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SEVERANCE AGREEMENT - SENIOR VICE PRESIDENT

Termination Severance Agreement

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WARNER CHILCOTT (US), INC | Warner Chilcott, Inc

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Title: SEVERANCE AGREEMENT - SENIOR VICE PRESIDENT
Governing Law: New Jersey     Date: 7/18/2005

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Severance Agreement, dated as of March 28, 2005 (Herman Ellman)

Exhibit 10.29

 

EXECUTION COPY

 

SEVERANCE AGREEMENT – SENIOR VICE PRESIDENT

 

THIS SEVERANCE AGREEMENT (the “Agreement”) is made as of March 28, 2005, between WARNER CHILCOTT (US), INC. (formerly named Warner Chilcott, Inc.) (the “Company”) and Herman Ellman (“Executive”).

 

RECITALS

 

WHEREAS, Executive and the Company are currently parties to that certain Employment Agreement between Executive and the Company, dated as of May 20, 2002 (the “Prior Agreement”); and

 

WHEREAS, Executive and the Company now desire to enter into this Agreement, which will replace and supersede the Prior Agreement in its entirety, and set forth terms and conditions pursuant to which Executive may be entitled to certain severance payments, as well as set forth certain covenants of Executive.

 

NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Termination of Prior Agreement; Terms of Employment

 

(a) Executive shall be employed by the Company on an “at-will” basis and will have the title of Senior Vice President, Clinical Development, for the Company’s ultimate parent company, Warner Chilcott Holdings Company, Limited, an exempt Bermuda limited company (“Warner Chilcott”). Executive shall have authority, duties and responsibilities as are commensurate with Executive’s position. Executive agrees to render full time services in performing such duties and responsibilities.

 

(b) Executive shall perform substantially all of his duties under this Agreement at the Company’s Rockaway, New Jersey office, provided, however, that the Executive may be required to perform incidental services outside the United States from time to time. Executive may from time to time be required to perform duties commensurate with his position on behalf of one or more of the Group Companies in addition to the duties described in Section 1(a), and Executive may be appointed as an officer or officers of one or more Group Companies in addition to the title described in Section 1(a). Such duties shall be performed, and such appointments accepted, by Executive without additional compensation or remuneration. For the purposes of this Agreement, “Group Company” means Warner Chilcott and any of its direct or indirect subsidiaries.

 

(c) Executive agrees to render the services described above to the best of his abilities in a diligent, trustworthy, businesslike and efficient manner. It shall not be a violation of this Agreement for Executive to serve on civic or charitable boards or committees so long as such activities do not significantly interfere with Executive’s commitment to work in accordance with this Agreement. With the prior written consent of Warner Chilcott’s Board of Directors (the “Board”), which consent shall not be unreasonably refused or delayed, and so long as such

 


activities do not significantly interfere with Executive’s commitment to work in accordance with this Agreement, Executive may serve on corporate boards or committees.

 

(d) The Company shall reimburse Executive for all reasonable expenses incurred by him in the course of performing his duties under this Agreement which are consistent with the Company’s policies in effect from time to time with respect to travel, entertainment and other business expenses. The parties agree that such expenses shall include, by way of example and not limitation, cellular telephone service and home fax machine and telephone line.

 

(e) In consideration of the foregoing agreements and the covenants and other agreements of Executive contained herein, Executive shall be entitled to receive, upon the terms set forth herein, the payments provided for in Section 2 hereof.

 

2. Severance.

 

(a) If Executive shall die while still employed by the Company, this Agreement shall terminate effective as of the date of Executive’s death, except that Executive’s surviving spouse or dependents or, if none, his estate, shall be entitled to receive the payments set forth in Section 2(d) below paid in the manner set forth in Section 2(d).

 

(b) If Executive’s employment is terminated by the Company, in the sole discretion of the Board, because Executive is at such time Disabled (as defined below) and shall have been absent from his duties hereunder on a full time basis for 180 consecutive days, and, within 30 days after written notice by the Company to do so, Executive shall not have returned to the performance of his duties hereunder on a full time basis, Executive shall be entitled to receive (so long as he executes and delivers the Company’s standard form of release) an amount equal to the amount specified in Section 2(d) paid in the manner set forth in Section 2(d). As used herein, the term “Disabled” shall (i) mean that Executive is unable, as a result of a medically determinable physical or mental impairment, to perform the duties and services of his position, or (ii) have the meaning specified in any disability insurance policy maintained by the Company, whichever is more favorable to Executive.

 

(c) If Executive’s employment is terminated by the Company for Cause (as defined below), then the Company shall pay to Executive (x) his then current annual base salary (“Base Salary”) accrued through the effective date of termination, payable at the time such payment is otherwise due and payable and (y) all other amounts and benefits to which Executive is entitled, including, without limitation, vacation pay and expense reimbursement amounts accrued to the effective date of termination and amounts and benefits owing under the terms of any benefit plan of any Group Company in which Executive participates and Executive shall not be entitled to any severance payments. As used herein, “Cause” shall mean (i) the conviction of Executive of a felony (other than a violation of a motor vehicle or moving violation law) or conviction of a misdemeanor if such misdemeanor involves moral turpitude; or (ii) Executive’s voluntary engagement in conduct constituting larceny, embezzlement, conversion or any other act involving the misappropriation of funds of any Group Company in the course of Executive’s employment; or (iii) the willful refusal (following written notice) to carry out specific directions of the Board, the Board of Directors of the Company or the Board of Directors of any other Group Company of which Executive is an officer, which directions shall be consistent with the

 

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provisions hereof; or (iv) Executive’s committing any act of gross negligence or intentional misconduct in the performance or non-performance of Executive’s duties as an employee of the Company; or (v) any material breach by Executive of any material provision of this Agreement (other than for reasons related only to the business performance of the Company or business results achieved by Executive). For purposes of Sections 2(c) and (d), no act or failure to act on Executive’s part shall be considered to be Cause if done, or omitted to be done, by Executive in good faith and with the reasonable belief that the action or omission was in the best interests of the relevant Group Company.

 

(d) If Executive’s employment is terminated by the Company without Cause, then Executive shall be entitled to receive (so long as he executes and delivers the Company’s standard form of release) an amount equal to Executive’s then current Base Salary for a period of twelve months (such amount as modified below, the “Base Severance Amount”, and such period, as modified below, the “Severance Period”) plus all other amounts and benefits to which Executive is entitled, including without limitation, expense reimbursement amounts accrued to the effective date of termination and amounts and benefits owing under the terms of any benefit plan of any Group Company in which Executive participates. Notwithstanding the foregoing, if such termination occurs within 12 months following a Change of Control, the Base Severance Amount shall be an amount equal to Executive’s then current Base Salary for a period of eighteen months plus an amount equal to 150% of the annual cash bonus paid to Executive with respect to the calendar year immediately preceding the year in which Executive’s employment with the Company terminated, and the Severance Period shall be eighteen months. For purposes of this Agreement, “Change of Control” has the meaning ascribed to such term in the Management Shareholders Agreement, and “Management Shareholders Agreement” means that certain Management Shareholders Agreement dated as of the date hereof by and among Warner Chilcott, Warner II, Warner Chilcott Holdings Company III, Limited, Executive and the other parties thereto. The foregoing amounts shall be payable over the Severance Period in equal installments in accordance with the Company’s regular payroll practice. In addition, Executive shall be entitled to continue participation in the Company’s health and other welfare benefit plans, at the Company’s expense, for the Severance Period.

 

(e) If Executive’s employment is terminated by Executive for Good Reason, then Executive shall be entitled to the payments specified in Section 2(d) hereof, paid in the manner set forth therein. For purposes of this Agreement, “Good Reason” shall mean: (A) the assignment to Executive of duties materially inconsistent with Executive’s position (including status, offices, titles, and reporting requirements), authority, duties or responsibilities as contemplated by Section 1(a) hereof, or any other action by Warner Chilcott or the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by Warner Chilcott or the Company promptly after receipt of written notice thereof given by Executive; (B) any failure by the Company to pay to Executive his Base Salary and/or bonus (if such a bonus has been declared), other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of written notice thereof given by Executive; (C) the Company’s requiring Executive to be based at any office or location other than as provided in Section 1(b); (D) any purported termination by the Company of Executive’s employment other than for Cause or pursuant to Sections 2(a) or (b)

 

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hereof; or (E) any failure by the Company to obtain an express assumption of this Agreement by a successor as required pursuant to Section 14 hereof.

 

(f) If Executive’s employment is terminated by Executive due to Executive’s resignation or retirement, then this Agreement shall terminate as of the effective date of Executive’s retirement or resignation and thereupon Executive shall be entitled solely to the payments and benefits set forth in Sections 2(c) and (g).

 

(g) Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or in any contract or agreement with the Company or any of the other Group Companies at or subsequent to the date of termination of Executive’s employment for any reason shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

 

3. Gross Up Payment.

 

(a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment or consideration to or for the benefit of, or received by, Executive from a Group Company in connection with the Acquisition, including pursuant to those certain grants on the date hereof to Executive of certain ordinary shares of Warner Chilcott and preferred shares of Warner Chilcott Holdings Company II, Limited (“Warner II”) pursuant to (i) that certain Share Award Agreement pursuant to the 2005 Equity Incentive Plan, dated as of the date hereof by and among Warner Chilcott and Executive, and (ii) that certain Strip Grant Agreement, dated as of the date hereof by and among Warner Chilcott, Warner II, and the Executive, (any such payments or consideration, a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 of the United States, as amended (the “Code”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Executive at the time specified in Section 3(e) below an additional amount (a “Gross-Up Payment”) such that the net amount of the Gross-Up Payment retained by Executive, after deduction of all federal, state and local income tax (and any interest and penalties imposed with respect thereto), employment tax and Excise Tax on the Gross-Up Payment, shall be equal to the amount of the Excise Tax imposed on such Payment.

 

(b) For purposes of the foregoing Section 3(a), the proper amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined in the first instance by the Company. Such determination by the Company shall be promptly communicated in writing by the Company to Executive. Within 10 days of being provided with written notice of any such determination, Executive may provide written notice to the Compensation Committee of the Board (or, if there is no such Compensation Committee, the Board) of any disagreement, in which event the amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined by an independent accounting firm mutually selected by the Company and Executive. The determination of the Company (or in the event of disagreement, the accounting firm selected) shall be final and nonreviewable.

 

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(c) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax under Section 3, any payments or benefits received or to be received by Executive in connection with a termination of employment shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless the Company or the accounting firm selected above, as applicable, determines based on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, with substantial authority (within the meaning of Section 6662 of the Code), such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3

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