Exhibit (10) (d)
Execution Copy
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
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This is a Confidentiality and non-Competition Agreement dated as of April 7, 2003 between
West Pharmaceutical Services, Inc., a Pennsylvania corporation, (the "Company") and
Xxxxx X. Xxxxx ("Executive").
In consideration of the employment of Executive by the Company and the compensation
and benefits outlined below, and intending to be legally bound, the Company and
Executive hereby agree as follows:
1. Definitions. As used in this Section, the following terms shall have the meanings
set forth below:
1.1 An "Affiliate" of any Person means any Person directly or indirectly
controlling, controlled by or under common control with such Person.
1.2 "Company's Business" means the business of the Company or any Affiliate
of the Company:
(a) in the development of proprietary drug-delivery technologies tha
provide optimized therapeutic effects for challenging drug molecules,
such as peptides and proteins, carbohydrates, oligonucleotides, as
well as systems for vaccines, gene therapy and diagnostic applications,
and other business being carried on by the Company's Drug Delivery
Development division in Lionville, Pennsylvania, and Nottingham, England;
(b) the performance of human clinical-trial studies and related
services, all as carried on by the Company's Clinical Research
Group and GFI Research Center; and
(c) any other business conducted by the Company or any Affiliate
of the Company during the Restrictive Period in which Executive
has been actively involved while an employee of the Company
or any such Affiliate.
For the avoidance of doubt, Executive agrees that the phrase "Person
engaged in competition with the Company's Business" as used in Section
2 hereof includes, without limitation, the companies listed on
Exhibit "A" to this Agreement, their Affiliates and subsidiaries.
1.3 "Exit Date" means the date on which Executive ceases to be employed by
the Company or any of its Affiliates.
1.4 "Person" means an individual, a corporation, a partnership, an association,
a trust or other entity or organization.
1.5 "Restrictive Period" means the period of time that commences on the date
of this Agreement and ends on the first anniversary of the Exit Date.
1.6 "Subsidiary" has the meaning ascribed to the term by section 425(f) of
the Internal Revenue Code.
2. Covenant-Not-to-Compete. During the Restrictive Period, Executive will not,
and will not permit any of Executive's Affiliates, or any other Person, directly
or indirectly, to:
2.1 engage in competition with, or acquire a direct or indirect interest or
an option to acquire such an interest in any Person engaged in competition
with, the Company's Business anywhere in the world (other than an interest
of not more than five percent (5%) of the outstanding stock of any
publicly traded company);
2.2 serve as a director, officer, employee or consultant of, or furnish
information to, or otherwise facilitate the efforts of, any Person
engaged in competition with the Company's Business anywhere in
the world, provided, however, that nothing contained in this clause
shall preclude Executive from continuing to serve as a member of the
board of directors of Polygenetics Inc., Medisys Technologies,
Inc. and NuSaf, LLC (provided he spends no more time relating to
such directorships than he does at the date of this Agreement)
subject to his holding such directorships not being in breach of
any other provision of this Agreement nor in any way in the
reasonable opinion of the Company be considered to impair Executive's
ability to act at all times in the best interests of the Company or
adversely affect is performance of his duties as an employee of
the Company;
2.3 solicit, employ, interfere with or attempt to entice away from
the Company or any Affiliate of the Company any employee who has
been employed by the Company or any such Affiliate in an executive,
scientific or technical capacity in connection with the conduct of
the Company's Business within one year prior to such solicitation,
employment, interference or enticement; or
2.4. approach, solicit or deal with in competition with the Company or
any Subsidiary any Person which at any time during the 12 months
immediately preceding the Exit Date:
(a) was a customer, client, supplier, agent or distributor of
the Company or any Subsidiary;
(b) was a customer, client, supplier, agent or distributor of
the Company or any Subsidiary with whom employees reporting
to or under Executive's direct control had personal contact
on behalf of the Company or any Subsidiary; or
(c) was a Person with whom Executive had regular, substantial
or a series of business dealings on behalf of the Company or
any Subsidiary (whether or not a customer, client, supplier,
agent or distributor of the Company or any Subsidiary).
The Restrictive Period shall be automatically extended for any period of time
during which the Executive has breached, or threatened to breach, any provisions
hereof.
3. Benefits Payable Upon Termination of Employment.
3.1 Executive will be entitled to the benefits specified in Section 3.2
hereof if Executive's employment by the Company is terminated by the
Company, other than by reason of death, disability, continuous willful
misconduct to the detriment of the Company, or retirement pursuant to the
Company's Employees' Retirement Plan (or any successor pension plan
thereto) (the "Retirement Plan"). Executive will not be entitled to
the benefits specified in Section 3.2 hereof if Executive's employment
terminates for any other reason, including without limitation
Executive's voluntary resignation, or if during the term of Executive's
employment or at any time thereafter, Executive breaches any of the
covenants contained in Section 2 hereof.
3.2 Upon termination of employment as set forth in Section 3.1 hereof,
Executive shall be entitled to the following benefits:
(a) Compensation. Executive's regular bi-weekly salary as
in effect on the date of termination of Executive's employment
will continue until the earlier of (i) a period of 12 months
after termination of Executive's employment, or (ii) Executive
becomes employed on a full-time basis.
(b) Employee Benefits. Executive will be entitled to a continuation
of all medical, dental and life insurance in the same manner
and amount to which Executive was entitled on the date of
termination of Executive's employment until the earlier of
(i) a period of 12 months after termination of Executive's
employment, or (ii) Executive's eligibility for similar benefits
with a new employer.
3.3 Upon termination of Executive's employment, Company cars must be returned
to the Company. All other benefits not otherwise addressed in this
Agreement shall terminate as of the date of termination of Executive's
employment unless such termination is contrary to law.
4. Inventions and Company Property.
4.1 In this Agreement the term "Inventions" includes inventions, ideas,
techniques, methods, developments, improvements and all other forms
of intellectual property. All rights in Inventions which Executive
conceives, makes or obtains either alone or with others during
Executive's employment by the Company (both before and after the date
of this Agreement) and within six months after Executive's
employment ends, are and shall be the property of the Company,
except as set forth in paragraph 4.2 hereof.
4.2 This Agreement does not apply to Inventions that the Company determines
in its sole discretion to be unrelated to any matter of actual or potential
interest to the Company unless they are conceived, made or obtained in the
course of Executive's employment or with the use of the time, materials or
facilities of the Company. This Agreement also does not apply to
inventions conceived, made or obtained by Executive before Executive's
employment by the Company, a complete listing of which is attached hereto
as a matter of record.
4.3 Executive will make full and prompt disclosure to the Company of all
Inventions that are defined by this Section 4 to be the Company's property.
At the Company's request and expense (but without additional compensation to
Executive), Executive will at any time take such actions as the Company
reasonably considers necessary to obtain or preserve the Company's rights
in such Inventions. These actions may include, but are not necessarily
limited to, signing and delivering applications, assignments and other
papers and testifying in legal proceedings.
5. Confidential Information. Executive will not, during or after Executive's employment
with the Company, use for himself or others, or disclose to others, any formulae,
trade secrets, customer lists, know-how, Inventions which are the Company's
property, or other confidential matters of the Company or its Affiliates unless
authorized in writing to do so by the Company. Executive understands that
these matters are kept confidential and secret by the Company, would be of
great value to competitors, and would result in irreparable harm the Company
if known to competitors. As used in this Agreement, the phrase "confidential
matters of the Company" includes all information of a technical, commercial
or other nature and that any information not made available to the general
public is to be considered confidential.
6. Papers. All correspondence, memoranda, notes, records, reports, drawings,
lists, photographs, plans and other papers and items received or made by
Executive in connection with Executive's employment by the Company,
in any form including electronic, shall be the property of the Company.
Executive will deliver all copies of such materials to the Company upon
request of the Company and, even if it does not request, when Executive's
employment by the Company ends.
7. Enforcement. Executive acknowledges that a breach of this Agreement will
cause the Company immediate and irreparable harm for which the Company's
remedies at law (such as money damages) will be inadequate. The Company
shall have the right, in addition to any other rights it may have, to obtain
an injunction to restrain any breach or threatened breach of this Agreement.
Should any provision of this Agreement be adjudged to any extent invalid by
any competent tribunal, that provision will be deemed modified to the extent
necessary to make it enforceable. The Company may contact any person with or
for whom Executive works after Executive's employment by the Company ends and
may send that person a copy of this Agreement.
8. Binding Effect. Executive's undertakings hereunder will bind him and Executive's
heirs and legal representatives regardless of (a) the duration of Executive's
employment by the Company, (b) any change in Executive's duties or the
nature of Executive's employment, (c) the reasons for manner of termination
of Executive's employment, and (d) the amount of Executive's compensation.
9. Miscellaneous. This Agreement (a) shall in no way bind Executive or the
Company to a specific term of employment, (b) supersedes any prior understandings
and constitutes the entire understanding between the Company and Executive
about the subject matter covered by this Agreement, (c) may be modified
or varied only in writing signed by the Company and Executive, (d) will
inure to the benefit of the successors and assigns of the Company, and (e)
will be governed by Pennsylvania law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
_________________________________
XXXXX X. XXXXX
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WEST PHARMACEUTICAL SERVICES, INC.
By: Xxxxxxx X. Xxxxx
Title: Vice-President, Human Resources
List below or on a separate page all previous Inventions referred to in
Section 3 above.
(If none, please so indicate.)
Exhibit "A"
3-M Drug Delivery Systems Division
Aerogen
Alkermes
ALZA Corp.
Andrx
Antares (Medi-Ject)
Aradigm
Bentley Pharmaceutical
Bestpak
Biovail Corp.
Elan Corp.
Elite Pharmaceuticals
Emisphere
Ethypharm XX
Xxxxx- Xxxxxxxxxx
Focus Inhalation
Guilford Pharmaceutical
Innovative Drug Delivery Systems
In-Site Vision
Lavipharm Corp.
Nastech
Nektar
Penwest Pharmaceuticals
Phasex Corporation
XX Xxxxxxx
Rx Kinetix
Sheffield Pharmaceuticals
Unigene
