SEVERANCE AGREEMENT FOR OTHER NEW KEY EMPLOYEESTermination Severance Agreement |
|
|
|
You are currently viewing: This Termination Severance Agreement involves
WYETH. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Termination Severance Agreement by:
Exhibit 10.10
SEVERANCE AGREEMENT
FOR OTHER NEW KEY EMPLOYEES
This Severance Agreement (this Agreement) is made as of , by and between WYETH, a Delaware corporation (the Company), and (Executive).
RECITALS
WHEREAS the Board of Directors of the Company (the Board) has approved a severance agreement to provide Executive with certain benefits upon the termination of his employment;
NOW THEREFORE, the parties hereto agree as follows:
1. Term of Agreement. This Agreement shall commence on the date hereof and shall continue in effect through December 31, 2010; provided, however, the term of this Agreement shall automatically be extended for one additional year beyond 2010 and successive one year periods thereafter, unless, not later than September 30, 2008 (for the additional year ending on December 31, 2011) or September 30 of each year thereafter (for each subsequent extension), the Company shall have given notice that it does not wish to extend this Agreement for an additional year, in which event this Agreement shall continue to be effective until the end of its then remaining term; provided, further, that, notwithstanding any such notice by the Company not to extend, if a Change in Control shall have occurred during the original or any extended term of this Agreement, this Agreement shall continue in effect for a period of thirty-six (36) months beyond such Change in Control. Notwithstanding the foregoing, this Agreement shall terminate if Executive ceases to be an employee of the Company and its subsidiaries for any reason prior to a Change in Control which, for these purposes, shall include cessation of such employment as a result of the sale or other disposition of the division, subsidiary or other business unit by which Executive is employed.
2. Change In Control. No benefits shall be payable hereunder unless there shall have been a Change in Control of the Company, as set forth below. For purposes of this Agreement, a Change in Control shall be deemed to have occurred if:
(A) any person or persons acting in concert (excluding Company benefit plans) becomes the beneficial owner of securities of the Company having at least 20% of the voting power of the Companys then outstanding securities (unless the event causing the 20% threshold to be crossed is an acquisition of voting common securities directly from the Company); or
(B) the consummation of any merger or other business combination of the Company, sale or lease of the Companys assets or combination of the foregoing transactions (the Transactions) other than a Transaction immediately following which the shareholders of the Company who owned shares immediately prior to the Transaction (including any trustee or fiduciary of any Company employee benefit plan) own, by virtue of their prior ownership of the Companys shares, at least 65% of the voting
1
power, directly or indirectly, of (a) the surviving corporation in any such merger or other business combination; (b) the purchaser or lessee of the Companys assets; or (c) both the surviving corporation and the purchaser or lessee in the event of any combination of Transactions; or
(C) within any 24 month period, the persons who were directors immediately before the beginning of such period (the Incumbent Directors) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of a successor to the Company. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds (2/3) of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who has expressed an intent to effect a Change in Control or engage in a proxy or other control contest).
3. Termination Following Change In Control. If any of the events described in Section 2 hereof constituting a Change in Control shall have occurred, Executive shall be entitled to the benefits provided in Section 4(iv) hereof upon the subsequent termination of Executives employment with the Company and its subsidiaries during the term of this Agreement unless such termination is (A) a result of Executives death or Retirement (except as provided in Section 3(i) below), (B) by Executive without Good Reason, or (C) by the Company or any of its subsidiaries for Disability or for Cause. In addition, Executive shall be entitled to the compensation provided for in Section 4(iv) hereof payable only upon the occurrence of an event described in Section 2 constituting a Section 409A Change in Control (as if his termination had occurred after the Section 409A Change in Control) if, after an agreement has been signed which, if consummated, would result in a Section 409A Change in Control, (x) Executive is terminated without Cause by the Company or any of its subsidiaries prior to the Section 409A Change in Control, and (y) such termination was at the instigation or request of the party to the agreement seeking to cause the Section 409A Change in Control or is otherwise in connection with the anticipated Section 409A Change in Control. Section 409A Change in Control means a change in control event within the meaning of the regulations under Section 409A(a)(2)(A)(v) of the Code determined in accordance with the uniform methodology and procedures adopted by the Company and in effect on December 31, 2007.
(i) Disability; Retirement. For purposes of this Agreement, Disability shall mean permanent and total disability as such term is defined under Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the Code), without regard to whether Executive is subject to the Code. Any question as to the existence of Executives Disability upon which Executive and the Company cannot agree shall be determined by a qualified independent physician selected by Executive (or, if Executive is unable to make such selection, such selection shall be made by any adult member of Executives immediate family or Executives legal representative), and approved by the Company, said approval not to be unreasonably withheld. The determination of such physician made in writing to the Company and to Executive shall be final and conclusive for all purposes of this Agreement. For purposes of this Agreement, Retirement shall mean Executives voluntary termination of employment with the Company under any of the Companys retirement plans that occurs prior to delivery of a Notice of Termination pursuant to Section 3(iv) below; provided, however, that notwithstanding the foregoing, no Retirement that
2
occurs after any other termination of employment shall adversely affect, interfere with or otherwise impair in any way Executives right to receive the payments and benefits to which he is entitled on account of a termination without Cause or with Good Reason. Accordingly, and for the avoidance of doubt, if Executive provides a Notice of Termination for Good Reason, and otherwise satisfies the conditions for Good Reason pursuant to this Agreement, and also Retires, such Retirement shall not adversely affect, interfere with or otherwise impair in any way his right to receive payments and benefits hereunder. Conversely, if Executive terminates his employment on account of Retirement and at such time is not (x) terminating his employment for Good Reason pursuant to this Agreement or (y) being terminated by the Company without Cause pursuant to this Agreement, he shall not be entitled to the payments and benefits provided in this Agreement.
(ii) Cause. For purposes of this Agreement, Cause shall mean (A) the conviction of, or plea of guilty or nolo contendere to, a felony or (B) the willful engaging by an Executive in gross misconduct which is materially and demonstrably injurious to the Company.
(iii) Good Reason. Executive shall be entitled to terminate employment with Good Reason. For the purpose of this Agreement, Good Reason shall mean the occurrence, without Executives express written consent, of any of the following circumstances unless, in the case of Sections 3(iii) (A), (D), (E), or (F), such circumstances are fully corrected prior to the date specified as the Date of Termination (as defined in Section 3(v)) in the Notice of Termination (as defined in Section 3(iv)) given in respect thereof:
(A) the assignment to Executive of any duties inconsistent with Executives status as an executive of the Company or its subsidiaries, Executives removal from his or her position (as it existed immediately prior to the Change in Control), or a substantial diminution in the nature or status of Executives responsibilities from those in effect immediately prior to the Change in Control; provided, however, that solely with respect to the events or circumstances provided in this Section 3(iii)(A), Executive must provide the Notice of Termination not later than 180 days following the date he or she had actual knowledge of the event constituting Good Reason;
(B) a reduction by the Company or any of its subsidiaries in Executives annual base salary as in effect on the date hereof or as the same may be increased from time to time;
(C) the relocation of Executives place of business to a location that increases Executives commute by more than thirty-five (35) miles compared to Executives commute as in effect immediately prior to the Change in Control;
(D) the failure by the Company to pay to Executive any portion of any installment of deferred compensation under any deferred compensation program of the Company in which Executive participated within seven (7) days of the date such compensation is due;
(E) the failure by the Company or any of its subsidiaries to continue in effect any incentive compensation plan including without limitation any cash or equity-based
3
compensation plan or program, in which Executive participated prior to the Change in Control, unless an equitable alternative compensation arrangement (embodied in an ongoing substitute or alternative plan) has been provided for Executive, or the failure by the Company or any of its subsidiaries to continue Executives participation in any such incentive plan on a basis, both in terms of the amount of benefits provided as a percentage of Executives base salary and the level of Executives participation relative to other participants (as a comparison of the potential percentage of base salary relative to the percentage of base salary for other executives at the same or similar levels), that is no less than the opportunity to earn a percentage of Executives base salary as existed at any time during the three (3) years prior to the Change in Control;
(F) except as required by law, the failure by the Company or any of its subsidiaries to continue to provide Executive with benefits, in the aggregate, at least as favorable (excluding changes to such benefits that occur in the ordinary course are of general application, and that increase co-payments, deductibles or premiums, which must be paid by Executive) as those enjoyed by Executive under the employee benefit and welfare plans of the Company and its subsidiaries, including, without limitation, the pension, life insurance, medical, dental, health and accident, retiree medical, disability, deferred compensation and savings plans, in which Executive was participating at the time of the Change in Control, or the failure by the Company or any of its subsidiaries to provide Executive with the number of paid vacation days to which Executive was entitled at the time of the Change in Control;
(G) the failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform this Agreement, as contemplated in Section 6 hereof; or
(H) any purported termination of Executives employment by the Company or its subsidiaries which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3(iv) below; for purposes of this Agreement, no such purported termination shall be effective.
Subject to Section 3(iii)(A), Executives continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstances constituting Good Reason hereunder. For purposes of valuing the amount of benefits provided under any equity-based compensation plan or program, policy, or arrangement under Section 3(iii)(E) above, the Black-Scholes value on the date of grant of any such equity-based award shall be utilized; provided, however, that the Black-Scholes value of any grant on a per option share basis shall be equal to the per option share value of a grant, if any, made on the same date as such grant and reported in the Companys proxy statement filed prior to a Change in Control and all determinations of the Black-Scholes value of other grants shall be made by a nationally recognized compensation consulting firm chosen by the Company using the methodology and assumptions consistent with those used for purposes of the Companys latest proxy statement filed prior to the Change in Control (or to the extent applicable, as reported in the proxy statement, if any, of the company that effected the Change in Control).
4
(iv) Notice of Termination. Any purported termination of Executives employment by the Company and its subsidiaries or by Executive shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 7 hereof. For purposes of this Agreement, a Notice of Termination shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail (other than with respect to a Good Reason termination pursuant to Section 3(iii)(H)) the facts and circumstances claimed to provide a basis for termination of Executives employment under the provision so indicated.
(v) Date of Termination. Date of Termination shall mean (A) if Executives employment is terminated for Disability, thirty (30) days after Notice of Termination is given (provided that Executive shall not have returned to the full-time performance of Executives duties during such thirty (30) day period), and (B) if Executives employment is terminated pursuant to Section 3(ii) or (iii) above or for any reason (other than Disability), the date specified in the Notice of Termination (which, in the case of a termination pursuant to Section 3(ii) above shall not be less than thirty (30) days, and in the case of a termination pursuant to Section 3(iii) above shall not be less than thirty (30) nor more than sixty (60) days, respectively, from the date such Notice of Termination is given); provided, that, if within thirty (30) days after any Notice of Termination is given the party receiving such Notice of Termination notifies the other party that a dispute exists concerning the grounds for termination, the Date of Termination shall be the date on which the dispute is finally determined, either by mutual written agreement of the parties, by a binding arbitration award or by a final judgment, order or decree of a court of competent jurisdiction (which is not appealable or the time for appeal therefrom having expired and no appeal having been perfected); provided, further, that the Date of Termination shall be extended by a notice of dispute only if such notice is given in good faith and the party giving such notice pursues the resolution of such dispute with reasonable diligence. Notwithstanding the pendency of any such dispute, the Company and its subsidiaries will continue to pay Executives full compensation in effect when the notice giving rise to the dispute was given (including, but not limited to, base salary and bonus) and continue Executive as a participant in all incentive compensation, benefit and insurance plans in which Executive was participating when the notice giving rise to the dispute was given, until the dispute is finally resolved in accordance with this Section 3(v). Amounts paid under this Section 3(v) are in addition to all other amounts due under this Agreement and shall not be offset against or reduce any other amounts due under this Agreement. In the event that the Company is terminating Executive the Company may, if it so chooses, pay Executive the base salary which he would have received in lieu of waiting for the expiration of any notice period otherwise required hereby and bar Executive from any of the Companys premises, offices or properties, subject to any rights set forth herein for Executive to contest such termination.
4. Compensation Upon Termination Or During Disability. Following a Change in Control of the Company, as defined by Section 2, upon termination of Executives employment or during a period of Disability, which, in either event, occurs during the term of this Agreement, Executive shall be entitled to the following benefits:
(i) During any period that Executive fails to perform Executives full-time duties with the Company and its subsidiaries as a result of the Disability, Executive shall continue to receive an amount equal to Executives base salary at the rate in effect at the
5
commencement of any such period, and Bonus, through the Date of Termination for Disability; provided, however, that if any such period of Disability ends during the term of this Agreement, Executive shall have the right to resume active employment with the Company immediately following the end of such period of Disability, unless, prior to the end of such period of Disability, the Company has terminated Executives employment. Thereafter, Executives benefits shall be determined in accordance with the employee benefit programs of the Company and its subsidiaries then in effect.
(ii) If Executives employment shall be terminated by the Company or any of its subsidiaries for Cause or by Executive without Good Reason (excluding death, Disability or Retirement) the Company (or one of its subsidiaries, if applicable) shall pay through the Date of Termination Executives full base salary at the rate in effect at the time Notice of Termination is given and shall pay any amounts otherwise payable to Executive on or immediately prior to the Date of Termination pursuant to any other compensation plans, programs or employment agreements then in effect, and the Company shall have no further obligations to Executive under this Agreement.
(iii) If Executives employment shall be terminated by reason of Executives death or Retirement, Executives benefits shall be determined in accordance with the retirement and other benefit programs of the Company and its subsidiaries then in effect, except as otherwise provided in Section 3(i).
(iv) If Executives employment by the Company and its subsidiaries shall be terminated (other than for death or Disability) by (a) the Company and its subsidiaries other than for Cause or (b) Executive with Good Reason, then Executive shall be entitled to the benefits provided below:
(A) The Company (or one of its subsidiaries, if applicable) shall pay Executives full base salary, at the rate in effect at the time of the Change in Control and increased to reflect any subsequent increases in such base salary (the Base Salary), and a pro-rated Bonus calculated through the Date of Termination, no later than the thirtieth day following the Date of Termination, plus all other amounts to which Executive is entitled under any compensation plan of the Company applicable to Executive, at the time such payments are due. For purposes of this Agreement, the Bonus shall mean the highest three (3) years average annual cash bonus paid (or awarded, if different) in respect of each of the five (5) prior bonus years (exclusive of any special or prorated bonuses). If Executive has less than three (3) years of bonus history, Bonus shall mean the average annual bonus of the actual years; provided, however, that if Executive has not had an opportunity to earn or be awarded one (1) full years bonus as of his Date of Termination, Bonus shall mean, with respect to the year of his Date of Termination: (x) if Executives Bonus was to be computed on a discretionary basis, 80% of Base Salary; or (y) if Executives Bonus was to be computed pursuant to the payment grid under the Performance Incentive Award Program (or any successor thereto), the amount Executive would have been paid under such program, assuming Executive had attained the highest performance ranking thereunder.
6
(B) The Company shall pay Executive, on the sixty-fifth day following the Separation from Service Date (as defined in Section 4(v) below), as severance pay to Executive a severance payment equal to two (2) times the sum of (i) Executives Base Salary, and (ii) Bonus.
(C) The Company shall also pay to Executive, no less frequently than monthly, all legal fees and expenses reasonably incurred by Executive in connection with this Agreement (including all such fees and expenses, if any, incurred in contesting or disputing the nature of any such termination for purposes of this Agreement or in seeking to obtain or enforce any right or benefit provided by this Agreement); provided, however, that if a determination is made by the arbitrator selected under Section 11 hereof that Executive acted in a frivolous manner in contesting or disputing such termination or seeking to obtain or enforce such right or benefit, the Company shall not be liable to pay such legal fees or expenses otherwise provided for thereunder and the Company shall be entitled to recover from Executive any such amounts so paid (either directly or, except as would violate the requirements of Section 409A(a)(3) of the Code, by setoff against any amounts then owed Executive by the Company). Notwithstanding the penultimate sentence of Section 8, no reimbursement pursuant to this Section 4(iv)(C) shall be paid later than the last day of the tenth (10th) calendar year following the calendar year in which the applicable statute of limitations for breach of contract claims expires or, if later, the last day of the calendar year following the calendar year in which there is a settlement or other final and nonappealable resolution of the related contest or dispute.






