted consistently with the provisions of the Executive Severance Plan to give effect to the benefits intended to be provided under the Executive Severance Plan, to the extent the Executive Severance Plan is applicable to the Participant. Further, the vesting acceleration benefits provided under this Section 2(e) shall be subject to the conditions set forth in the Executive Severance Plan, to the extent the Executive Severance Plan is applicable to the Participant.
(iii) Any vesting acceleration provisions contemplated under this Section 2(e) shall be subject to the limitations provided in Section 5.5 of the Plan.
(iv) Any PRSUs that vest pursuant to this Section 2(e) shall also be subject to the additional settlement provisions and subject to the conditions set forth in the Executive Severance Plan, to the extent the Executive Severance Plan is applicable to the Participant.
Appendix C – Performance Restricted Stock Unit Award Agreement
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Appendix C – Performance Restricted Stock Unit Award Agreement
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The Participant acknowledges and agrees that in light of the Participant’s access to Confidential Information and Participant’s position of trust and confidence with the Company or its Subsidiaries, Participant shall be subject to the restrictive covenants set forth herein. The Participant knows that the promises in this Restrictive Covenants Agreement (“RCA”) are an important way for the Company and its Subsidiaries to protect their proprietary interests and understands that the terms of this RCA are affected by the location in which the Participant is employed, as stated in Attachment A and Attachment B, and Attachment C to this RCA. As a condition of the grant of the PRSUs, the Participant agrees as follows:
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Notwithstanding the foregoing, the term “Confidential Information” shall not include information which (i) is already known to the Participant prior to its disclosure to the Participant by the Company; (ii) is or becomes generally available to the public through no wrongful act of any person; (iii) is at the time of disclosure part of the public knowledge or literature through no wrongful action by the Participant; or (iv) is received by the Participant from a third party without restriction and without any wrongful conduct on the part of such third party relating to such disclosure. The Participant acknowledges and agrees that the Confidential Information he/she obtains or becomes aware of as a result of his/her employment with the Company or any of its Subsidiaries is not generally known or available to the general public, but has been developed, compiled or acquired by the Company at its great effort and expense and that the Participant is required to protect and not disclose such information.
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Further, 18 U.S.C. § 1833(b) states: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, the parties to this RCA have the right to disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The parties also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this RCA is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C.§ 1833(b).
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Attachment A to RCA
California Law Modifications
This Attachment A modifies certain terms of the RCA while Participant is providing services to the Company, if Participant is based in California. If, at any time, Participant is relocated by the Company, to another state outside of California, the unmodified terms of the RCA will apply and this Attachment A will no longer apply. Similarly if Participant is originally based in a state outside of California, but the Company relocates Participant to California, the modified terms of this Attachment A will apply, as set forth below. For purposes of this RCA, Participant may only be employed in one state at any given time and any travel required by Participant’s role will not affect the Company’s determination of where Participant is based.
Section 2 shall be deleted and replaced as follows:
2. Non-Solicitation of Employees. The Participant agrees that during the Participant’s employment with the Company or any of its Subsidiaries and during the Non-Solicit Restricted Period, the Participant will not, on the Participant’s own behalf, nor as an officer, director, stockholder, partner, associate, employee, owner, executive, consultant or otherwise on behalf of any person, firm, partnership, corporation, or other entity, solicit, induce, encourage, entice or attempt to solicit, induce, encourage or entice any Company Person to terminate or alter his or her employment or engagement with the Company or any Subsidiaries or to accept employment or engagement with any other person or entity.
Section 3(a) shall be deleted and replaced as follows:
(a) During Participant’s employment with the Company or any of its Subsidiaries, Participant shall not, directly or indirectly, either alone or in conjunction with any person, firm, association, company, corporation or other entity own, manage, operate or participate in the ownership, management, operation or control of, or be employed by or provide services to, any person, business or entity which is competitive with the Company Business if Participant would: (i) have responsibilities that are entirely or substantially similar to the responsibilities Participant has, or had held, at any time during Participant’s employment with the Company or any of its Subsidiaries; or (ii) be involved in creating, developing, modifying, accessing, utilizing or relying upon confidential information that is similar or relevant to that Confidential Information to which Participant created, developed, modified, accessed, utilized or relied upon during Participant’s employment with the Company or any of its Subsidiaries.
Section 10 shall be deleted and replaced as follows:
10. Governing Law
This RCA and all disputes, claims or controversies arising out of or related to this RCA, shall be governed by and construed in accordance with the laws of the state of California, without giving effect to any choice of law or conflict of law provision or rule (whether of California or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of California. Participant agrees that venue for any proceeding seeking temporary or preliminary injunctive relief to preserve or restore the status quo pending arbitration of any
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disputes, claims or controversies arising out of or related to this RCA is proper in the federal or state courts of Orange County, California and that these courts shall have exclusive jurisdiction over any such proceeding and Participant specifically consents to personal jurisdiction in such court(s), even if Participant does not reside in Orange County at the time of the dispute. Participant hereby irrevocably waives any objection Participant may now or hereafter have to the laying of venue of any such proceeding in the State of California, and further irrevocably waives any claim Participant may now or hereafter have that any such proceeding brought in said court(s) has been brought in an inconvenient forum.
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Attachment B to RCA
This Attachment B modifies certain terms of the RCA while Participant is providing services to the Company, if Participant is based in Massachusetts. If, at any time, Participant is relocated by the Company, to another state outside of Massachusetts, the unmodified terms of the RCA will apply and this Attachment B will no longer apply. Similarly if Participant is originally based in a state outside of Massachusetts, but the Company relocates Participant to Massachusetts, the modified terms of this Attachment B will apply, as set forth below. For purposes of this RCA, Participant may only be employed in one state at any given time and any travel required by Participant’s role will not affect the Company’s determination of where Participant is based.
Section 1(c) of the RCA shall be deleted and replaced as follows:
(c) “Non-Compete Restricted Period” means the period commencing on the Termination Date and ending twelve (12) months after the Termination Date, provided that the Participant’s employment with the Company was due to the Participant’s voluntary separation from employment with the Company or the involuntary termination of the Participant’s employment by the Company for cause; provided, however, that in the event that the Company files an action to enforce rights arising out of this RCA, the Non-Compete Restricted Period shall be extended for all periods in which the Participant is determined by the Court to have been in violation of the Participant’s obligations under this RCA or any other fiduciary obligation owed to the Company.
Section 3 of the RCA shall be amended to include the following:
(c) If, prior to October 1, 2018, the Participant entered into an agreement with the Company containing non-competition and/or non-solicitation covenants, the Participant hereby reaffirms that the Participant is subject to, and bound by, the pre- and post-termination non-competition and non-solicitation covenants set forth in those agreements.
Section 10 shall be deleted and replaced as follows:
10. Governing Law
This RCA and all disputes, claims or controversies arising out of or related to this RCA, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to any choice of law or conflict of law provision or rule (whether of Massachusetts or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the Commonwealth of Massachusetts. Participant agrees that venue for any proceeding seeking temporary or preliminary injunctive relief to preserve or restore the status quo pending arbitration of any disputes, claims or controversies arising out of or related to this RCA is proper in the federal or state courts in the county within Massachusetts where the Participant resides or the Suffolk County Business Litigation Session, and that these courts shall have exclusive jurisdiction over any such proceeding and Participant specifically consents to personal jurisdiction in such court(s), even if Participant does not reside in Suffolk County at the time of the dispute. Participant hereby irrevocably waives any objection Participant may now or hereafter have to the laying of venue of any such proceeding in the Commonwealth of Massachusetts, and further irrevocably waives any claim Participant may now or hereafter have that any such proceeding brought in said court(s) has been brought in an inconvenient forum.
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Section 13 of the RCA shall be amended to include the following:
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Attachment C to RCA
Colorado Law Modifications
This Attachment C modifies certain terms of the RCA if Participant primarily works or resides in Colorado. If, at any time during Participant’s employment, Participant is relocated by the Company to another state outside Colorado and no longer primarily works or resides in Colorado, the unmodified terms of the RCA will apply and this Attachment C will no longer apply to Participant. Similarly, if Participant is originally based in a state outside of Colorado, but the Company relocates Participant to Colorado, the modified terms of this Attachment C will apply to Participant, effective 14 days after provision of the required notice of restrictive covenant obligations as set forth below. For purposes of this RCA, Participant may only be employed in one state at any given time and any travel required by Participant’s role will not affect the Company’s determination of where Participant is based.
The preamble of the RCA is deleted and replaced with the following::
The Participant acknowledges and agrees that the Company or an Affiliate will provide Participant with access to and training with regard to Trade Secrets (as defined herein), which Participant recognizes to be of substantial value and which Participant acknowledges would not have been provided by the Company or an Affiliate if Participant did not agree to the terms of this Restrictive Covenants Agreement (“RCA”). Participant further acknowledges and agrees, in light of the Participant’s access to Trade Secrets, and Participant’s position of trust and confidence with the Company or its Subsidiaries, Participant shall be subject to the restrictive covenants set forth herein. The Participant knows that the promises in this RCA are an important way for the Company and its Subsidiaries to protect their Trade Secrets and understands that the terms of this RCA are affected by the location in which the Participant is employed, as stated in Attachment A, Attachment B, and Attachment C to this RCA. As a condition of the grant of the RSUs, the Participant agrees as follows:
The following is added to Section 2 of the RCA:
The restrictions in Section 2(a) and (c) only apply to the extent Participant earns, both at the time this RCA is entered into and at the time the Company enforces it, an amount of annualized cash compensation equivalent to or greater than 60% of the threshold amount for highly compensated workers as determined by the Colorado Department of Labor and Employment at the time this RCA is entered into, and such activities will involve the inevitable use of, or near-certain influence by Participant’s knowledge of, Trade Secrets disclosed to Participant during the course of employment with the Company.
The restrictions in Section 2(b), (d), (e), (f), and (g) only apply to the extent Participant earns, both at the time this RCA is entered into and at the time the Company enforces it, an amount of annualized cash compensation equivalent to or greater than the threshold amount for highly compensated workers as determined by the Colorado Department of Labor and Employment at the time this RCA is entered into, and such activities will involve the inevitable use of, or near-certain influence by Participant’s knowledge of, Trade Secrets disclosed to Participant during the course of employment with the Company.
For purposes of this Section, “Trade Secrets” include any Confidential Information disclosed to or acquired by Participant as a consequence of or through Participant’s employment by the Company that is not generally known in the industry or industries in
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which the Company is or may become engaged, which is secret and of value, and which the Company has taken measures to prevent from becoming available to persons other than those selected by the Company to have access thereto for limited purposes, as well as any information recognized as a trade secret by applicable Colorado law.
The following is added to Section 3 of the RCA:
The restrictions in Section 3 only apply to the extent Participant earns, both at the time this RCA is entered into and at the time the Company enforces it, an amount of annualized cash compensation equivalent to or greater than the threshold amount for highly compensated workers as determined by the Colorado Department of Labor and Employment at the time this RCA is entered into, and such activities will involve the inevitable use of, or near-certain influence by Participant’s knowledge of, Trade Secrets disclosed to Participant during the course of employment with the Company.
For purposes of this Section, “Trade Secrets” include any Confidential Information disclosed to or acquired by Participant as a consequence of or through Participant’s employment by the Company that is not generally known in the industry or industries in which the Company is or may become engaged, which is secret and of value, and which the Company has taken measures to prevent from becoming available to persons other than those selected by the Company to have access thereto for limited purposes, as well as any information recognized as a trade secret by applicable Colorado law.
The following is added to Section 5(b) of the RCA:
Participant further acknowledges and agrees that the restrictions in this Section 5 are reasonable and shall not prohibit the disclosure of information arising from Participant’s general training, knowledge, skill, or experience, whether gained on the job or otherwise, information readily ascertainable to the public, and/or information Participant has a right to disclose as legally protected conduct.
Section 6 of the RCA is deleted and replaced with the following:
6. Participant acknowledges that the restrictive covenants contained in this RCA are in addition to, and not in lieu of, any other restrictive covenants between the Participant and the Company or any of its Subsidiaries.
The following is added to Section 7 of the RCA:
Participant acknowledges and agrees that the restrictive covenants contained in this RCA are reasonably necessary to protect the Company’s Trade Secrets, are reasonable with respect to scope of activities prohibited, time and geographic restrictions, do not interfere with public interest or public policy and will not deprive Participant of the ability to earn a reasonable living.
The following is added to Section 10 of the RCA:
Notwithstanding anything in the RCA or the Mutual Arbitration Agreement to the contrary, the enforceability of any restrictive covenants in this RCA shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to any choice of law or conflict of law provision or rule (whether of Colorado or any other
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jurisdiction) that would cause the application of the law of any other jurisdiction other than the State of Colorado. Also notwithstanding anything in the RCA or the Mutual Arbitration Agreement to the contrary, venue for any action adjudicating the enforceability of any restrictive covenants in this RCA shall be in the federal or state courts of Denver County, Colorado, these courts shall have exclusive jurisdiction over any such action, and Participant specifically consents to personal jurisdiction in such court(s) even if Participant does not reside in Denver County at the time of the dispute.
The following is added as Section 13(e) of the RCA:
(e) Participant acknowledges and agree Participant has been provided with, and has signed, a separate notice of Participant’s obligations under the RCA either (1) prior to Participant’s acceptance of employment with the Company or (2) for current employees of the Company, at least fourteen (14) days before the effective date of this RCA. Participant further acknowledges and agrees this RCA shall not become effective until (1) Participant’s first day of employment, if presented with such notice and a copy of the RCA prior to accepting an offer of employment, or (2) for current employees of the Company, fourteen (14) days after receiving such notice and a copy of the RCA.
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APPENDIX B
MUTUAL ARBITRATION AGREEMENT
This Mutual Arbitration Agreement (“Agreement”) sets forth the terms of the agreement between Syneos Health, Inc. and you (the “Parties”) regarding an alternative approach for resolving employment-related disputes.
1. Mutual Arbitration Agreement
a. Except as described in Section 3, titled “Claims Not Covered by this Agreement,” all disputes, claims, complaints, or controversies (“Claims”) that you have had in the past, have now, or at any time in the future may have, against the Company and/or any of its parents, subsidiaries, affiliates, predecessors, successors, assigns, current, former, or future officers, directors, employees, and/or those acting as an agent of the Company (which make up the definition of the “Company” for purposes of this Agreement), as well as any company to which you were assigned to provide services (each a “Customer”), and/or any of its parents, subsidiaries, affiliates, predecessors, successors, assigns, current, former, or future officers, directors, employees, and/or those acting as an agent of the Customer, or that the Company has now or at any time in the future may have against you (“Covered Claims”), arising out of and/or related to your application for employment with the Company, employment with the Company, termination of your employment with the Company, your assignment to any Customer, the services you may have provided to a Customer, and/or the termination of that assignment, will be resolved by arbitration and NOT by a court or jury.
Claims that the Parties agree to arbitrate include, but are not limited to, the following:
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THE PARTIES HEREBY FOREVER WAIVE AND GIVE UP THE RIGHT TO HAVE A JUDGE OR A JURY DECIDE ANY COVERED CLAIMS. Either party to this Agreement may make application to a court for temporary or preliminary injunctive relief in aid of arbitration or for the maintenance of the status quo pending arbitration.
b. Employee Election: You may elect to pursue claims for sexual harassment and/or sexual assault (“Excludable Claims”) in court rather than in arbitration. In the event you elect to exclude such claims from this Agreement, you agree to sever any Excludable Claims from any case brought by you that contains arbitrable claims, and to pursue any Excludable Claims in a case separate from any arbitrable claims.
2. Class, Collective, and Representative Action Waiver:
a. Waiver of Class and Collective Actions: To the maximum extent permitted by applicable law, the Parties agree that no Covered Claims may be initiated or maintained on a class action or collective action basis either in court or arbitration. This means that neither party may serve or participate as a class or collective action member or representative, or receive any recovery from a class or collective action involving Covered Claims either in court or in arbitration. In addition, neither you nor the Company may participate as a plaintiff or claimant in a class or collective action to the extent that the action asserts Covered Claims against you or the Company.
b. Waiver of Certain Representative Actions: The Parties knowingly agree to waive their rights to initiate or maintain or participate in a Non-individual Covered Claim on a representative action basis either in court or arbitration to the extent such a waiver does not extinguish any substantive rights, and, to the maximum extent permitted by law, will not be entitled to and will decline to accept any recovery from such an action.
c. Arbitrator’s Authority: The Parties also agree that the arbitrator will have no power to adjudicate or award remedies for injuries that you or the Company have not personally experienced (“Non-individual” claims). Therefore, the parties agree that the arbitrator cannot hear or decide Non-individual claims. Claims may not be joined or consolidated in arbitration with disputes brought by other individual(s), unless agreed to in writing by all parties. The arbitrator has no authority or power to make class or collective or Non-individual representative
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decisions, allow class or collective or Non-individual representative discovery, or award class or collective or Non-individual representative remedies. Similarly, the arbitrator has no authority or power to award penalties pursuant to the California Private Attorney General Act (“PAGA”), if applicable, other than for proven Labor Code violations you have personally suffered.
d. Court to Decide Enforceability of the Waivers: A court of competent jurisdiction, not an arbitrator, must resolve issues concerning the enforceability or validity of the class action, collective action, or representative action waivers set forth above. If, for any reason, any portion of the class or collective or representative action waiver is held unenforceable or invalid in whole or in part, then a court of competent jurisdiction, not an arbitrator, will decide the claim or portion of the claim as to which the class or collective or representative action waiver was held unenforceable, including deciding whether the party has standing to maintain the claim in court; however, for any portion of the waiver that remains valid, the claim must be arbitrated on an individual basis. Further, all individual Covered Claims, including individual claims under PAGA, will remain subject to arbitration.
e. No Prohibition on Filings Or Communications With Government Agencies: Nothing in this Agreement shall prohibit you from filing a charge, complaint, or claim, or communicating or cooperating with, providing information to, or participating in an investigation by the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board, the U.S. Department of Labor, the Occupational Safety and Health Administration, or any other federal, state, or local administrative agency. To the extent a Covered Claim is not fully and finally resolved before the agency, it is subject to arbitration under this Agreement rather than any proceeding in court.
3. Claims Not Covered by this Agreement. The following claims shall not be covered by this Agreement:
a. Claims for workers’ compensation benefits (provided that claims for workers’ compensation retaliation remain Covered Claims);
b. Claims for unemployment compensation benefits;
c. Claims for any relief asserted under or governed by the Employee Retirement Income Security Act of 1974 (“ERISA”); resolution of such claims will be governed by the terms of the applicable plan and applicable law;
d. Claims that are subject to the exclusive jurisdiction of the National Labor Relations Board;
e. Claims brought with the California Division of Labor Standards Enforcement while pending with the agency;
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f. Non-individual Claims brought pursuant to PAGA; individual PAGA Claims for violations that you claim to have suffered are subject to individual arbitration under this Agreement;
g. Claims for public injunctive relief (e.g. claims seeking injunctive relief that benefits citizens as a whole, not just the employee or a group of employees); a court, not an arbitrator, shall decide whether a claim is for public or private injunctive relief, and any Covered Claims for private injunctive relief must be arbitrated on an individual basis; and
h. Any claim that is expressly precluded from inclusion in this Arbitration Agreement by a governing federal statute.
4. Arbitration Procedures
a. The Parties will use the Judicial Arbitration and Mediation Services (“JAMS”), subject to the JAMS Employment Arbitration Rules and Procedures and the JAMS Policy on Employment Arbitration Minimum Standards of Procedural Fairness (“JAMS Arbitration Rules”), or any successor rules, available at xxx.xxxxxxx.xxx or a copy will be provided upon request from Human Resources, unless those rules and/or procedures conflict with any express term of this Agreement, in which case this Agreement is controlling. To the extent JAMS is unavailable to process the arbitration, any successor arbitration forum will be used or, if there is no successor forum, the parties will select an alternative arbitrator or forum or one will be appointed by a court, and the arbitration will proceed under the rules most applicable to employment claims, except to the extent that such rules conflict with this Agreement, in which case this Agreement is controlling.
To initiate an arbitration with JAMS, complete a Demand for Arbitration Form, available at: xxx.xxxxxxx.xxx/xxxxx/Xxxxxxx/Xxxxxxxxx/XXXX_Xxxxxxxxxxx_Xxxxxx.xxx. Please follow the instructions contained in the Demand for Arbitration Form.
b. No arbitration under this Agreement shall be subject to the JAMS Class Action Procedures.
c. The demand for arbitration must be in writing and include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of each claim, (3) a description of the remedy sought, (4) the amount in controversy, and (5) the claimant’s handwritten or electronic signature.
d. The arbitration will be heard by a single arbitrator at a location within 50 miles of where you worked for the Company in the U.S. at the time the claim arose, unless both parties agree otherwise. In the event you are a field-based employee, or work primarily from your residence, the residence at the time the claim arose shall be considered the work location for purposes of determining
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the location of the arbitration. In the event you are working for the Company outside of the U.S. on temporary assignment or is otherwise located outside the U.S. when the claim arises, you agree that the arbitration will take place in North Carolina.
d. Any Party shall have the right to file a motion to dismiss and/or a motion for summary judgment, which the arbitrator shall have the authority and obligation to decide by application of the Federal Rules of Civil Procedure governing such motions. The responsibilities, procedures, and sanctions of Federal Rule of Civil Procedure, Rule 11, are also incorporated into this Agreement.
e. The arbitrator is authorized to award any party the full remedies that would be available to such party if the Covered Claim had been filed in court, including attorneys’ fees and costs. Thus, for example, you shall be entitled to recover attorney’s fees and costs in any arbitration in which you assert and prevail on any statutory claims to the same extent as you could in court.
f. The arbitrator shall issue a final and binding written award, subject to review on the grounds set forth in the Federal Arbitration Act (“FAA”). No award or decision by the arbitrator shall have any preclusive effect on issues or claims in any other arbitration or court proceeding, unless all of the parties in the other proceeding were also named parties in the arbitration in which the award or decision was issued.
5. Arbitration Fees and Costs
a. In the event you file a claim under this Agreement, you will pay the arbitration provider’s employee-designated filing fee, or the normal filing fee in the state or federal court in which the dispute arose, whichever is lowest, and the Company will pay any amount of the JAMS fee in excess of that amount.
b. The Company will pay any other JAMS administrative fees, the arbitrator’s fees, and any additional fees charged by the arbitral forum.
c. Any required initial filing fees for the arbitration shall be due no sooner than thirty (30) after receipt of an invoice from the arbitral tribunal for those initial filing fees. After payment of the initial filing fee, any required fees or costs for the services of the arbitrator shall be due no sooner than thirty (30) days after the services are rendered by the arbitrator. Fees and costs for the arbitration hearing shall be due thirty (30) days before the arbitration hearing begins.
6. Other Provisions:
a. Time Limitation for Commencing Arbitration: The same statute of limitations (the maximum time that parties have to initiate legal proceedings from the date a claim arises) that would have applied if the Covered Claim was filed in court will apply
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to any Covered Claim. Arbitration is to be commenced consistent with the JAMS arbitration rules and procedures, as applicable.
b. Agreement Survives Termination of Employment: This Agreement will survive the termination of your employment with the Company. This Agreement supersedes any prior agreement between the Parties regarding the subject matter of dispute resolution of Covered Claims.
c. Construction and Severability:
i. Except as expressly provided elsewhere in this Agreement, any issue concerning the validity or enforceability of this Agreement, and any issue concerning the arbitrability of a particular issue or claim pursuant to this Agreement, must be resolved by the arbitrator, not the court. A court, not an arbitrator, must resolve issues concerning the enforceability or validity of the class action, collective action, or representative action waivers set forth above.
ii. Except as provided in Section 2(d) above, if any part or provision of this Agreement is found to be void, voidable, or otherwise unenforceable, that part or provision shall be severed and such a finding will not affect the validity of the remainder of the Agreement, and all other parts and provisions remain in full force and effect. To the extent any claims (or portions of claims) are found to be required to proceed in court, all other Covered Claims (or portions of such claims), shall still be required to be arbitrated, and the claims required to proceed in court by a party found to have standing to proceed shall be stayed pending arbitration of the other claims, unless contrary to applicable law.
iii. If any portion of the class action, collective action, or representative action waivers above is found to be void, voidable, or otherwise unenforceable, then the portion of the waivers found void or unenforceable shall be severed from this Agreement, and all other parts and provisions shall remain in full force and effect. In such a case, the claims (or portions of claims) found to be able to proceed on a class action, collective action, or representative action basis shall proceed in court and not in arbitration. All other parts and provisions that are not found void or unenforceable shall remain in full force and effect and arbitrated on an individual basis.
d. Governing Law: This Agreement is governed by the FAA and, to the extent not inconsistent with or preempted by the FAA, by the laws of the state in which you last worked for the Company without regard to choice or conflicts of law rules. The Company’s business, your employment with the Company, and this Agreement affect interstate commerce. The arbitrator is obligated to follow and apply the law applicable to any Covered Claims, and does not
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have the authority to enlarge upon or add to, subtract from or disregard, or otherwise alter the Parties’ rights under such laws.
7. Acknowledgements: By accepting the terms of this Agreement, you acknowledge and represent that:
a. you have carefully read this Agreement, understand the terms of this Agreement, and are entering into this Agreement voluntarily;
b. you are not relying on any promises or representations by the Company except those contained in this Agreement;
c. you are giving up the right to have Covered Claims decided by a court, judge or jury;
d. you remain employed “at will,” and for no definite period of time;
e. these obligations are binding both upon you and your assigns, executors, administrators and legal representatives;
f. you have been given a reasonable period of time in which to consider this Agreement; and
g. you have been given the opportunity to discuss this Agreement with your own attorney or advisor if you wish to do so.
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