Exhibit 10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”), made this 1st day of March 2007, is
entered into by Sepracor Inc., a Delaware corporation with its
principal place of business at 84 Waterford Drive, Marlborough,
Massachusetts 01752-7231(the “Company”), and Adrian
Adams, residing at
(the
“Executive”).
The Company desires to employ the
Executive and the Executive desires to be employed by the
Company. In consideration of the mutual covenants and
promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties agree as
follows:
1.
Term of
Employment . The Company hereby
agrees to employ the Executive and the Executive hereby accepts
employment with the Company, upon the terms set forth in this
Agreement, for the period commencing on March 1, 2007 (the
“Commencement Date”) and ending on March 1, 2012
(the “Term”) . Notwithstanding the
foregoing, the Term shall be extended automatically without further
action by either party by one (1) additional year (added to the end
of the Term) on each succeeding anniversary of March 1, 2012,
unless either party shall have served written notice upon the other
party at least sixty (60) days preceding the date upon which such
Term would end (such period, as it may be extended, the
“Employment Period”), unless sooner terminated in
accordance with the provisions of Section 4.
2.
Title and
Capacity . The Executive shall
initially serve as President and Chief Operating Officer of the
Company and in that capacity Executive shall report directly to the
Chief Executive Officer of the Company and shall, except as
permitted
hereby, devote
all of his business time and services to the business and affairs
of the Company. The Company acknowledges that it is the
present expectation of the Board and the parties hereto that
Executive will be elected to the position of Chief Executive
Officer within six months of the Commencement Date. At such
time as the Executive is elected to the position of Chief Executive
Officer, he shall report directly to the Board and shall assume the
duties and responsibilities inherent in such position and such
other duties and responsibilities as the Board shall from time to
time reasonably assign to him.
Executive shall also perform such
other duties consistent with his position at such time as may be
reasonably assigned by the Chief Executive Officer (if Executive
does not then hold such position) and/or the Board of Directors of
the Company (the “Board”) from time to time.
Executive shall serve on the Board and may also serve as a director
or officer of any of the Company’s operating subsidiaries if
the Executive shall be elected to such position, for no additional
compensation or benefits. The Executive hereby accepts such
service and agrees to undertake the duties and responsibilities
inherent in such positions. The Executive agrees to abide by
the rules, regulations, instructions, personnel practices and
policies of the Company and any changes therein that may be adopted
from time to time by the Company.
Notwithstanding anything herein to
the contrary, Executive shall be entitled to engage in (a) service
on the board of directors of a no more than three other companies,
businesses or trade organizations, provided , that ,
the Executive shall provide the Company prior written notice of his
intention to join any such board and provided further
that he shall not serve on the board of any entity that competes
with the Company, (b) service on the board of directors of
not-for-profit or charitable organizations, (c) other
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charitable activities and community
affairs and (d) managing his personal investments and affairs, in
each case to the extent such activities do not materially interfere
with the performance of his duties and responsibilities to the
Company.
3.
Compensation
and Benefits .
3.1
Salary
. During
the term of this Agreement, the Company agrees to pay to the
Executive a base salary at the annualized rate of $800,000
(“Base Salary”) commencing on the Commencement
Date. The Base Salary shall be subject to annual review by
the Board but shall not be reduced below $800,000 per annum.
Such salary shall be payable to Executive in bi-weekly installments
and in accordance with the Company’s normal payroll
procedures.
3.2
Bonus . The Executive shall
be eligible for a performance-based annual bonus for each fiscal
year of the Term (the “Annual Bonus”). The Annual
Bonus shall be based upon annual quantitative and qualitative
performance targets as established by the Board in its sole
discretion in accordance with the Company’s bonus plan;
provided , that the Executive’s annual bonus level
target shall be set at one hundred percent (100%) of Base
Salary. For fiscal year 2007, the Executive shall be entitled
to a pro rata guaranteed bonus based on an Annual Bonus of one
hundred percent (100%) of his Base Salary. The Annual Bonus is not
earned until the close of business on the last business day of the
Company’s fiscal year. Any Annual Bonus payable
hereunder shall be payable, if at all, after the date of the
delivery of the audited financial statements for the applicable
fiscal year.
3.3
Stock and
Option Grant . At the first meeting
of the Compensation Committee of the Board of Directors following
the Executive’s first day of employment,
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the Company shall
grant to the Executive, under the Company’s 2000 Stock
Incentive Plan (the “Stock Plan”), 125,000 shares of
restricted stock and an option to purchase 500,000 shares of
Company stock (the “Initial Grant”). The terms
and conditions of the Initial Grant (other than the exercise price
per share, which shall be equal to the closing price of the
Company’s stock on the grant date) shall be set forth in the
award agreements attached hereto as Schedules A and B. The
stock option portion of the Initial Grant shall vest in five equal
installments on each of the first five anniversaries of the grant
date, and the restricted stock award portion of the Initial Grant
shall vest in three equal installments on each of the first three
anniversaries of the grant date. The Board, in its sole
discretion, may grant further incentive compensation awards to the
Executive from time to time. The Company represents and
warrants to Executive that the Company has full power and
authority, subject to Compensation Committee approval, and shares
available under the Stock Plan to make the Initial
Grant.
3.4
Benefits
. The
Executive shall be entitled to participate in all bonus and benefit
programs that the Company establishes and makes available to its
employees, to the extent that the Executive is eligible under (and
subject to the provisions of) the plan documents governing those
programs. The Executive shall be entitled to four (4) weeks
paid vacation per year, accruing at a rate of 1.67 days per month
during the Employment Period and to be taken at such times as may
be reasonably determined by Executive consistent with his
duties.
3.5
Reimbursement
of Expenses . The Company shall
reimburse the Executive for all reasonable travel (which shall be
deemed to include first class airfare or reimbursement or
equivalent to a first class airfare ticket in the event Executive
uses his
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personal
time-share aircraft), entertainment and other expenses incurred or
paid by the Executive in connection with, or related to, the
performance of his duties, responsibilities or services under this
Agreement or in connection with Executive’s commuting to and
from his personal residence in the Philadelphia area and the
Company’s offices, upon presentation by the Executive of
documentation, expense statements, vouchers and/or such other
supporting information as the Company may request.
3.6
Housing
Expenses . The Company
understands that the Executive intends to maintain his primary
residence outside the Massachusetts area. The Company agrees
to provide the Executive with a housing allowance for reasonable
housing and living expenses of $5,600 per month, related to the
rental or purchase of a home, within suitable distance to the
Company’s headquarters, which payment shall be made on a
fully tax grossed-up basis. The Company also will reimburse
the Executive for (i) reasonable travel, meals and lodging expenses
incurred by him for up to two trips for the purpose of securing
such house or apartment within a suitable distance to the
Company’s headquarters and (ii) reasonable moving expenses in
relocating his belongings from his residence in Florida to such
house or apartment.
3.7
Executive’s Legal
Fees. The Company agrees to
pay the Executive’s reasonable legal costs and expenses in
connection with negotiating and drafting this Agreement up to a
maximum of $15,000.
3.8
Automobile.
The
Company agrees to provide the Executive with an automobile
allowance or a leased automobile with a retail value of up to
$75,000, which payments shall be made on a fully tax grossed-up
basis. In addition, the Company
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agrees to pay all
insurance, maintenance, fuel and other customary costs associated
with operating the automobile.
3.9
Withholding
. All
salary, bonus and other compensation payable to the Executive shall
be subject to applicable withholding taxes.
4.
Employment
Termination . This Agreement and
the employment of the Executive under this Agreement shall
terminate upon the occurrence of any of the following:
4.1
At the election
of the Executive if the Company fails to name him Chief Executive
Officer of the Company within six (6) months from the Commencement
Date, on the date of such election.
4.2
On the expiration
date of the Employment Period.
4.3
At the election
of the Company, for Cause (as defined below), immediately upon
written notice by the Company to the Executive, which notice shall
identify the Cause upon which termination is based. For the
purposes of this Section 4.3, Cause for termination shall
mean: (a) the Executive’s willful and continued failure
to substantially perform his reasonable assigned duties (other than
any such failure resulting from incapacity due to physical or
mental illness or any failure after the Executive gives notice of
termination for Good Reason and Good Reason exists), which failure
is not cured within 30 days after a written demand for substantial
performance is received by the Executive from the Board of
Directors of the Company which specifically identifies the manner
in which the Board of Directors believes the Executive has not
substantially performed the Executive’s duties; (b) the
Executive’s willful engagement in illegal conduct or gross
misconduct which is materially and demonstrably injurious to
the
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Company; or (c) a
material breach of Section 6 or 7 this Agreement by the
Executive. For purposes of this Section 4.3, no act or
failure to act by the Executive shall be considered
“willful” unless it is done, or omitted to be done, in
bad faith and without reasonable belief that the Executive’s
action or omission was in the best interests of the
Company.
4.4
Upon the death or
disability of the Executive. As used in this Agreement, the
term “disability” shall mean the Executive’s
absence from the full-time performance of the Executive’s
duties with the Company for one hundred eighty (180) consecutive
calendar days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to
the Executive or the Executive’s legal
representative.
4.5
At the election
of the Executive for Good Reason as defined herein. The
Executive may terminate his employment for Good Reason at any time,
following 30-days prior written notice of such termination to the
Company. Such notice shall provide factual details of the
basis behind such termination and the Company shall have a thirty
(30) day period thereafter to cure such matter. As used
herein, the term “Good Reason” shall mean: (a) a
material breach by the Company of the terms of this Agreement,
including the failure to pay Base Salary or any Annual Bonus when
due; or (b) any material adverse change by the Company in
Executive’s titles, authorities, duties, responsibilities or
lines of reporting inconsistent with the terms hereof or the
assignment to Executive by the Company of titles, authorities,
duties, responsibilities or lines of reporting inconsistent with
the terms hereof, or (c) a relocation of the principal offices
of
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the Company to an
area more than forty (40) miles from the location of such offices
as of the date hereof.
4.6
At the election
of the Executive without Good Reason, upon not less than sixty (60)
calendar days prior written notice of termination by the Executive
to the Company; provided , however , that the Company
may, in its sole discretion, determine that the termination of the
Executive shall become effective immediately and in which case the
termination shall still be considered at the election of the
Executive without Good Reason.
4.7
At the election
of the Company, without Cause, upon not less than sixty (60) days
written notice to Executive.
4.8
At the election
of the Company or the Executive in connection with a Change in
Control of the Company as set forth in the Executive Retention
Agreement between the Company and the Executive (the
“ERA”), dated as of the date hereof. For purposes
of this Agreement, “Change in Control” shall have the
meaning set forth in the ERA.
5.
Effect of
Termination .
5.1
Termination
For Failing To Name Executive CEO . In the event the
Company fails to name Executive to the position of Chief Executive
Officer of the Company within six (6) months from the Commencement
Date, and he elects to terminate his employment, provided the
Executive executes and does not revoke a Separation Agreement and
Release of Claims for the benefit of the Company substantially in
the form set forth on Schedule C hereto (the “Separation
Agreement”), the Company shall pay or cause to be paid to
Executive, within thirty (30) days of the
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date of his
termination: (1) a lump-sum payment of two million dollars
($2,000,000); and (2) the amount of any accrued but unpaid Base
Salary, unused vacation and unreimbursed business, housing and
automobile expenses and the Company thereafter shall have no
further obligation to Executive under this Agreement, other than
for payment of any other amounts or benefits accrued and vested
under any applicable benefit plan or otherwise in accordance with
applicable law.
5.2
Non-Renewal,
Termination Without Good Reason By the Executive or Termination For
Cause By the Company . In the event the
Executive’s employment is terminated by non-renewal pursuant
to Section 4.2, for Cause by the Company pursuant to Section 4.3,
or at the election of the Executive pursuant to Section 4.6, the
Company shall pay to the Executive the compensation and benefits
otherwise payable to him under Section 3 through the last calendar
day of his actual employment by the Company.
5.3
Termination
for Death or Disability . In the event the
Executive’s employment is terminated by death or because of
disability pursuant to Section 4.4, the Company shall pay to the
estate of the Executive or to the Executive, as the case may be,
(A) within thirty (30) days of the date of the Executive’s
death or determination of disability, the compensation which would
otherwise be payable to the Executive up to the end of the month in
which the termination of his employment because of death or
disability occurs; and (B) an annual bonus in an amount equal to
the total bonus he would be paid for such year, if any, multiplied
by a fraction, the numerator of which is the number of days in the
year that have elapsed since January 1 and the denominator of which
is 365, payable when bonuses are paid for that year (a “Pro
Rata Bonus”). In
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addition, the
Company shall permit Executive or Executive’s estate or
representative to exercise the vested stock option portion of the
Initial Grant for a period of no less than one year after any such
termination of employment.
5.4
Termination By
the Executive With Good Reason or By the Company Without
“Cause” . In the event the
Executive’s employment is terminated by the Executive with
Good Reason pursuant to Section 4.5 or by the Company without Cause
pursuant to Section 4.7, the Company shall pay to the Executive the
compensation and benefits otherwise payable to him under Section 3
through the last calendar day of his actual employment by the
Company. In addition, provided the Executive executes and
does not revoke the Separation Agreement, the Company shall: (1)
continue to pay the Executive the Base Salary for twenty-four (24)
months in accordance with the Company’s regular payroll
practices; (2) pay the Executive a Pro Rata Bonus; (3) pay the
Executive, in bi-weekly installments, over a twenty-four month
period, an amount equal in the aggregate to two (2) times the
average Annual Bonus earned for the two years prior to the date of
his termination (in the event Executive has not been employed for a
sufficient period to earn two such bonuses, such calculation shall
be made assuming Executive earned a bonus for any such year at a
target level of performance (taking into account any minimum bonus
amount)); (4) provide to the Executive for two (2) years following
the date of his termination, payment of COBRA premiums for medical,
dental, and vision benefits pursuant to plans maintained by the
Company under which Executive and/or Executive’s family is
eligible to receive benefits; provided, however, that,
notwithstanding the foregoing, the benefits described in this
subsection may be discontinued prior the end of the period, but
only to the extent, that Executive receives
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substantially
similar benefits from a subsequent employer; and (5) permit
Executive to exercise the stock option portion of the Initial Grant
for a period of no less than six months after the date of
termination.
5.5
Termination
Following a Change in Control . In the event the
Executive’s employment is terminated pursuant to Section 4.8
by the Company or by the Executive within 24 months following the
Change in Control Date, as defined in the ERA, the Executive will
be entitled to the benefits set forth in the ERA in accordance with
the terms of the ERA.
5.6
Six Month
Delay . If any payment,
compensation or other benefit provided to the Executive in
connection with his employment termination is determined, in whole
or in part, to constitute “nonqualified deferred
compensation” within the meaning of Section 409A and the
Executive is a specified employee as defined in Section
409A(a)(2)(B)(i), no part of such payments shall be paid before the
day that is six (6) months plus one (1) day after the date of his
termination (the “New Payment Date”). In the case
of welfare benefit continuation, the Company shall use its best
efforts to enable Executive to obtain such benefits at
Executive’s expense prior to the New Payment Date. The
aggregate of any payments that otherwise would have been paid to
the Executive (or on Executive’s behalf) during the period
between the date of his termination and the New Payment Date shall
be paid to the Executive in a lump sum on such New Payment
Date. Thereafter, any payments that remain outstanding as of
the day immediately following the New Payment Date shall be paid
without delay over the time period originally scheduled, in
accordance with the terms of this Agreement.
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6.
Non-Competition and
Non-Solicitation .
(a)
While the
Executive is employed by the Company and for a period of twelve
(12) months following the Executive’s termination or
cessation of such employment for any reason, the Executive will not
directly or indirectly:
(i)
Engage in any
business or enterprise (whether as an owner, partner, officer,
employee, director, investor, lender, consultant, independent
contractor or otherwise, except as the holder of not more than 5%
of the combined voting power of the outstanding stock of a publicly
held company) that (A) is competitive with the Company’s
business and (B) develops, designs, produces, markets, sells
or renders any product or service competitive with any product or
service developed, produced, marketed, sold or rendered by the
Company while the Executive was employed by the
Company;
(ii)
Either alone or
in association with others, recruit or solicit any person who was
employed by the Company at any time during the period of the
Executive’s employment with the Company, except for an
individual whose employment with the Company has been terminated
for a period of six months or longer; and
(iii)
Either alone or
in association with others, solicit, divert or take away, or
attempt to divert or take away, the business or patronage of any of
the clients, customers or accounts, or prospective clients,
customers or accounts, of the Company which were contacted,
solicited or served by the Executive while he was employed by the
Company.
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(b)
If any
restriction set forth in this Section 6 is found by any court of
competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities
or in too broad a geographic area, it shall be interpreted to
extend only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
(c)
The Executive
acknowledges that the restrictions contained in this Agreement are
necessary for the protection of the business and goodwill of the
Company and are considered by the Executive to be reasonable for
such purpose. The Executive agrees that any material breach
of this Agreement will cause the Company substantial and
irrevocable damage and therefore, in the event of any such material
breach, in addition to such other remedies which may be available,
the Company shall have the right to seek specific performance and
injunctive relief without posting a bond.
(d)
The geographic
scope of this Section shall extend to anywhere the Company or any
of its subsidiaries is doing business during the Term or has plans,
during the Term, to do business.
(e)
The Executive
agrees to provide a copy of this Agreement to all person and
Entities with whom the Executive seeks to be hired or do business
before accepting employment or engagement with any of
them.
(f)
If the Executive
violates the provisions of this Section, the Executive shall
continue to be held by the restrictions set forth in this Section,
until a period equal to the period of restriction has expired
without any violation.
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7.
Proprietary
Information and Developments .
7.1
Proprietary
Information .
(a)
The Executive
agrees that all information, whether or not in writing, of a
private, secret or confidential nature concerning the
Company’s business, business relationships or financial
affairs (collectively, “Proprietary Information”) is
and shall be the exclusive property of the Company. By way of
illustration, but not limitation, Proprietary Information may
include discoveries, inventions, products, product improvements,
product enhancements, processes, methods, techniques, formulas,
compositions, compounds, negotiation strategies and positions,
projects, developments, plans (including business and marketing
plans), research data, clinical data, financial data (including
sales, costs, profits and pricing methods), personnel data,
computer programs (including software used pursuant to a license
agreement), customer and supplier lists, and contacts at or
knowledge of customers or prospective customers of the
Company. Except as required by applicable law, the Executive
will not disclose any Proprietary Information to any person or
entity other than employees of the Company or use the same for any
purposes (other than in the performance of his duties as an
employee of the Company) without prior written approval from the
Board of Directors or a designee of the Board of Directors, either
during or after his employment with the Company, unless and until
such Proprietary Information has become public knowledge without
fault by the Executive.
(b)
The Executive
agrees that all files, documents, letters, memoranda, reports,
records, data, sketches, drawings, methods, laboratory notebooks,
program listings, computer equipment or devices, computer programs
or other written,
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photographic, or
other tangible material containing Proprietary Information, whether
created by the Executive or others, which shall come into his
custody or possession, shall be and are the exclusive property of
the Company and are to be used by the Executive only in the
performance of his duties for the Company. All such materials
or copies thereof and all tangible property of the Company in the
custody or possession of the Executive shall be delivered to the
Company upon the earlier of (i) a request by the Company or
(ii) termination of his employment. After such delivery,
the Executive shall not retain any such materials or copies thereof
or any such tangible property.
(c)
The Executive
agrees that his obligation not to disclose or to use information
and materials of the types set forth in subsections (a) and (b)
above, and his obligation to return materials and tangible property
set forth in subsection (b) above, also extends to such types of
information, materials and tangible property of customers of the
Company or suppliers to the Company or other third parties who may
have disclosed or entrusted the same to the Company or to the
Executive.
7.2
Developments.
(a)
The Executive
will make full and prompt disclosure to the Company of all
inventions, creations, improvements, discoveries, trade secrets,
secret processes, technology, know-how, copyrightable materials,
methods, developments, software, and works of authorship or other
creative works, whether patentable or not, which are created, made,
conceived or reduced to practice by him or under his direction or
jointly with others during his employment by the Company, whether
or not during normal working hours or on the premises of the
Company (all of which are collectively referred to in this
Agreement as “Developments”).
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(b)
The Executive
agrees to assign and does hereby assign to the Company (or any
person or entity designated by the Company) all his right, title
and interest in and to all Developments and all related patents,
patent applications, copyrights and copyright
applications. However, this subsection (b) shall not
apply to Developments that do not relate to any business or
research and development conducted or planned to be conducted by
the Company at the time such Development is created, made,
conceived or reduced to practice and that are made and conceived by
the Executive not during normal working hours, not on the
Company’s premises and not using the Company’s tools,
devices, equipment or Proprietary Information. The Executive
understands that, to the extent this Agreement shall be construed
in accordance with the laws of any state that precludes a
requirement in an employee agreement to assign certain classes of
inventions made by an employee, this subsection (b) shall be
interpreted not to apply to any invention that a court rules and/or
the Company agrees falls within such classes. The Executive
also hereby waives all claims to moral rights in any
Developments.
(c)
The Executive
agrees to cooperate fully with the Company and to take such further
actions as may be necessary or desirable, both during and after his
employment with the Company, with respect to the procurement,
maintenance and enforcement of copyrights, patents and other
intellectual property rights (both in the United States and foreign
countries) relating to Developments. The Executive shall sign
all papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments,
assignments of priority rights and powers of attorney, that the
Company may deem necessary or desirable in order to protect its
rights
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and interests in
any Development. The Executive further agrees that if the
Company is unable, after re
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