Exhibit 10.162
SEVERANCE AGREEMENT
THIS AGREEMENT, effective the 1st day of January, 2001, by and between
Pharmaceutical Product Development, Inc. and its subsidiaries and affiliates
(collectively, "PPD") and (see Exhibit A) ("Employee").
WHEREAS, Employee is a valued employee of PPD and in order to induce
Employee to remain in the employ of PPD, PPD desires to provide the severance
benefits hereinafter described in the event of a "Change in Control", as
hereinafter defined, of PPD.
NOW, THEREFORE, it is agreed as follows:
1. Definitions
1.01 "AFR" means the interest rate determined under Section 1274 of
the Code.
1.02 "Base Amount" shall have the meaning set forth and shall be
determined as provided in Section 280G of the Code.
1.03 "Change in Control" means (i) a change of control of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended ("Exchange Act"), provided that such a Change in Control shall be deemed
to have occurred if any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of PPD representing 50% or more of the combined voting
power of PPD's then outstanding securities; (ii) a sale of substantially all of
the assets of PPD; or (iii) a liquidation of PPD.
1.04 "Constructive Termination" means a termination of Employee's
employment by PPD during the Covered Period initiated by Employee after (i) a
substantial diminution or alteration in the duties of Employee, (ii) a reduction
by PPD in Employee's base salary in effect on the date of the Change in Control,
or (iii) the relocation of Employee's primary work location to a location that
is more than twenty-five (25) miles from Employee's primary work location prior
to the Change in Control. Constructive Termination specifically does not include
termination of Employee by reason of death, Disability or retirement at or after
age 65. Employee shall give PPD written notice of a Constructive Termination,
which notice shall provide a brief description of the circumstances which
Employee asserts gives rise to a right of Constructive Termination, and PPD
shall have ten (10) days from receipt of said notice within which to remedy said
circumstances.
1.05 "Covered Payment" means the amounts and benefits paid to
Employee pursuant to this Agreement, taken together with any amounts or benefits
otherwise paid or distributed to Employee by PPD.
1.06 "Covered Period" means the time period commencing on the date of
and coincident with a Change of Control and ending one year thereafter.
1.07 "Disability" means the inability of Employee to perform his
assigned duties for PPD for a period of three (3) months due to Employee's
physical or mental illness as determined by a reputable medical doctor.
1.08 "Excess Parachute Payment" shall have the meaning set forth and
shall be determined as provided in Section 280G of the Code.
1.09 "Excise Tax" shall mean the tax imposed under Section 4999 of
the Code on an Excess Parachute Payment.
1.10 "Executive Consultant" shall mean the executive compensation or
comparable consultant used from time to time by PPD in designing its
compensation program for executive and senior management employees of PPD;
provided, however, that in its sole discretion PPD may at any time designate its
independent auditors as its Executive Consultant for the purpose of performing
any calculations required under Section 2.05 of this Agreement.
1.11 "Final Determination" means a final determination by a court of
competent jurisdiction or a proceeding of the Internal Revenue Service or its
successor agency.
1.12 "First Period" means the twelve-month period ending on the
Termination Date.
1.13 "Internal Revenue Code" means the Internal Revenue Code of 1986
as heretofore or hereafter amended, and any successor code. References in this
agreement to specific sections of the Code shall also include any successor
sections.
1.14 "Parachute Payments" shall have the meaning set forth and shall
be determined as provided in Section 280G of the Code.
1.15 "Payment Cap" means the maximum amount which may be paid to
Employee under the terms of this Agreement without subjecting Employee to the
Excise Tax.
1.16 "Payment Date" means the date thirty (30) days following the
Termination Date.
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1.17 "Stock Awards" means Employee's outstanding awards of PPD
non-qualified stock options or restricted stock as of the Termination Date.
1.18 "Termination for Cause" means (i) an act or acts involving
fraud, embezzlement or theft from PPD, (ii) Employee's willful and repeated
failure to follow directions of the Board of Directors that continues for at
least ten (10) days following written notice of the Board of Directors of such
failure to follow directions, or (iii) termination for cause as defined in and
made pursuant to a then effective employment agreement, if any, between Employee
and PPD.
1.19 "Termination Date" means the date on which Employee's employment
is terminated such that Employee is entitled to the compensation and benefits
provided for in Section 2 of this Agreement.
2. Compensation Upon Change of Control. If during the Covered Period (i)
PPD terminates Employee's employment for reason other than Termination for Cause
or (ii) Employee's employment is terminated by reason of Constructive
Termination, Employee shall be entitled to the following compensation and
benefits:
2.01 Base Salary and Bonus. PPD shall pay Employee an amount equal to
(see Exhibit A) times the sum of Employee's (i) base salary for the First Period
(determined as if Employee was employed for the entire First Period if employed
for less than the First Period) and (ii) the greater of (x) Employee's target
bonus under the PPD incentive cash bonus plan in which Employee is eligible to
participate immediately prior to the Termination Date or (y) the average of the
cash bonuses received in the First Period and in the twelve-month period
immediately preceding the First Period, said amount to be paid on the Payment
Date.
2.02 Unpaid and Deferred Compensation. PPD shall pay Employee any
bonus or deferred compensation (whether in the form of cash, stock or otherwise)
accrued but unpaid as of the Termination Date, said sum to be paid on the
Payment Date.
2.03 Benefits. For a period of (see Exhibit A) after the Termination
Date, PPD shall continue to pay for and provide welfare benefits which Employee
was receiving immediately prior to the Termination Date, including life
insurance, health, medical, dental, vision and wellness, accidental death and
dismemberment and disability benefits; provided, however, that PPD's obligations
under this clause shall terminate from the date that Employee first becomes
eligible after the Termination Date for similar coverage under another
employer's plan.
2.04 Stock Awards. Notwithstanding anything to the contrary in any
agreement for Stock Awards, (i) all unvested shares underlying Stock Awards
granted more than six months prior to the Termination Date shall become fully
vested as of the Termination Date, and (ii) Employee shall continue to be
treated under each award
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agreement evidencing a Stock Award as if Employee was an employee of PPD until
the first to occur of (x) the third anniversary of the Termination Date, or (y)
the expiration of the exercise period provided for therein; provided, however,
in the event of Employee's death or his disability (as disability is defined in
the award agreement) after the Termination Date, the time for exercise after
death or such disability prescribed in the award agreement shall apply. The
provisions of this Section 2.04 shall also apply to any and all substitute
awards for nonqualified stock options and restricted stock granted to Employee
in exchange for Stock Awards to which this section applies.
2.05 Limitation on Payments.
a. Application of Section 2.05. If a Covered Payment hereunder
would be an Excess Parachute Payment and would thereby subject Employee to the
Excise Tax, the provisions of this Section 2.05 shall apply to determine the
amounts payable to Employee pursuant to this Agreement.
b. Calculation of Benefits. At least fifteen (15) days prior
to the Payment Date, PPD shall notify Employee of the aggregate present value of
all amounts and benefits to which Employee would be entitled under this
Agreement and any other plan, program or arrangement with PPD as of the
Termination Date, together with the projected maximum payments, determined as of
such Date of Termination, that could be paid without Employee being subject to
the Excise Tax.
c. Imposition of Payment Cap. If (i) the aggregate value of
all amounts and benefits to which Employee would be entitled under this
Agreement and any other plan, program or arrangement with PPD exceeds the amount
which can be paid to Employee without Employee incurring an Excise Tax and (ii)
Employee would receive a greater net after-tax amount (taking into account all
applicable taxes payable by Employee, including an Excise Tax) by applying the
limitation contained in this Section 2.05(c), then the amounts otherwise payable
to Employee under this Section 2 shall be reduced to an amount equal to the
Payment Cap. If Employee receives reduced payments and benefits hereunder,
Employee shall have the right to designate which of the payments and benefits
otherwise provided for in this Agreement that Employee will receive in
connection with the application of the Payment Cap.
d. Application of Code Section 280G. The Executive Consultant
shall determine whether any part of the Covered Payment will be subject to the
Excise Tax and the amount of such Excise Tax. For purposes of such
determination, the Executive Consultant shall take into consideration and be
guided by the following:
(i) such Covered Payment will be treated as Parachute
Payments and all Parachute Payments in excess of the Base Amount shall be
treated as subject to the Excise Tax, unless and except to the extent that in
the good faith judgment of the Executive Consultant, PPD has a reasonable basis
to conclude that such Covered Payment, in whole or in part, either do not
constitute Parachute Payments or represent
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reasonable compensation for personal services actually rendered (within the
meaning of Section 280G of the Code) in excess of the Base Amount, or such
Parachute Payments are otherwise not subject to the Excise Tax, and
(ii) the value of any noncash benefits or any deferred
payment or benefit shall be determined by the Executive Consultant in accordance
with the principles of Section 280G of the Code.
(e) Applicable Tax Rates. For purposes of determining whether
Employee would receive a greater net after-tax benefit if the amounts payable
under this Agreement are reduced in accordance with Section 2.05(c), Employee
shall be deemed to pay:
(i) federal income taxes at the highest applicable marginal
rate of federal income taxation for the calendar year in which the first amounts
are to be paid hereunder, and
(ii) any applicable state and local income taxes at the
highest applicable marginal rate of taxation for such calendar year, net of the
maximum reduction in federal income taxes which could be obtained from the
deduction of such state or local taxes if paid in such year;
provided, however, that Employee may request that such determination be made
based on Employee's individual tax circumstances, which shall govern such
determination so long as Employee provides to the Executive Consultant such
information and documents as the Executive Consultant shall reasonably request
to determine such individual circumstances.
(f) Adjustments in Respect to Payment Cap.
(i) If Employee receives reduced payments and benefits under
Section 2.05 or if Section 2.05 is determined not to be applicable to Employee
because the Executive Consultant concludes that Employee is not subject to any
Excise Tax, and it is established pursuant to a Final Determination that,
notwithstanding the good faith of Employee and PPD in applying the terms of this
Agreement, the aggregate Parachute Payments paid to Employee or for Employee's
benefit are in an amount that would result in Employee being subject to an
Excise Tax and Employee would still be subject to the Payment Cap under the
provisions of Section 2.05(c), then the amount in excess of the Payment Cap
shall be deemed for all purposes to be a loan to Employee made on the date of
the receipt of such excess payment, which Employee shall have an obligation to
repay to PPD on demand, together with interest at the AFR, from the date of the
payment hereunder to the date of repayment by Employee.
(ii) If Section 2.05 is not applied to reduce Employee's
entitlements under this Section 2 because the Executive Consultant determines
that
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Employee would not receive a greater net after-tax benefit by applying Section
2.05 and it is established pursuant to a Final Determination that,
notwithstanding the good faith of Employee and PPD in applying the terms of this
Agreement, Employee would have received a greater net after-tax benefit by
subjecting Employee's payments and benefits hereunder to the Payment Cap, then
the aggregate Parachute Payments paid to Employee or for Employee's benefit in
excess of the Payment Cap shall be deemed for all purposes a loan to Employee
made on the date of receipt of such excess payments, which Employee shall have
an obligation to repay to PPD on demand, together with interest at the AFR, from
the date of payment hereunder to the date of repayment by Employee.
(iii) If Employee receives reduced payments and benefits by
reason of this Section 2.05 and it is established pursuant to a Final
Determination that Employee could have received a greater amount without
exceeding the Payment Cap, then PPD shall promptly thereafter pay Employee the
aggregate additional amount which could have been paid without exceeding the
Payment Cap, together with interest on such amount at the AFR, from the original
payment due date to the date of actual payment by PPD.
3. Miscellaneous.
3.01 Successor-in-Interest. PPD 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 PPD, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that PPD would be required to perform it if no succession had taken
place.
3.02 Binding Effect. This Agreement shall inure to the
benefit of and be enforceable by Employee's personal or legal representatives,
executives, administrators, successors, heirs, distributees, devisees and
legatees.
3.03 Notice. For purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be given (i) by certified mail, return receipt requested, postage prepaid, (ii)
by personal delivery or (iii) by recognized overnight carrier, and shall be
deemed received when actually received. Notices shall be addressed as follows:
If to PPD: Pharmaceutical Product Development, Inc.
0000 Xxxxx 00/xx/ Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Executive Officer
If to Employee: ________________________________________
________________________________________
________________________________________
________________________________________
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Either party hereto may change the notice address by giving notice thereof in
the manner provided for herein.
3.04 Waiver. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with, any provision or
condition of this Agreement to be performed by such other party shall be deemed
a subsequent waiver of the same or similar provisions or conditions.
3.05 Entire Agreement. No agreements or representations, oral
or otherwise, expressed or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
agreement, and this Agreement supersedes and replaces in its entirety all prior
agreements and representations, expressed, implied, oral or otherwise, made by
PPD to or with Employee, including but not limited to that certain Severance
Agreement dated _______________ between PPD and Employee.
3.06 Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of North Carolina.
3.07 Unenforceability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
3.08 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
3.09 Headings. Headings used in this Agreement are for
convenience only and shall not be used to construe or interpret this Agreement.
3.10 Enforcement by Employee. All legal expenses incurred by
Employee in the successful enforcement of any of the terms of this Agreement
shall be paid by PPD.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the date first hereinabove set forth.
Pharmaceutical Product Development, Inc. Employee
By: _________________________________ ________________________
Name: Name:
Title:
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Exhibit A
Section 2.01 Base Salary &
Employee Bonus Multiplier
Xxxxxxx X. Xxxxxxxx three
Xxxx X. Xxxxxxxxx, Xx. two and one-half
Xxxx X. Xxxxxxxxx two and one-half
Xxxxxxx X. X'Xxxxxx one
Xxxxx X. Xxxxxxxx one
Xxxxx Xxxxxxx one
Xxxxxxxx Xxxx Xxxxxxx one
W. Xxxxxxx Xxxxx one
Xxx X. Xxxxxx one
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