Exhibit 10.40
2007 PTS HOLDINGS CORP.
STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (the “
Agreement
”), is made effective as of [ ] (the “
Date of Grant
”), between PTS Holdings Corp. (the
“
Company
”) and the individual named on the signature page hereto (the “
Participant
”).
R
E
C
I
T
A
L
S
:
WHEREAS, the Company has adopted the Plan (as defined below), the terms of which are hereby incorporated by reference and made a part of
this Agreement; and
WHEREAS, the Committee (as defined in the Plan) has determined that it would be in the best interests of
the Company and its stockholders to grant the Options (as defined below) provided for herein to the Participant pursuant to the Plan and the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
1.
Definitions
. Whenever the following terms are used in this Agreement, they shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the same meanings as
in the Plan.
(a)
Cause
: “Cause” shall mean “Cause” as such term may be defined in any
employment agreement in effect at the time of the Participant’s termination of Employment between the Participant and the Company or its Subsidiaries or Affiliates, or, if there is no such employment agreement or such term is not defined
therein, “Cause” shall mean (i) the Participant’s willful failure to perform duties which is not cured within 15 days following written notice, (ii) the Participant’s conviction or confessing to or becoming subject to
proceedings that provide a reasonable basis for the Company to believe that the Participant has engaged in a (x) felony, (y) crime involving dishonesty, or (z) crime involving moral turpitude and which is demonstrably injurious to the
Company and its Subsidiaries, (iii) the Participant’s willful malfeasance or misconduct which is demonstrably injurious to the Company and its Subsidiaries, or (iv) breach by the Participant of the material terms of any agreement with
the Company or its Subsidiaries, including, without limitation, any non-competition, non-solicitation or confidentiality provisions thereof. For purposes of this definition, no act or failure to act shall be deemed “willful” unless
effected by the Participant not in good faith.
(b)
EBITDA Option
: An Option with respect to which the terms and
conditions are set forth in Section 3(b) of this Agreement.
(c)
Expiration Date
: The tenth anniversary of
the Date of Grant.
(d)
Exit Option
: Collectively, the Tier I Exit Option and the Tier II Exit Option.
(e)
Fiscal Year
: Each fiscal year of the Company (which,
for the avoidance of doubt, ends on or about
June 30
th
of any given year).
(f)
Good Reason
: “Good Reason” shall mean “Good Reason” as such term may be defined in any employment
agreement in effect at the time of the Participant’s termination of Employment between the Participant and the Company or its Subsidiaries or Affiliates, or, if there is no such employment agreement or such term is not defined therein,
“Good Reason” shall mean, without the Participant’s consent, (i) a substantial diminution in the Participant’s position or duties, adverse change in reporting lines, or assignment of duties materially inconsistent with the
Participant’s position, (ii) any reduction in the Participant’s base salary, (iii) failure of the Company to pay compensation or benefits when due, (iv) moving the Participant’s then-principal business location more
than 50 miles or (v) failure to provide the Participant with an annual bonus opportunity at the same level as established for the Participant in connection with the Participant’s commencement of employment with the Company and its
Subsidiaries or Affiliates, as applicable, in each case, which is not cured within 30 days following the Company’s receipt of written notice from the Participant describing the event constituting Good Reason.
(g)
Options
: Collectively, the Time Option, the EBITDA Option, and the Exit Option to purchase Shares granted under this
Agreement.
(h)
Plan
: The 2007 PTS Holdings Corp. Stock Incentive Plan, as it may be amended or supplemented
from time to time.
(i)
Securityholders Agreement
: The Securityholders Agreement dated as of May 7, 2007
among the Company and the other parties thereto, as it may be amended or supplemented from time to time.
(j)
Subscription Agreement
: The Subscription Agreement entered into between the Company and the Participant in a form reasonably acceptable to the Company, as it may be amended or supplemented from time to time.
(k)
Tier I Exit Option
: An Option with respect to which the terms and conditions are set forth in Section 3(c) of this
Agreement.
(l)
Tier II Exit Option
: An Option with respect to which the terms and conditions are set forth in
Section 3(d) of this Agreement.
(m)
Time Option
: An Option with respect to which the terms and conditions
are set forth in Section 3(a) of this Agreement.
(n)
Vested Portion
: At any time, the portion of an Option
which has become vested, as described in Section 3 of this Agreement.
(o)
Vesting Reference Date
:
[ ].
2.
Grant of Options.
The Company hereby grants to the Participant the right and option to
purchase, on the terms and conditions hereinafter set forth, all or any part of the number of Shares subject to the Time Option, the EBITDA Option, and the Exit Option set
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forth on Schedule A attached hereto, subject to adjustment as set forth in the Plan. The Option Price shall be $1300 per Share. The Options are intended to be nonqualified stock options, and are
not intended to be treated as an option that complies with Section 422 of the Code.
3.
Vesting of the Options
.
(a)
Vesting of the Time Option
. Subject to the Participant’s continued Employment through the applicable vesting
date, the Time Option shall vest and become exercisable with respect to twenty percent (20%) of the Shares subject to such Time Option on each of the first five anniversaries of the Vesting Reference Date. Notwithstanding the foregoing, in the
event of a Change in Control, the Time Option shall, to the extent not then vested or previously forfeited or cancelled, become fully vested and exercisable.
(b)
Vesting of the EBITDA Option
.
(i)
In General
.
Subject to the Participant’s continued Employment through the applicable vesting date, the EBITDA Option shall vest and become exercisable with respect to twenty percent (20%) of the Shares subject to the EBITDA Option on each of the first
five anniversaries of the Vesting Reference Date (each such anniversary, an “
EBITDA Option Performance Vesting Date
”) if, as of the last day of the Fiscal Year ending after the applicable EBITDA Option Performance Vesting
Date, the EBITDA goal set forth on Schedule B (the “
EBITDA Goal
”) for the applicable Fiscal Year is achieved or exceeded, with the vesting being deemed to occur on the EBITDA Option Performance Vesting Date that occurs
immediately prior to the last day of the applicable Fiscal Year.
(ii)
Catch-Up
. Notwithstanding the
foregoing, subject to the Participant’s continued Employment through the applicable vesting date, if the portion of the EBITDA Option that is scheduled to vest in respect of a given Fiscal Year does not vest because the EBITDA Goal is not
achieved or exceeded in respect of such Fiscal Year (any such Fiscal Year, a “
Missed Year
”), then the portion of the EBITDA Option that was eligible to vest but failed to vest due to the failure to achieve or exceed the
EBITDA Goal in such Missed Year shall nevertheless vest and become exercisable
if
the Cumulative EBITDA Goal set forth on Schedule B for any completed Fiscal Year that is subsequent to any Missed Year (any such Fiscal Year, an
“
Achieved Year
”) is achieved or exceeded, with vesting being deemed to occur on the EBITDA Option Performance Vesting Date that occurs immediately prior to the last day of the Achieved Year.
Such EBITDA Goals shall be adjusted in good faith to reflect acquisitions, divestitures and other similar corporate transactions that
would affect the EBITDA Goals.
(c)
Vesting of the Tier I Exit Option
. Subject to the Participant’s continued
Employment through the applicable vesting date, the Tier I Exit Option shall vest on the date, if any, when either (i) Blackstone shall have received cash proceeds or marketable securities from the sale of its investment in the Company
aggregating in excess of 2.5 times the amount of its initial investment in the Company (such initial investment equaling $914,680,907.54) (the “
Initial Investment
”) or (ii) Blackstone shall have received a cash Internal
Rate of Return of at
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least 20% on its Initial Investment. For purposes of this Agreement, “
Internal Rate of Return
” means, as of a given date, the internal rate of return compounded annually from
April 10, 2007 with respect to the Initial Investment). Notwithstanding the foregoing, subject to the Participant’s continued Employment through the applicable vesting date, in the event that the 2.5 multiple hurdle or the 20% Internal
Rate of Return hurdle (each as described in this Section 3(c)) is not met, but the 1.75 multiple hurdle or the 15% Internal Rate of Return hurdle (each as described below) is met, the Tier I Exit Option shall vest based on straight line
interpolation between the two points.
(d)
Vesting of the Tier II Exit Option
. Subject to the Participant’s
continued Employment through the applicable vesting date, the Tier II Exit Option shall vest on the date, if any, when either (i) Blackstone shall have received cash proceeds or marketable securities from the sale of its investment in the
Company aggregating in excess of 1.75 times the Initial Investment or (ii) Blackstone shall have received a cash Internal Rate of Return of at least 15% on its Initial Investment.
(e)
Termination of Employment
. If the Participant’s Employment terminates for any reason, the Option, to the extent not then
vested and exercisable, shall be immediately canceled by the Company without consideration. Notwithstanding anything to the contrary in this Agreement, in the event of the termination of the Participant’s Employment (i) by the Company
without Cause, (ii) by the Participant for Good Reason, (iii) due to death or Disability or (iv) due to the Company’s election not to extend the employment term under any employment agreement in effect at the time of the
Participant’s termination of Employment between the Participant and the Company, to the extent applicable, the Participant shall be deemed vested in any portion of the Time Option that would otherwise have vested within 12 months following such
termination of Employment.
4.
Exercise of Options.
(a)
Period of Exercise
. Subject to the provisions of the Plan and this Agreement, the Participant may exercise all or any part of
the Vested Portion of an Option at any time prior to the Expiration Date. Notwithstanding the foregoing, if the Participant’s Employment terminates prior to the Expiration Date, the Vested Portion of an Option shall remain exercisable for the
period set forth below:
(i)
Death or Disability
. If the Participant’s Employment is terminated due
to the Participant’s death or Disability, the Participant may exercise the Vested Portion of an Option for a period ending on the earlier of (A) the one year anniversary of such termination of Employment and (B) the Expiration Date,
and, for any portion of the EBITDA Option that is determined to be vested after the date of termination in accordance with Section 3(b), for a period ending on the earlier of (I) the one year anniversary of the date on which such portion
of the EBITDA Option vests and (II) the Expiration Date;
(ii)
Termination by the Company Other than for
Cause or Due to Death or Disability
. If the Participant’s Employment is terminated other than by the Company for Cause or due to death or Disability, the Participant may exercise the Vested Portion of an
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Option that became vested on or prior to the date of termination for a period ending on the earlier of (A) the 90
th
day following such termination of Employment and (B) the Expiration Date, and, for any portion of the EBITDA
Option that is determined to be vested after the date of termination in accordance with Section 3(b), for a period ending on the earlier of (I) the 90
th
day following the date on which such portion of the EBITDA Option vests and (II) the Expiration Date; and
(iii)
Termination by the Company for Cause
. If the Participant’s Employment is terminated by the Company for
Cause, the Vested Portion of an Option shall immediately terminate in full and cease to be exercisable.
(b)
Method of
Exercise
.
(i) Subject to Section 4(a) of this Agreement and Section 6(c) of the Plan, the Vested
Portion of an Option may be exercised by delivering to the Company at its principal office written notice of intent to so exercise;
provided
that, the Option may be exercised with respect to whole Shares only. Such notice shall specify the
number of Shares for which the Option is being exercised and shall be accompanied by payment in full of the Option Price. The payment of the Option Price may be made at the election of the Participant (i) in cash or its equivalent (
e.g
.,
by check), (ii) in Shares having a Fair Market Value equal to the aggregate Option Price for the Shares being purchased and satisfying such other requirements as may be imposed by the Committee; provided, that such Shares have been held by the
Participant for more than six months (or such other period as established from time to time by the Committee in order to avoid adverse accounting treatment applying generally accepted accounting principles), (iii) partly in cash and partly in
such Shares, (iv) if there is a public market for the Shares at such time, to the extent permitted by the Committee and subject to such rules as may be established by the Committee, through the delivery of irrevocable instructions to a broker
to sell Shares obtained upon the exercise of the Option and to deliver promptly to the Company an amount out of the proceeds of such sale equal to the aggregate option price for the Shares being purchased, or (v) using a net settlement
mechanism whereby the number of Shares delivered upon the exercise of the Option will be reduced by a number of Shares that has a Fair Market Value equal to the Option Price, provided that the Participant tenders cash or its equivalent to pay any
applicable withholding taxes. The Participant shall not have any rights to dividends or other rights of a stockholder with respect to Shares subject to an Option until the Participant has given written notice of exercise of the Option, paid in full
for such Shares and, if applicable, has satisfied any other conditions imposed by the Committee pursuant to the Plan.
(ii) Notwithstanding any other provision of the Plan or this Agreement to the contrary, absent an available exemption to registration or qualification, an Option may not be exercised prior to the
completion of any registration or qualification of an Option or the Shares under applicable state and federal securities or other laws, or under any ruling or regulation of any governmental body or national securities exchange that the Committee
shall in its sole discretion determine to be necessary or advisable; provided, that the Company shall use commercially reasonable efforts to take such
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actions as are necessary and appropriate to register or qualify the Shares subject to the Option so it may be exercised.
(iii) Upon the Company’s determination that an Option has been validly exercised as to any of the Shares, the Company
shall issue certificates in the Participant’s name for such Shares. However, the Company shall not be liable to the Participant for damages relating to any delays in issuing the certificates to the Participant, any loss by the Participant of
the certificates, or any mistakes or errors in the issuance of the certificates or in the certificates themselves.
(iv) In the event of the Participant’s death, the Vested Portion of an Option shall remain exercisable by the Participant’s executor or administrator, or the person or persons to whom the
Participant’s rights under this Agreement shall pass by will or by the laws of descent and distribution as the case may be, to the extent set forth in Section 4(a) of this Agreement. Any heir or legatee of the Participant shall take rights
herein granted subject to the terms and conditions hereof.
(v) As a condition to the exercise of any Option
evidenced by this Agreement, the Participant shall execute the Securityholders Agreement and the Subscription Agreement.
5.
No Right to Continued Employment
. Neither the Plan nor this Agreement shall be construed as giving the Participant the right to be retained in the employ of, or in any consulting relationship to, the Company or any Affiliate. Further, the
Company or any Affiliate may at any time dismiss the Participant or discontinue any consulting relationship, free from any liability or any claim under the Plan or this Agreement, except as otherwise expressly provided herein.
6.
Legend on Certificates
. The certificates representing the Shares purchased by exercise of an Option shall be subject to such
stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which such Shares are listed or
quoted or market to which the Shares are admitted for trading and, any applicable federal or state or any other applicable laws and the Company’s Certificate of Incorporation and Bylaws, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
7.
Transferability
. An Option may not be
assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant otherwise than by will or by the laws of descent and distribution, and any such purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate;
provided
that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. No
such permitted transfer of an Option to heirs or legatees of the Participant shall be effective to bind the Company unless the Committee shall have been furnished with written notice thereof and a copy of such evidence as the Committee may deem
necessary to establish the validity of the transfer and the acceptance by
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the transferee or transferees of the terms and conditions thereof. During the Participant’s lifetime, an Option is exercisable only by the Participant.
8.
Withholding
. The Participant may be required to pay to the Company or any Affiliate and the Company or its Affiliates shall
have the right and are authorized to withhold any applicable withholding taxes in respect of an Option, its exercise, or any payment or transfer under or with respect to an Option and to take such other action as may be necessary in the opinion of
the Committee to satisfy all obligations for the payment of such withholding taxes. The Participant may elect to pay any or all of such withholding taxes as provided in Section 4 of the Plan.
9.
Securities Laws
. Upon the acquisition of any Shares pursuant to the exercise of an Option, the Participant will make or enter
into such written representations, warranties and agreements as the Committee may reasonably request in order to comply with applicable securities laws or with this Agreement.
10.
Notices
. Any notice under this Agreement shall be addressed to the Company in care of its Chief Financial Officer and a copy to the General Counsel, each copy addressed to the principal
executive office of the Company and to the Participant at the address appearing in the personnel records of the Company for the Participant or to either party at such other address as either party hereto may hereafter designate in writing to the
other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
11.
Governing Law
. This
Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts of laws.
12.
Options Subject to Plan, Securityholders Agreement and Subscription Agreement
. By entering into this Agreement the Participant agrees and acknowledges that the Participant has received and read
a copy of the Plan, the Securityholders Agreement and the Subscription Agreement. The Options and the Shares received upon exercise of an Option are subject to the Plan, the Securityholders Agreement and the Subscription Agreement. For the avoidance
of doubt, the Participant further agrees and acknowledges that (x) this Agreement, in addition to any other stock option agreements previously entered into or to be entered into by the Participant at any time following the date hereof, shall be
considered a “Stock Option Agreement” under the Subscription Agreement and (y) the Options, in addition to any other stock options previously awarded or to be awarded at any time following the date hereof, shall be considered
“Options” under the Subscription Agreement. The terms and provisions of the Plan, the Securityholders Agreement and the Subscription Agreement, as each may be amended from time to time are hereby incorporated by reference. In the event of
a conflict between any term or provision contained herein and a term or provision of the Plan, the Securityholders Agreement or the Subscription Agreement, the applicable terms and provisions of the Plan, the Securityholders Agreement or the
Subscription Agreement will govern and prevail. In the event of a conflict between any term or provision of the Plan and any term or provision of the Securityholders Agreement or the Subscription Agreement, the applicable terms and provisions of the
Securityholders Agreement or the Subscription Agreement, as applicable, will govern and prevail.
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13.
Amendment
. The Committee may waive any conditions or rights under, amend any
terms of, or alter, suspend, discontinue, cancel or terminate this Agreement, but no such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination shall materially adversely affect the rights of the Participant
hereunder without the consent of the Participant.
14.
Signature in Counterparts
. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
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.]
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
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PTS HOLDINGS CORP.
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By:
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/s/ John Chiminski
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By Scott Houlton
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/s/ Scott Houlton
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Option
Agreement
Schedule A
The number of Shares subject to each Option is set forth below:
Participant Name: Scott Houlton
Grant Date: [ ]
Time Option: [ ]
EBITDA Option: [ ]
Tier I Exit Option: [ ]
Tier II Exit Option: [ ]
Option
Agreement
Schedule B
EBITDA Goals
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Fiscal Year
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EBITDA Goal
(dollars in millions)
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Cumulative EBITDA Goal
(dollars in millions)
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2013
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[ ]
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[ ]
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2014
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[ ]
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[ ]
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2015
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[ ]
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[ ]
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2016
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[ ]
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[ ]
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2017
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[ ]
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[ ]
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“EBITDA” is defined as internally reported operating earnings increased by depreciation and amortization and is
based on fiscal year 2010 internally budgeted foreign exchange rates. Future performance will be translated at constant foreign exchange rates in order to gauge performance against EBITDA goals in consideration of foreign currency fluctuations,
which may occur.
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Exhibit 10.42
EMPLOYMENT AGREEMENT
(Matthew Walsh)
EMPLOYMENT AGREEMENT (the “
Agreement
”) dated as of October 11, 2011 and effective as of September 26, 2011
(the “
Effective Date
”) by and between Catalent Pharma Solutions, Inc. (together with its successors and assigns, “
Catalent
”) and Matthew Walsh (“
Executive
”).
WHEREAS, Catalent desires to employ Executive and to enter into an agreement embodying the terms of such employment; and
WHEREAS, Executive desires to accept such employment with Catalent and enter into such an agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration, the parties
agree as follows:
1.
Term of Employment
. Subject to the provisions of Section 7 of this
Agreement, Executive shall be employed by Catalent for a period commencing on the Effective Date and ending on September 25, 2014 (the “
Employment Term
”) on the terms and subject to the conditions set forth in this Agreement;
provided, however, that commencing with September 26, 2014 and on each September 26
th
thereafter (each an “
Extension Date
”), the Employment Term shall be automatically extended for an additional one-year period, unless Catalent or Executive (each, a
“
Party
”) provides the other Party hereto sixty (60) days’ prior written notice before the next Extension Date that the Employment Term shall not be so extended.
2.
Position
.
a. During the Employment Term, Executive shall serve as a Senior Vice President and the Chief Financial Officer of Catalent. In such positions, Executive shall have such duties, authority and
responsibilities, commensurate with Executive’s positions in a company the size and nature of Catalent and such related duties and responsibilities, as from time to time may be assigned to Executive by the Chief Executive Officer of Catalent
(the “
CEO
”) and the audit committee of the Board of Directors of Catalent (the “
Board
”). Executive shall report directly to the CEO. During the Employment Term, Executive’s principal place of employment shall
be at Catalent’s headquarters, currently located in Somerset, New Jersey.
b. During the Employment Term, except during
vacations and authorized leave, Executive will devote Executive’s full business time and reasonable best efforts to the performance of his duties hereunder and will not engage in any other business, profession or occupation for compensation or
otherwise which would conflict or interfere with the rendition of such services either directly or indirectly, without the prior written consent of the CEO;
provided
that nothing herein shall preclude Executive from (x) managing his
personal and family investments and affairs, (y) engaging in charitable activities and community affairs, and
Option
Agreement
(z) subject to the prior approval of the CEO, from accepting appointment to or continuing to serve on any boards of directors or trustees of any business, corporation or charitable organization;
provided that, in each case, such activities described in this Section 2(b) do not conflict or interfere in more than a de minimus way with the performance of Executive’s duties hereunder or violate Sections 8 and 9.
3.
Base Salary
. During the Employment Term, Catalent shall pay Executive an annual base salary at the annual rate of $600,000,
payable in regular installments in accordance with Catalent’s usual payment practices. Executive shall be entitled to such increases, if any, in his base salary as may be determined from time to time in the sole discretion of the Board.
Executive’s annual base salary, as in effect from time to time, consistent with this Section 3, is hereinafter referred to as the “
Base Salary
”.
4.
Annual Bonus
. With respect to the 2012 fiscal year and each full fiscal year during the Employment Term, commencing with the 2013 fiscal year, subject to Executive’s continued employment
with Catalent through the end of each such fiscal year (except as otherwise provided in Section 7 or as provided for under the terms of Catalent’s Management Incentive Plan, as it may be amended from time to time (the
“
MIP
”)), Executive shall be eligible to receive an annual cash bonus award (the “
Annual Bonus
”) under the MIP with a target amount equal to seventy-five percent (75%) of the annualized Base Salary received by
Executive for such fiscal year (the “
Target Bonus
”), based upon and subject to the achievement of annual performance targets established by the Board under the MIP. As the actual amount payable to Executive as an Annual Bonus will
be dependent upon the achievement of performance goals established under the MIP, Executive’s actual Annual Bonus may be less than, greater than or equal to the Target Bonus. The Annual Bonus, if any, shall be paid to Executive in accordance
with the terms and conditions of the MIP. Notwithstanding anything in this Agreement or the MIP to the contrary, Executive’s Annual Bonus, if any, under the MIP, earned in respect of the 2012 fiscal year, will be determined as follows:
(i) the portion of Executive’s Annual Bonus, if any, that relates to his employment with Catalent from July 1, 2011 through the day immediately prior to the Effective Date will be calculated by reference to the base salary earned by
Executive during such period, and (ii) the portion of Executive’s Annual Bonus, if any, that relates to his employment with Catalent from the Effective Date through the last day of the 2012 fiscal year will be calculated by reference to
the Base Salary earned by Executive during such period.
5.
Employee Benefits; Equity Awards
.
a. During the Employment Term, Executive shall continue to be entitled to participate in all group health, life, disability and other
employee benefit and perquisite plans and programs in which other senior executives of Catalent participate, as in effect from time to time, on a basis no less favorable to Executive than that applying generally to other senior executives of
Catalent (not taking into account for purposes of the foregoing, any sign-on or initial awards made to other executives), to the extent consistent with applicable law and the terms of the applicable plans and programs.
b. For each full year during the Employment Term, Executive shall continue to be (i) entitled to seven (7) paid company
holidays and (ii) eligible to receive twenty-
six (26) days of paid time off, which days will not be permitted to be carried over into a subsequent year unless required by applicable law.
c. As soon as practicable following the Effective Date, in accordance with and pursuant to the terms of the 2007 PTS Holdings Corp.
Stock Incentive Plan, as it may be amended from time to time, PTS Holdings Corp. (“
PTS
”) shall grant Executive (i) 500 restricted stock units in the form of the award agreement attached hereto as Exhibit B (the “
RSU
Agreement
”) and (ii) options to purchase 1,500 shares of PTS’s common stock in the form of the award agreement attached hereto as Exhibit C (the “
Stock Option Agreement
”). The restricted stock units and options
and any shares issued (or issuable) or settled in connection therewith shall be subject to the terms and conditions of the Management Equity Subscription Agreement, by and between Executive and PTS, made as of June 5, 2008, which shall be
amended and restated in connection with such equity grants (the “
Management Equity Subscription Agreement
”).
6.
Business Expenses
. During the Employment Term, reasonable business expenses incurred by Executive in the performance of
Executive’s duties hereunder shall be reimbursed by Catalent in accordance with Catalent’s policies.
7.
Termination
. The Employment Term and Executive’s employment hereunder may be terminated by Catalent or Executive at any time and for any reason consistent with this Section 7; provided that, Executive will be required to give
Catalent at least sixty (60) days’ advance written notice of any resignation of Executive’s employment without Good Reason (other than due to death or Disability (as defined below)). Notwithstanding any other provision of this
Agreement, the provisions of this Section 7 shall exclusively govern Executive’s rights upon termination of employment with Catalent.
a.
By Catalent For Cause or By Executive Without Good Reason
.
(i) The
Employment Term and Executive’s employment hereunder may be terminated for Cause by Catalent or by Executive without Good Reason (other than due to death or Disability).
(ii) If Executive’s employment is terminated by Catalent for Cause or if Executive resigns without Good Reason (other than due to death or Disability), Executive shall be entitled to receive:
(A) Base Salary, accrued through the date of termination, payable in accordance with Catalent’s usual payment
practices;
(B) earned, but unpaid Annual Bonus, if any, for the immediately preceding fiscal year, paid in accordance with
Section 4 (except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement with Catalent);
(C) reimbursement, within sixty (60) days following submission by Executive to Catalent, of appropriate supporting documentation, for any unreimbursed business expenses properly incurred by Executive
in accordance with Catalent’s
policies prior to the date of Executive’s termination of employment; provided claims for such reimbursement (accompanied by appropriate supporting documentation) are submitted to Catalent
within ninety (90) days following the date of Executive’s termination of employment; and
(D) all amounts and
benefits then or thereafter due to Executive under the then or thereafter applicable terms of any applicable plan, program, agreement or arrangement of Catalent or any of its affiliates, including, without limitation, pursuant to the RSU Agreement,
the Stock Option Agreement and the Management Equity Subscription Agreement (the amounts described in clauses (A) through (D) hereof being referred to as the “
Accrued Rights
”).
Following such termination of Executive’s employment by Catalent for Cause or by Executive without Good Reason (other than due to death or
Disability), except as set forth in this Section 7(a)(ii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
(iii) For purposes of this Agreement, the terms:
(A) “
Cause
”
shall mean (I) Executive’s willful failure to perform his duties hereunder, which failure is not cured within fifteen (15) days following written notice from Catalent, (II) Executive’s conviction of or confessing to, or his
becoming subject to proceedings that provide a reasonable basis for Catalent to believe that Executive has engaged in a (x) felony, (y) crime involving dishonesty, or (z) crime involving moral turpitude and which is demonstrably
injurious to Catalent and its subsidiaries, (III) Executive engages in willful malfeasance or misconduct that, in either case, is demonstrably injurious to Catalent and its subsidiaries, or (IV) a breach by Executive of the material terms of any
non-competition, non-solicitation or confidentiality provisions. For purposes of this definition, no act or failure to act by Executive shall be deemed “willful” unless effected by Executive not in good faith.
(B) “
Good Reason
” shall mean, the occurrence of any of the following events without Executive’s consent,
(I) any substantial diminution in Executive’s position or duties, adverse change in reporting lines, up and down, or the assignment to him of duties that are materially inconsistent with his position, (II) any reduction in Executive’s
Base Salary, (III) any failure of Catalent to pay compensation or benefits when due, (IV) Catalent’s failure to provide Executive with an annual bonus opportunity that is at the same level as established in his offer letter, dated
February 29, 2008 (the “
Offer Letter
”), or (V) Executive is required to move his principal business location more than fifty (50) miles. No termination of Executive’s employment based on a specified Good Reason
event shall be effective as a termination for Good Reason unless (x) Executive gives notice to Catalent of such event within thirty (30) days after he learns that such event has occurred, (y) such Good Reason event is not fully cured
within thirty (30) days after such notice (such period, the “
Cure Period
”), and (z) Executive’s employment hereunder terminates within sixty (60) days following the end of the Cure Period.
b.
Disability or Death
.
(i) The Employment Term and Executive’s employment hereunder shall terminate upon Executive’s death and may be terminated by
Catalent if Executive becomes physically or mentally incapacitated and is therefore unable for a period of six (6) consecutive months or for an aggregate of nine (9) months in any twenty-four (24) consecutive month period to perform
Executive’s duties (such incapacity is hereinafter referred to as “
Disability
”).
(ii) Upon termination
of Executive’s employment hereunder due to either Disability or death, Executive or Executive’s estate (as the case may be) shall be entitled to receive:
(A) the Accrued Rights; and
(B) a pro-rata portion of the Annual Bonus, if any,
that Executive would have been entitled to receive under the MIP pursuant to Section 4 hereof for the fiscal year of termination based on Catalent’s actual performance in respect of the full fiscal year in which the date of termination
occurs, assuming Executive was employed for such full fiscal year, multiplied by a fraction, the numerator of which is the number of days during which Executive was employed by Catalent in the fiscal year in which Executive’s date of
termination occurs, and the denominator of which is 365 (the “
Pro-Rata Bonus
”), with such Pro-Rata Bonus payable to Executive in accordance with the terms and conditions of the MIP as if Executive’s employment had not
terminated.
Following Executive’s termination of employment due to death or Disability, except as set forth in this
Section 7(b)(ii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
c.
By Catalent Without Cause; Resignation by Executive for Good Reason
.
(i) The Employment Term and Executive’s employment hereunder may be terminated by Catalent without Cause (other than by reason of
death or Disability) or by Executive’s resignation for Good Reason.
(ii) If Executive’s employment is terminated
by Catalent without Cause (other than by reason of death or Disability) or if Executive resigns for Good Reason, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) the Pro-Rata Bonus, with such Pro-Rata Bonus
payable to Executive in accordance with the terms and conditions of the MIP as if Executive’s employment had not terminated;
(C) provided Executive executes and delivers a general release of claims against Catalent and its affiliates, in the form attached hereto as
Exhibit A
(the
“
Release
”), on or prior to the sixtieth
(60
th
) day following the date of Executive’s
termination of employment and does not revoke such Release within the time period provided therein, payment of an amount equal to two (2) times the sum of (1) Executive’s then annualized Base Salary and (2) the Target Bonus,
payable in equal monthly installments over a two-year period following the date of termination of employment (such two-year period, the “
Severance Period
”), consistent with Catalent’s past payroll practices; provided further
that, in either case, Catalent reserves the right to cease making such payments and Executive shall be obligated to repay any such amounts to Catalent already paid if he fails to execute and deliver the Release within the period provided for in this
Section 7(c)(ii)(C) or, after timely delivery, revokes it within the time period specified in such Release; and
(D)
Executive and his spouse and eligible dependents (to the extent covered immediately prior to such termination) shall continue to be eligible to participate in all of Catalent’s group health plan(s) for which Executive was eligible immediately
prior to the date of his termination (or to the extent such coverage is not permissible under the terms of such plan(s), comparable coverage) commencing on the first day of the Severance Period and ending on the earlier to occur of (x) the
expiration of the Severance Period and (y) the date Executive is or becomes eligible for coverage under the group health plan(s) of another employer (or comparable coverage to the extent applicable) (such period, the “
Continued Coverage
Period
”);
provided
,
however
, that if such coverage is longer than eighteen (18) months and such continued coverage cannot be provided under the applicable plan(s), Catalent shall pay Executive, on the first business day
of each month, an amount (on a tax grossed-up basis) equal to the premium subsidy Catalent would have otherwise paid on Executive’s behalf for such coverage during the balance of the Continued Coverage Period. The COBRA health care continuation
coverage period under Section 4980B of the Code, or any replacement or successor provision of United States tax law, shall run concurrently with the Severance Period. In addition, any tax gross up payment made to Executive hereunder shall be
made promptly, but in no event later than the end of the calendar year following the year in which the applicable taxes are remitted.
Notwithstanding the foregoing, Catalent’s obligation to make the payments contemplated under Section 7(c)(ii)(C) above shall cease in the event of Executive’s material breach of
Section 8 or 9, which breach remains uncured for a period of ten (10) days following Catalent’s written notice to Executive of such breach.
Following Executive’s termination of employment by Catalent without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation for Good Reason, except as
set forth in this Section 7(c)(ii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
d.
Non-Renewal of Employment Term
.
(i) In the event Executive elects not
to extend the Employment Term pursuant to Section 1, unless Executive’s employment is earlier terminated pursuant to paragraphs (a), (b) or (c) of this Section 7, the expiration of the Employment Term and Executive’s
termination of employment hereunder shall be deemed to occur on the close of business on the day immediately
preceding the next scheduled Extension Date and Executive shall be entitled to receive the Accrued Rights.
Following such termination of Executive’s employment under this Section 7(d)(i), except as set forth in this Section 7(d)(i), Executive shall have no further rights to any compensation or
any other benefits under this Agreement.
(ii) In the event Catalent elects not to extend the Employment Term pursuant to
Section 1, unless Executive’s employment is earlier terminated pursuant to paragraphs (a), (b) or (c) of this Section 7, the expiration of the Employment Term and Executive’s termination of employment hereunder shall be
deemed to occur on the close of business on the day immediately preceding the next scheduled Extension Date and Executive shall be entitled to receive the Accrued Rights.
In addition to the Accrued Rights, as a result of such termination of employment, Executive shall be entitled to receive:
(A) the Pro-Rata Bonus, with such Pro-Rata Bonus payable to Executive in accordance with the terms and conditions of the MIP as if Executive’s employment had not terminated;
(B) provided Executive executes and delivers the Release on or prior to the sixtieth (60
th
) day following the date of Executive’s termination of
employment and does not revoke such Release within the time period provided therein, payment of an amount equal to two (2) times the sum of (1) Executive’s then annualized Base Salary and (2) the Target Bonus, payable in equal
monthly installments over the Severance Period, consistent with Catalent’s past payroll practices; provided further that, in either case, Catalent reserves the right to cease making such payments and Executive shall be obligated to repay any
such amounts to Catalent already paid if he fails to execute and deliver the Release within the period provided for in this Section 7(d)(ii)(B) or, after timely delivery, revokes it within the time period specified in such Release; and
(C) Executive and his spouse and eligible dependents (to the extent covered immediately prior to such termination) shall
continue to be eligible to participate in all of Catalent’s group health plan(s) for which Executive was eligible immediately prior to the date of his termination (or to the extent such coverage is not permissible under the terms of such
plan(s), comparable coverage) during the Continued Coverage Period;
provided
,
however
, that if such coverage is longer than eighteen (18) months and such continued coverage cannot be provided under the applicable plan(s), Catalent
shall pay Executive, on the first business day of each month, an amount (on a tax grossed-up basis) equal to the premium subsidy Catalent would have otherwise paid on Executive’s behalf for such coverage during the balance of the Continued
Coverage Period. The COBRA health care continuation coverage period under Section 4980B of the Code, or any replacement or successor provision of United States tax law, shall run concurrently with the Severance Period. In addition, any tax
gross up payment made to Executive hereunder shall be made promptly, but in no event later than the end of the calendar year following the year in which the applicable taxes are remitted.
Notwithstanding the foregoing, Catalent’s obligation to make the payments contemplated
under Section 7(d)(ii)(B) above shall cease in the event of Executive’s material breach of Section 8 or 9, which breach remains uncured for a period of ten (10) days following Catalent’s written notice to Executive of such
breach.
Following such termination of Executive’s employment under this Section 7(d)(ii), except as set forth in
this Section 7(d)(ii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.
(iii) Unless the Parties otherwise agree in writing, continuation of Executive’s employment with Catalent beyond the expiration of the Employment Term shall be deemed an employment at-will and shall
not be deemed to extend any of the provisions of this Agreement and Executive’s employment may thereafter be terminated at will by either Executive or Catalent;
provided
that the provisions of Sections 8, 9 and 10 of this Agreement shall
survive any termination of this Agreement or Executive’s termination of employment hereunder.
e. Any payments under
this Section 7 shall not be taken into account for purposes of any retirement plan (including any supplemental retirement plan or arrangement) or other benefit plan sponsored by Catalent or any of its subsidiaries except as otherwise expressly
required by such plans or applicable law.
f.
Notice of Termination
. Any purported termination of employment by
Catalent or by Executive (other than due to Executive’s death) shall be communicated by written Notice of Termination (as defined below) to the other Party in accordance with Section 11(j) 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 the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
8.
Non-Competition
.
a. Executive acknowledges and recognizes the highly competitive nature of the businesses of Catalent and its subsidiaries and accordingly
agrees as follows:
(1) During the Employment Term and for a period of two (2) years following the date Executive’s
employment ceases for any reason (the “
Restricted Period
”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or
other business organization, entity or enterprise whatsoever (“
Person
”), directly or indirectly solicit or assist in soliciting in competition with Catalent or any of its subsidiaries, the business of any client or prospective
client:
|
|
(i)
|
with whom Executive had personal contact or dealings on behalf of Catalent or any of its subsidiaries during the one year period preceding Executive’s termination
of employment;
|
|
|
(ii)
|
with whom employees reporting to Executive have had personal contact or dealings on behalf of Catalent or any of its subsidiaries
|
|
|
during the one year immediately preceding Executive’s termination of employment; or
|
|
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(iii)
|
for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive’s termination of employment.
|
(2) During the Employment Term and for a period of one year following the date Executive ceases to be employed by Catalent for any
reason, Executive will not directly or indirectly:
|
|
(i)
|
engage in any business that competes with the business of Catalent or any of its subsidiaries, including, contract services to pharmaceutical, biotechnology and
vitamin/mineral supplements manufacturers related to formulation, analysis manufacturing and packaging and any other product or service of the type developed, manufactured or sold by Catalent or any of its subsidiaries (including, without
limitation, any other business which Catalent or any of its subsidiaries have plans to engage in as of the date of Executive’s termination of employment) in any geographical area where Catalent or any of its subsidiaries conduct business (a
“
Competitive Business
”);
|
|
|
(ii)
|
enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive
Business;
|
|
|
(iii)
|
acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,
officer, director, principal, agent, trustee or consultant; or
|
|
|
(iv)
|
interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between Catalent or any of its
subsidiaries and customers, clients, suppliers, partners, members or investors of Catalent or any of its subsidiaries.
|
(3) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly, own, solely as an investment, securities of any Person engaged in the business of Catalent or any of
its subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such Person and (ii) does not,
directly or indirectly, own 5% or more of any class of securities of such Person.
(4) During the Restricted Period, Executive
will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
|
|
(i)
|
solicit or encourage any employee of Catalent or any of its subsidiaries to leave the employment of Catalent or any of its subsidiaries; or
|
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(ii)
|
hire any such employee who was employed by Catalent or any of its subsidiaries as of the date of Executive’s termination of employment with Catalent or who left
the employment of Catalent or any of its subsidiaries coincident with, or within twelve (12) months prior to, the termination of Executive’s employment with Catalent.
|
(5) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with Catalent or any
of its subsidiaries any consultant then under contract with Catalent or any of its subsidiaries.
b. It is expressly
understood and agreed that although Executive and Catalent consider the restrictions contained in this Section 8 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any
other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such
maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
The
provisions of this Section 8 shall survive the termination of Executive’s employment for any reason.
9.
Confidentiality; Intellectual Property
.
a.
Confidentiality
.
(i) Executive will not at any time (whether during or after Executive’s employment with Catalent), other than in the ordinary course
of business for Catalent or any of its subsidiaries (x) retain or use for the benefit, purposes or account of Executive or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person
outside Catalent (other than its professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information of Catalent and its subsidiaries —including without limitation trade secrets,
know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors,
customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals — concerning the past, current or future business, activities
and operations of Catalent, its subsidiaries or affiliates and/or any third party that has disclosed or provided any of same to
Catalent on a confidential basis (“
Confidential Information
”) without the prior written authorization of the Board.
(ii) “
Confidential Information
” shall not include any information that is (a) generally known to the industry or
the public other than as a result of Executive’s breach of this covenant or any breach of other confidentiality obligations by third parties; (b) made legitimately available to Executive by a third party without breach of any
confidentiality obligation; or (c) required by law to be disclosed or in any judicial or administrative process;
provided
that, unless prohibited by law or regulation, Executive shall give prompt written notice to Catalent of such
requirement, disclose no more information than is so required, and cooperate with any attempts by Catalent to obtain a protective order or similar treatment.
(iii) Upon termination of Executive’s employment with Catalent for any reason, Executive shall (x) cease and not thereafter commence use of any Confidential Information or intellectual property
(including, without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by Catalent or any of its subsidiaries or affiliates; (y) immediately destroy,
delete, or return to Catalent, at its option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in Executive’s possession or control (including any of the
foregoing stored or located in Executive’s office, home, laptop or other computer, whether or not property of Catalent) that contain Confidential Information or otherwise relate to the business of Catalent or any of its affiliates or
subsidiaries, except that Executive may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information; and (z) notify and fully cooperate with Catalent regarding the delivery or
destruction of any other Confidential Information of which Executive is or becomes aware.
b. Intellectual Property.
(i) If Executive creates, invents, designs, develops, contributes to or improves any works of authorship, inventions,
intellectual property, materials, documents or other work product (including without limitation, research, reports, software, databases, systems, applications, presentations, textual works, content, or audiovisual materials), either alone or with
third parties, at any time during Executive’s employment by Catalent and within the scope of such employment and/or with the use of any of Catalent’s resources (“
Company Works
”), Executive shall promptly and fully disclose
same to Catalent and hereby irrevocably assigns, transfers and conveys, to the maximum extent permitted by applicable law, all rights and intellectual property rights therein (including rights under patent, industrial property, copyright, trademark,
trade secret, unfair competition and related laws) to Catalent to the extent ownership of any such rights does not vest originally in Catalent.
(ii) Executive agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form or media requested by Catalent) of all Company Works. The
records will be available to and remain the sole property and intellectual property of Catalent at all times.
(iii) Executive shall take all requested actions and execute all requested documents
(including any licenses or assignments required by a government contract) at Catalent’s expense (but without further remuneration) to assist Catalent in validating, maintaining, protecting, enforcing, perfecting, recording, patenting or
registering any of Catalent’s rights in the Company Works. If Catalent is unable for any other reason to secure Executive’s signature on any document for this purpose, then Executive hereby irrevocably designates and appoints Catalent and
its duly authorized officers and agents as Executive’s agent and attorney in fact, to act for and in Executive’s behalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.
(iv) Executive shall not improperly use for the benefit of, bring to any premises of, divulge, disclose, communicate,
reveal, transfer or provide access to, or share with Catalent any confidential, proprietary or non public information or intellectual property relating to a former employer or other third party without the prior written permission of such third
party. Executive shall comply with all relevant policies and guidelines of Catalent, including regarding the protection of confidential information and intellectual property and potential conflicts of interest (the “
Company
Policies
”). Executive acknowledges that Catalent may amend any such policies and guidelines from time to time, and that Executive remains at all times bound by their most current version.
c. The provisions of this Section 9 shall survive the termination of Executive’s employment for any reason.
10.
Specific Performance
. Executive acknowledges and agrees that Catalent’s remedies at law for a breach or threatened breach
of any of the provisions of Section 8 or Section 9 would be inadequate and Catalent would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the event of such
a breach or threatened breach, in addition to any remedies at law, Catalent, without posting any bond, shall be entitled to (x) obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available and (y) cease making any payments or providing any benefit to the extent provided for in Sections 7(c) and 7(d).
11.
Miscellaneous
.
a.
Governing Law
. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws principles thereof.
b.
Arbitration
. Except as otherwise provided in Section 10 of this Agreement, any controversy, dispute or claim arising out
of, in connection with, or in relation to, the interpretation, performance or breach of this Agreement, its Exhibits or the Management Equity Subscription Agreement, including, without limitation, the validity, scope and enforceability of this
Section, may at the election of either Party, be solely and finally settled by arbitration conducted in New York, New York, by and in accordance with the then existing rules for commercial arbitration of the American Arbitration Association, or any
successor organization and with the Expedited Procedures thereof (collectively, the “
Rules
”). Catalent
shall select one arbitrator, Executive shall select one arbitrator and the two arbitrators so designated shall select a third arbitrator; provided that such arbitrators shall be experienced in
deciding cases concerning the matter which is the subject of the dispute. Each of the Parties further agrees that the determination of the arbitrators shall be by reasoned award and that the arbitrators shall apply the substantive laws of the State
of Delaware. Either of the Parties may demand arbitration by written notice to the others and to the Arbitrator set forth in this Section 11(b) (“
Demand for Arbitration
”). Each of the Parties agrees that if possible, the award
shall be made in writing no more than thirty (30) days following the end of the proceeding. Any award rendered by the arbitrators shall be final and binding and judgment may be entered on it in any court of competent jurisdiction sitting in the
State of Delaware. Each of the Parties hereto agrees to treat as confidential the results of any arbitration (including, without limitation, any findings of fact and/or law made by the arbitrator) and not to disclose such results to any unauthorized
person. The Parties intend that this agreement to arbitrate be valid, enforceable and irrevocable. In the event of any arbitration with regard to this Agreement, each Party shall pay its own legal fees and expenses.
c.
Entire Agreement/Amendments
. This Agreement, together with its Exhibits contains the entire understanding of the Parties with
respect to the employment of Executive by Catalent and shall be binding on the Parties as of the Effective Date. There are no restrictions, agreements, promises, warranties, covenants or undertakings between the Parties with respect to the subject
matter herein other than those expressly set forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the Parties hereto.
d.
No Waiver
. The failure of a Party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such Party’s rights or deprive such Party
of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. No provision of this Agreement may be waived or discharged unless such waiver or discharge is agreed to in writing, signed by the Party against
whom the waiver or discharge is being enforced, and which specifically references the provision being waived or discharged. No waiver by any Party hereto at any time of any breach by any other Party or compliance with any condition or provision of
this Agreement to be performed by such other Party will be deemed to be a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
e.
Severability
. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
f.
Assignment
. This Agreement, and all of Executive’s rights and duties hereunder, shall not be assignable or delegable by Executive other than rights that may be transferred by
Executive’s will or by the laws of descent and distribution. Any purported assignment or delegation by Executive in violation of the foregoing shall be null and void
ab initio
and of no force and effect. This Agreement may be assigned by
Catalent to a person or entity which is an affiliate or a successor in interest to substantially all of the business operations of Catalent without the written consent of Executive. Upon such assignment, the rights and
obligations of Catalent hereunder shall become the rights and obligations of such affiliate or successor person or entity.
g.
Set Off; Mitigation
. Catalent’s obligation to pay Executive the amounts provided and to make the arrangements provided
hereunder shall be subject to setoff, counterclaim or recoupment of amounts owed by Executive to Catalent or any of its affiliates. Executive shall not be required to mitigate the amount of any payment provided for pursuant to this Agreement by
seeking other employment. Catalent’s obligation to make the payments and provide the benefits required under Section 7 hereof shall not be reduced or otherwise affected by any compensation or benefits paid or provided to Executive as a
result of any other employment (except to the extent otherwise provided in Section 7(c)(ii)(D) or Section 7(d)(ii)(C) with respect to the time when Catalent’s obligation to provide continued group health coverage ceases).
h.
Compliance with Section 409A of the Code
. This Agreement is intended to comply with Section 409A of the Internal
Revenue Code of 1986, as amended (the “
Code
”) and will be interpreted accordingly. References under this Agreement to Executive’s termination of employment shall be deemed to refer to the date upon which Executive has
experienced a “separation from service” within the meaning of Section 409A of the Code. Notwithstanding anything herein to the contrary, (i) if at the time of Executive’s termination of employment with Catalent and its
affiliates Executive is a “specified employee” as defined in Section 409A of the Code (and any related regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable
hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then Catalent will defer the commencement of the payment of any such payments or benefits
hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) until the date that is six months following Executive’s termination of employment with Catalent (or the earliest date as is permitted under
Section 409A of the Code), at which point all payments deferred pursuant to this Section 11(h) shall be paid to Executive in a lump sum and (ii) if any other payments of money or other benefits due to Executive hereunder could cause
the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or
otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. To the extent any reimbursements or in-kind benefits due to
Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treasury Regulation
Section 1.409A-3(i)(1)(iv). For purposes of Section 409A of the Code, each payment made under this Agreement will be designated as a “separate payment” within the meaning of Section 409A of the Code. Catalent shall consult
with Executive in good faith regarding the implementation of the provisions of this Section 11(h); provided that neither Catalent nor any of its employees or representatives shall have any liability to Executive with respect to thereto.
i.
Successors; Binding Agreement
. This Agreement shall inure to the benefit of and be binding upon personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. In the event of Executive’s death while any
payment, benefit or entitlement is due to Executive under this Agreement or any other agreement between or among Executive and Catalent (or any of its affiliates), except as may otherwise be
prohibited by the terms of such other agreement, such payment, benefit or entitlement shall be paid or provided to Executive’s designated beneficiary (or if Executive has not designated a beneficiary, to his estate).
j.
Notice
. For the purpose of this Agreement, notices, consents which are explicitly required to be in writing hereunder and all
other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days after it has been mailed by United States registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth below in this Agreement, or to such other address as any Party may have furnished to the other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
If to Catalent:
14 Schoolhouse Road
Somerset, NJ 08873
Attention: General Counsel
If to Executive:
To the most recent address of Executive set forth in the
personnel records of Catalent
k.
Executive Representation
. Executive hereby represents to Catalent that the execution
and delivery of this Agreement by Executive and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement, separation agreement or other
agreement or policy to which Executive is a party or otherwise bound.
l.
Prior Agreements
. This Agreement supersedes
all prior agreements and understandings (including the Offer Letter, that certain severance agreement, dated February 29, 2008, by and between the Executive and Catalent and verbal agreements, but not the equity or equity-based agreements)
between Executive and Catalent and/or any of its affiliates regarding the terms and conditions of Executive’s employment with Catalent. In the event of any conflict between any provision of this Agreement, including Exhibit A, and any other
provision of any plan, policy, program, arrangement or other agreement of Catalent or any of its subsidiaries or affiliates, this Agreement (or such exhibit) shall control.
m.
Further Assurances
. The Parties shall, with reasonable diligence, do all things and provide all reasonable assurances as may be required to complete the transactions contemplated by this
Agreement, and each Party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to give effect to this Agreement and carry out its provisions.
n.
Cooperation
. If and to the extent requested by Catalent, Executive shall provide Executive’s reasonable cooperation in
connection with any action or proceeding (or any appeal from any action or proceeding) which relates to events occurring during Executive’s employment hereunder relating to Catalent and of which he has knowledge (or reasonably should have had
knowledge). This provision shall survive any termination of this Agreement.
o.
Survivability
. Except as otherwise
expressly set forth in this Agreement, upon the expiration of the Employment Term, the respective rights and obligations of the Parties shall survive such expiration to the extent necessary to carry out the intentions of the Parties as embodied in
the rights (such as vested rights) and obligations of the Parties under this Agreement.
p.
Withholding Taxes
.
Catalent may withhold from any amounts payable under this Agreement such Federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
q.
Legal Fees
. Executive shall be entitled to reimbursement by Catalent for the
reasonable legal fees and expenses incurred in connection with his acceptance of Catalent’s offer of employment hereunder and the review of this Agreement, its Exhibits and the Management Equity Subscription Agreement, subject to
(x) receiving customary back-up documentation regarding such fees and expenses and (y) and aggregate cap of $12,000. Reimbursement shall be made within thirty (30) days after receipt of documentation reasonably acceptable to Catalent,
but in no event later than the last day of the taxable year following the taxable year in which the expenses were incurred.
r.
Counterparts
. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the day and
year first above written.
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CATALENT PHARMA SOLUTIONS, INC.
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MATTHEW WALSH
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/s/ John Chiminski
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/s/ Matthew Walsh
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By: John Chiminski
Title:
Agreed to and acknowledged by with respect to
Section 5(c):
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PTS HOLDINGS CORP.
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/s/ John Chiminski
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By:
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Title:
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EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
This Release and Waiver of Claims
(“
Release
”) is entered into as of this day of , 20 , by and
between Catalent Pharma Solutions, Inc. (“
Catalent
”) and Matthew Walsh (“
Executive
”).
The
Executive and Catalent agree as follows:
1. The employment relationship between Executive and Catalent and its subsidiaries
and affiliates, as applicable, terminated on
(the
“
Termination Date
”).
2. In accordance with the employment agreement, effective as of September 26,
2011, between Executive and Catalent (the “
Employment Agreement
”), Executive is entitled to receive certain payments and benefits after the Termination Date.
3. In consideration of the above, the sufficiency of which Executive hereby acknowledges, Executive, on behalf of Executive and Executive’s heirs, executors and assigns, hereby releases and forever
discharges Catalent and its members, parents, affiliates, subsidiaries, divisions, any and all current and former directors, officers, employees, agents, and contractors and their heirs and assigns, and any and all employee pension benefit or
welfare benefit plans of Catalent, including current and former trustees and administrators of such employee pension benefit and welfare benefit plans (the “
Released Parties
”), from all claims, charges, or demands, in law or in
equity, whether known or unknown, which may have existed or which may now exist from the beginning of time to the date of this Release, including, without limitation, any claims Executive may have arising from or relating to Executive’s
employment or termination from employment with Catalent, including a release of any rights or claims Executive may have under Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991 (which prohibits discrimination in
employment based upon race, color, sex, religion, and national origin); the Americans with Disabilities Act of 1990, as amended, and the Rehabilitation Act of 1973 (which prohibits discrimination based upon disability); the Family and Medical Leave
Act of 1993 (which prohibits discrimination based on requesting or taking a family or medical leave); Section 1981 of the Civil Rights Act of 1866 (which prohibits discrimination based upon race); Section 1985(3) of the Civil Rights Act of
1871 (which prohibits conspiracies to discriminate); the Employee Retirement Income Security Act of 1974, as amended (which prohibits discrimination with regard to benefits); the Fair Labor Standards Act, as amended, 29 U.S.C. Section 201
et. seq
.; any other federal, state or local laws against discrimination; or any other federal, state, or local statute, or common law relating to employment, wages, hours, or any other terms and conditions of employment. This includes a
release by Executive of any and all claims or rights arising under contract, covenant, public policy, tort or otherwise.
4.
Executive acknowledges that Executive is waiving and releasing any rights that Executive may have under the Age Discrimination in Employment Act of 1967, as amended (“
ADEA
”) and that this Release is knowing and voluntary. Executive
and Catalent agree that this Release does not apply to any rights or claims that may arise under the ADEA after the
effective date of this Agreement. Executive acknowledges that the consideration given for this Release is in addition to anything of value to which Executive is already entitled. Executive
further acknowledges that Executive has been advised by this writing that: (i) Executive should consult with an attorney prior to executing this Release; (ii) Executive has at least twenty-one (21) days within which to consider this
Release, although Executive may, at Executive’s discretion, sign and return this Release at an earlier time; (iii) for a period of 7 days following the execution of this Release in duplicate originals, Executive may revoke this Release,
and this Release shall not become effective or enforceable, and Catalent nor any other person is obligated to provide any benefits to Executive until the revocation period has expired; and (iv) nothing in this Release prevents or precludes
Executive from challenging or seeking a determination in good faith of the validity of this Release under the ADEA, nor does it impose any condition precedent, penalties or costs for doing so, unless specifically authorized by federal law. If
Executive has not returned the signed Release within the time permitted in the Employment Agreement, then the offer of payments and benefits set forth in the Employment Agreement will expire by its own terms at such time.
5. This Release does not release the Released Parties from (i) any obligations due to Executive under the Employment Agreement or
under this Release, (ii) any rights Executive has to indemnification, reimbursement of expenses by Catalent under the Employment Agreement or otherwise or coverage under directors’ and officers’ liabilities insurance policies,
(iii) any vested rights Executive has under any employee pension benefit and welfare benefit plans of Catalent in which he participated, or (iv) any vested awards (or awards which may vest) which Executive has under any equity,
equity-based, profits interest, stock option or similar plans, agreements and/or notices, which awards shall be subject to all the terms and conditions of such documents.
6. This Release is not an admission by the Released Parties of any wrongdoing, liability or violation of law.
7. Executive waives any right to reinstatement or future employment with Catalent following Executive’s separation from Catalent on the Termination Date.
8. Executive agrees to refrain from making any statement, oral or written, which disparages the relationships between Catalent and its
subsidiaries and affiliates and Catalent and its subsidiaries’ employees, customers, suppliers and/or others. Notwithstanding the foregoing, Executive shall be permitted to respond to incorrect, disparaging or derogatory statements about him to
the extent reasonably necessary to correct or refute such statements or to make any truthful statement to the extent necessary in connection with any arbitration or litigation involving any agreement between Executive and Catalent or any of its
subsidiaries or as required by law or by any court, arbitrator, or administrative or legislative body with apparent or actual jurisdiction to order him to disclose or make accessible any information.
9. Executive shall continue to be bound by Sections 8, 9 and 11(n) of the Employment Agreement.
10. Executive shall promptly return all property in Executive’s possession of Catalent and its subsidiaries and affiliates,
including, but not limited to, keys, credit cards, cellular phones, computer equipment, software and peripherals and originals or copies of books, records,
or other information pertaining to Catalent or any of its subsidiaries’ or affiliates’ businesses. In addition, Executive shall promptly return all electronic documents or records
relating to Catalent or any of its subsidiaries or affiliates that Executive may have saved to any such cellular phone, laptop computer or other electronic or storage device, whether business or personal, including any PowerPoint or other
presentation stored in hard copy or electronically. Further, if Executive stored any information relating to Catalent on a personal computer or other storage device, Executive shall permanently delete all such information; provided, however, that,
prior to deleting that information, Executive shall print out one copy and provide it to Catalent. Nothing herein shall require Executive to return property, documents or information he is permitted to retain under Section 9 of the Employment
Agreement.
11. This Release shall be governed by and construed in accordance with the laws of the State of Delaware, without
reference to the principles of conflict of laws. Exclusive jurisdiction with respect to any legal proceeding brought concerning any subject matter contained in this Release shall be settled in the manner provided in the Employment Agreement.
12. This Release represents the complete agreement between Executive and Catalent concerning the subject matter in this
Release and supersedes all prior agreements or understandings, written or oral. This Release may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal
representatives.
13. Each of the sections contained in this Release shall be enforceable independently of every other section
in this Release, and the invalidity or unenforceability of any section shall not invalidate or render unenforceable any other section contained in this Release.
14.
The Executive acknowledges that Executive has carefully read and understands this Release, that Executive has the right to consult an attorney with respect to its provisions and that this Release
has been entered into voluntarily. Executive acknowledges that no representation, statement, promise, inducement, threat or suggestion has been made by any of the Released Parties to influence Executive to sign this Release except such statements as
are expressly set forth herein or in the Employment Agreement.
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The parties to this Release have executed this Release as of the day and year first written
above.
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CATALENT PHARMA SOLUTIONS, INC.
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MATTHEW WALSH
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By:
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Title:
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Exhibit B
2007 PTS HOLDINGS CORP.
STOCK INCENTIVE PLAN
FORM OF
RESTRICTED STOCK UNIT AGREEMENT
THIS RESTRICTED STOCK UNIT AGREEMENT (the “
Agreement
”) is made effective as of
[ ] (the “
Date of Grant
”), by and between PTS Holdings Corp.
(together with its successors and assigns, the “
Company
”) and Matthew Walsh (the “
Participant
”).
R
E
C
I
T
A
L
S
:
WHEREAS, the
Company has adopted the Plan (as defined below), the terms of which are hereby incorporated by reference and made a part of this Agreement; and
WHEREAS, the Committee (as defined in the Plan) has determined that it would be in the best interests of the Company and its stockholders to grant the Restricted Stock Units (as defined below) provided
for herein to the Participant pursuant to the Plan and the terms set forth herein.
NOW, THEREFORE, in consideration of the
mutual covenants hereinafter set forth, the parties agree as follows:
Definitions
. Any capitalized terms not
otherwise defined herein shall have the same meaning as such terms are defined in the Plan.
s. “
409A Change of
Control
” means a change in the ownership or effective control of a corporation or a change in the ownership of a substantial portion of the assets of a corporation, in each case, within the meaning of Section 409A of the Code.
t. “
Catalent
” means Catalent Pharma Solutions, Inc. together with its successors and assigns.
u. “
Effective Date
” shall have the same meaning as such term is defined in the Employment Agreement.
v. “
Employment Agreement
” means the employment agreement entered into by and between Catalent and the Participant,
effective as of September 26, 2011, as it may be amended or supplemented from time to time.
w. “
Employment Term
” shall have the same meaning as such term is defined in
the Employment Agreement.
x. “
Plan
” means the 2007 PTS Holdings Corp. Stock Incentive Plan, as it may be
amended or supplemented from time to time.
y. “
Restricted Stock Unit
” means a notional unit representing the
unfunded, unsecured right to receive one Share on the Settlement Date.
z. “
Settlement Date
” means the
earlier to occur of (i) [ ] or (ii) the date of a Change of Control which also satisfies the definition of a 409A Change
of Control.
aa. “
Securityholders Agreement
” means the Securityholders Agreement dated as of May 7, 2007
among the Company and the other parties thereto, as it may be amended or supplemented from time to time.
bb.
“
Subscription Agreement
” means the Amended and Restated Management Equity Subscription Agreement, effective as of October , 2011, by and between the Company and the Participant, as it may be amended or
supplemented from time to time.
Grant and Vesting of Restricted Stock Units
.
cc.
Grant
. Subject to the terms and conditions of the Plan and the additional terms set forth in this Agreement, the Company
hereby grants to the Participant 500 Restricted Stock Units, subject to adjustment as set forth in the Plan.
dd.
Vesting.
Subject to the Participant’s continued Employment with Catalent through the applicable vesting date, the Restricted Stock Units shall vest as follows: (i) 167 of the Shares subject to such Restricted Stock Units
shall vest on the first anniversary of the Effective Date; (ii)166 of the Shares subject to such Restricted Stock Units shall vest on the second anniversary of the Effective Date; and (iii) 166 of the Shares subject to such Restricted Stock
Units shall be vest on the third anniversary of the Effective Date.
ee. Notwithstanding the foregoing, in the event of any
Change of Control that occurs during the Employment Term, the Restricted Stock Units shall become fully vested as of the Change of Control.
12.
Termination of Employment
. In the event of any termination of the Participant’s Employment for any reason, all then unvested Restricted Stock Units shall be forfeited by the
Participant without consideration as of the date of such termination, and the Participant shall have no further rights with respect thereto.
13.
Settlement of the Restricted Stock Units
. On the Settlement Date, the Company shall distribute to the Participant a number of Shares equal to the number of Restricted Stock Units that
become vested in accordance with Section 2 hereof.
14.
No Dividend Equivalents
.
Unless and until the
Participant is the record holder of the Shares subject to the Restricted Stock Units, he is not entitled to the payment of any
dividends (or dividend equivalents) with respect to the Restricted Stock Units or the Shares subject thereto.
15.
Limitation on Obligations
. The Company’s obligation with respect to the Restricted Stock Units granted hereunder is limited solely to the delivery to the Participant of Shares on
the date when such Shares are due to be delivered hereunder, and in no way shall the Company become obligated to pay cash in respect of such obligation, unless as otherwise provided for herein. The Restricted Stock Units granted hereunder shall not
be secured by any specific assets of the Company or any of its Subsidiaries, nor shall any assets of the Company or any of its Subsidiaries be designated as attributable or allocated to the satisfaction of the Company’s obligations under this
Agreement.
16.
No Right to Continued Employment
. Neither the Plan nor this Agreement shall be construed as
giving the Participant the right to be retained in the employ of, or in any consulting relationship to, the Company or any Affiliate. Further, the Company or any Affiliate may at any time dismiss the Participant or discontinue any consulting
relationship, free from any liability or any claim under the Plan or this Agreement, except as otherwise expressly provided herein.
17.
Legend on Certificates
. The certificates representing the Shares issued following the settlement of the vested Restricted Stock Units shall be subject to such stop transfer orders and
other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which such Shares are listed or quoted or market to which the
Shares are admitted for trading and, any applicable federal or state or any other applicable laws and the Company’s Certificate of Incorporation and Bylaws, and the Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
18.
Transferability
. A Restricted Stock Unit may not be
assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant otherwise than by will or by the laws of descent and distribution, and any such purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate;
provided
that the designation of a beneficiary or transfer via will shall not constitute an assignment, alienation, pledge, attachment, sale,
transfer or encumbrance. No such permitted transfer of a Restricted Stock Unit to heirs or legatees of the Participant shall be effective to bind the Company unless the Committee shall have been furnished with written notice thereof and a copy of
such evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions thereof. For the avoidance of doubt, upon the Participant’s death, any
Restricted Stock Units vesting in accordance with this Agreement shall be delivered on the Settlement Date to the Participant’s designated beneficiary or beneficiaries or, if no such beneficiary is so designated, to his estate.
19.
Withholding
. Upon vesting of the Restricted Stock Units in accordance with Section 2 above, the Company will be
required to withhold the FICA and medicare withholding taxes due with respect to such vesting. In addition, it shall be a condition of the obligation of the Company upon delivery of Shares to the Participant pursuant to Section 4 above
that the Participant pay to the Company such amount as may be requested by the Company for the purpose of satisfying any liability for any Federal, state or local income or other taxes required
by law to be withheld with respect to such Shares. The Company shall be authorized to take such action as may be necessary, in the opinion of the Company’s counsel, to satisfy the obligations for payment of the minimum amount of any such taxes.
The Participant is hereby advised to seek his own tax counsel regarding the taxation of the grant of Restricted Stock Units made hereunder.
20.
Adjustments Upon Certain Events
. The Committee shall make certain substitutions or adjustments to any Restricted Stock Units subject to this Agreement pursuant to Section 9(a) of
the Plan.
21.
Securities Laws
. Upon the acquisition of any Shares following settlement of a Restricted Stock
Unit, the Participant will make or enter into such written representations, warranties and agreements as the Committee may reasonably request in order to comply with applicable securities laws or with this Agreement.
22.
Rights as Stockholder
. The Participant shall not have any rights of a stockholder of the Company as a result of the
grant of Restricted Stock Units hereunder unless and until the Participant receives Shares pursuant to Section 4 above.
23.
Notice
.
Any notice under this Agreement shall be addressed to the Company in care of the General Counsel, addressed to
the principal executive office of the Company and to the Participant at the address appearing in the personnel records of the Company for the Participant or to either party at such other address as either party hereto may hereafter designate in
writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
24.
Governing
Law
.
This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof.
25.
Restricted Stock Units Subject to Plan, Securityholders Agreement and Subscription Agreement
. By entering into this
Agreement the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan, the Securityholders Agreement and the Subscription Agreement. A Restricted Stock Unit and the Shares received upon settlement of a
Restricted Stock Unit are subject to the Plan, the Securityholders Agreement and the Subscription Agreement. The terms and provisions of the Plan, the Securityholders Agreement and the Subscription Agreement, as each may be amended from time to time
are hereby incorporated by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the Securityholders Agreement or the Subscription Agreement, the applicable terms and provisions of
the Plan, the Securityholders Agreement or the Subscription Agreement will govern and prevail. In the event of a conflict between any term or provision of the Plan and any term or provision of the Securityholders Agreement or the Subscription
Agreement, the applicable terms and provisions of the Securityholders Agreement or the Subscription Agreement, as applicable, will govern and prevail.
26.
Amendment
. The Committee may waive any conditions or rights under, amend
any terms of, or alter, suspend, discontinue, cancel or terminate this Agreement, but no such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination shall adversely affect the rights of the Participant hereunder
without the written consent of the Participant.
27.
Compliance with Section 409A
. This Agreement is
intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “
Code
”) and will be interpreted accordingly. References under this Agreement to the Participant’s termination of employment shall
be deemed to refer to the date upon which the Participant has experienced a “separation from service” within the meaning of Section 409A of the Code. Notwithstanding anything herein to the contrary, (i) if at the time of the
Participant’s termination of employment with the Company the Participant is a “specified employee” as defined in Section 409A of the Code and the deferral of the commencement of any payments or benefits otherwise payable
hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or
benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to the Participant) until the date that is six months following the Participant’s termination of employment with the Company (or the earliest
date as is permitted under Section 409A of the Code) and (ii) if any other payments of money or other benefits due to the Participant hereunder could cause the application of an accelerated or additional tax under Section 409A of the
Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in
a manner, determined by the Board, that does not cause such an accelerated or additional tax. The Company shall consult with the Participant in good faith regarding the implementation of the provisions of this Section 18; provided that neither
the Company nor any of its employees or representatives shall have any liability to the Participant with respect to thereto.
28.
Dispute Resolution
. Any controversy, dispute or claim relating to this Agreement shall be settled in accordance with
Section 11(b) of the Employment Agreement.
29.
Signature in Counterparts
. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
* * *
[
Signatures to appear on the following page
]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
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PTS HOLDINGS CORP.
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By:
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Name:
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Title:
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PARTICIPANT
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Exhibit C
2007 PTS HOLDINGS CORP.
STOCK INCENTIVE PLAN
FORM OF
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (the “
Agreement
”), is made effective as of
(the “
Date of Grant
”), between PTS Holdings Corp. (the “
Company
”) and the individual named on the signature page hereto (the “
Participant
”).
R
E
C
I
T
A
L
S
:
WHEREAS, the Company has adopted the Plan (as defined below), the terms of which are hereby incorporated by reference and made a part of
this Agreement; and
WHEREAS, the Committee (as defined in the Plan) has determined that it would be in the best interests of
the Company and its stockholders to grant the Options (as defined below) provided for herein to the Participant pursuant to the Plan and the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
30.
Definitions
. Whenever the following terms are used in this Agreement, they shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the same meanings
as in the Plan.
a.
Cause
: “Cause” shall mean “Cause” as such term may be defined in any
employment agreement in effect at the time of the Participant’s termination of Employment between the Participant and the Company or its Subsidiaries or Affiliates, or, if there is no such employment agreement or such term is not defined
therein, “Cause” shall mean (i) the Participant’s willful failure to perform duties which is not cured within 15 days following written notice, (ii) the Participant’s conviction or confessing to or becoming subject to
proceedings that provide a reasonable basis for the Company to believe that the Participant has engaged in a (x) felony, (y) crime involving dishonesty, or (z) crime involving moral turpitude and which is demonstrably injurious to the
Company and its Subsidiaries, (iii) the Participant’s willful malfeasance or misconduct which is demonstrably injurious to the Company and its Subsidiaries, or (iv) breach by the Participant of the material terms of any agreement with
the Company or its Subsidiaries, including, without limitation, any non-competition, non-solicitation or confidentiality provisions thereof. For purposes of this definition, no act or failure to act shall be deemed “willful” unless
effected by the Participant not in good faith.
b.
EBITDA Option
: An Option with respect to which the terms and
conditions are set forth in Section 3(b) of this Agreement.
c.
Expiration Date
: The tenth anniversary of the Date of Grant.
d.
Exit Option
: Collectively, the Tier I Exit Option and the Tier II Exit Option.
e.
Fiscal Year
: Each fiscal year of the Company (which, for the avoidance of doubt, ends on or about
June 30
th
of any given year).
f.
Good Reason
: “Good Reason” shall mean “Good Reason” as such term may be defined in any employment
agreement in effect at the time of the Participant’s termination of Employment between the Participant and the Company or its Subsidiaries or Affiliates, or, if there is no such employment agreement or such term is not defined therein,
“Good Reason” shall mean, without the Participant’s consent, (i) a substantial diminution in the Participant’s position or duties, adverse change in reporting lines, or assignment of duties materially inconsistent with his
position, (ii) any reduction in the Participant’s base salary, (iii) failure of the Company to pay compensation or benefits when due, (iv) moving the Participant’s then-principal business location more than 50 miles or
(v) failure to provide the Participant with an annual bonus opportunity at the same level as established for the Participant in connection with his commencement of employment with the Company and its Subsidiaries or Affiliates, as applicable,
in each case, which is not cured within 30 days following the Company’s receipt of written notice from the Participant describing the event constituting Good Reason.
g.
Options
: Collectively, the Time Option, the EBITDA Option, and the Exit Option to purchase Shares granted under this Agreement.
h.
Plan
: The 2007 PTS Holdings Corp. Stock Incentive Plan, as it may be amended or supplemented from time to time.
i.
Securityholders Agreement
: The Securityholders Agreement dated as of May 7, 2007 among the Company and
the other parties thereto, as it may be amended or supplemented from time to time.
j.
Subscription Agreement
:
The Amended and Restated Subscription Agreement, effective as of , 2011, by and between the Company and the Participant, as it
may be amended or supplemented from time to time.
k.
Tier I Exit Option
: An Option with respect to which the
terms and conditions are set forth in Section 3(c) of this Agreement.
l.
Tier II Exit Option
: An Option
with respect to which the terms and conditions are set forth in Section 3(d) of this Agreement.
m.
Time
Option
: An Option with respect to which the terms and conditions are set forth in Section 3(a) of this Agreement.
n.
Vested Portion
: At any time, the portion of an Option which has become vested, as described in Section 3 of this
Agreement.
o.
Vesting Reference Date
: [ ]
31.
Grant of Options.
The Company hereby grants to the Participant the right and
option to purchase, on the terms and conditions hereinafter set forth, all or any part of the number of Shares subject to the Time Option, the EBITDA Option, and the Exit Option set forth on Schedule A attached hereto, subject to adjustment as set
forth in the Plan. The Option Price shall be $[ ] per Share. The Options are intended to be nonqualified stock options, and are not intended to be treated as an option that complies with Section 422 of the Code.
32.
Vesting of the Options
.
a.
Vesting of the Time Option
. Subject to the Participant’s continued Employment through the applicable vesting date, the Time Option shall vest and become exercisable with respect to
thirty-three and one-third percent (33 1/3%) of the Shares subject to such Time Option on each of the first three anniversaries of the Vesting Reference Date. Notwithstanding the foregoing, in the event of a Change in Control, the Time Option shall,
to the extent not then vested or previously forfeited or cancelled, become fully vested and exercisable.
b.
Vesting of the
EBITDA Option
.
(i)
In General
. Subject to the Participant’s continued Employment through the
applicable vesting date, the EBITDA Option shall vest and become exercisable with respect to thirty-three and one-third percent (33 1/3%) of the Shares subject to the EBITDA Option on each of the first three anniversaries of the Vesting Reference
Date (each such anniversary, an “
EBITDA Option Performance Vesting Date
”) if, as of the last day of the Fiscal Year ending immediately prior to the applicable EBITDA Option Performance Vesting Date, the EBITDA goal set forth
on Schedule B (the “
EBITDA Goal
”) for the applicable Fiscal Year is achieved or exceeded.
(ii)
Catch-Up
. Notwithstanding the foregoing, subject to the Participant’s continued Employment through the applicable vesting date, if the portion of the EBITDA Option that is scheduled to
vest in respect of a given Fiscal Year does not vest because the EBITDA Goal is not achieved or exceeded in respect of such Fiscal Year (any such Fiscal Year, a “
Missed Year
”), then the portion of the EBITDA Option that was
eligible to vest but failed to vest due to the failure to achieve or exceed the EBITDA Goal in such Missed Year shall nevertheless vest and become exercisable
if
and when the Cumulative EBITDA Goal set forth on Schedule B for any completed
Fiscal Year that is subsequent to any Missed Year (any such Fiscal Year, an “
Achieved Year
”) is achieved or exceeded, with vesting to occur on the EBITDA Option Performance Vesting Date that occurs immediately following the
last day of the Achieved Year.
Such EBITDA Goals shall be adjusted in good faith to reflect acquisitions, divestitures and
other similar corporate transactions that would affect the EBITDA Goals.
c.
Vesting of the Tier I Exit Option
. Subject
to the Participant’s continued Employment through the applicable vesting date, the Tier I Exit Option shall vest on the date, if any, when either (i) Blackstone shall have received cash proceeds or marketable securities from the sale of
its investment in the Company aggregating in excess of 2.5 times the amount of its initial investment in the Company (such initial investment equaling $914,680,907.54) (the
“
Initial Investment
”) or (ii) Blackstone shall have received a cash Internal Rate of Return of at least 20% on its Initial Investment. For purposes of this Agreement,
“
Internal Rate of Return
” means, as of a given date, the internal rate of return compounded annually from April 10, 2007 with respect to the Initial Investment). Notwithstanding the foregoing, subject to the Participant’s
continued Employment through the applicable vesting date, in the event that the 2.5 multiple hurdle or the 20% Internal Rate of Return hurdle (each as described in this Section 3(c)) is not met, but the 1.75 multiple hurdle or the 15% Internal
Rate of Return hurdle (each as described below) is met, the Tier I Exit Option shall vest based on straight line interpolation between the two points.
d.
Vesting of the Tier II Exit Option
. Subject to the Participant’s continued Employment through the applicable vesting date, the Tier II Exit Option shall vest on the date, if any, when
either (i) Blackstone shall have received cash proceeds or marketable securities from the sale of its investment in the Company aggregating in excess of 1.75 times the Initial Investment or (ii) Blackstone shall have received a cash
Internal Rate of Return of at least 15% on its Initial Investment.
e.
Termination of Employment
. If the
Participant’s Employment terminates for any reason, the Option, to the extent not then vested and exercisable, shall be immediately canceled by the Company without consideration. Notwithstanding anything to the contrary in this Agreement, in
the event of the termination of the Participant’s Employment (i) by the Company without Cause, (ii) by the Participant for Good Reason, (iii) due to death or Disability or (iv) due to the Company’s election not to
extend the employment term under any employment agreement in effect at the time of the Participant’s termination of Employment between the Participant and the Company, to the extent applicable, the Participant shall be deemed vested in any
portion of the Time Option that would otherwise have vested within 12 months following such termination of Employment.
33.
Exercise of Options.
a.
Period of Exercise
. Subject to the provisions of the Plan and this Agreement, the
Participant may exercise all or any part of the Vested Portion of an Option at any time prior to the Expiration Date. Notwithstanding the foregoing, if the Participant’s Employment terminates prior to the Expiration Date, the Vested Portion of
an Option shall remain exercisable for the period set forth below:
(i)
Death or Disability
. If the
Participant’s Employment is terminated due to the Participant’s death or Disability, the Participant may exercise the Vested Portion of an Option for a period ending on the earlier of (A) one year following such termination of
Employment and (B) the Expiration Date;
(ii)
Termination by the Company Other than for Cause or Due to
Death or Disability
. If the Participant’s Employment is terminated other than by the Company for Cause or due to death or Disability, the Participant may exercise the Vested Portion of an Option that became vested on or prior to the date of
termination for a period ending on the earlier of (A) 90 days following such termination of Employment and (B) the Expiration Date; and
(iii)
Termination by the Company for Cause
. If the Participant’s
Employment is terminated by the Company for Cause, the Vested Portion of an Option shall immediately terminate in full and cease to be exercisable.
b.
Method of Exercise
.
(i) Subject to Section 4(a) of
this Agreement and Section 6(c) of the Plan, the Vested Portion of an Option may be exercised by delivering to the Company at its principal office written notice of intent to so exercise;
provided
that, the Option may be exercised with
respect to whole Shares only. Such notice shall specify the number of Shares for which the Option is being exercised and shall be accompanied by payment in full of the Option Price. The payment of the Option Price may be made at the election of the
Participant (i) in cash or its equivalent (
e.g
., by check), (ii) in Shares having a Fair Market Value equal to the aggregate Option Price for the Shares being purchased and satisfying such other requirements as may be imposed by the
Committee; provided, that such Shares have been held by the Participant for more than six months (or such other period as established from time to time by the Committee in order to avoid adverse accounting treatment applying generally accepted
accounting principles), (iii) partly in cash and partly in such Shares, (iv) if there is a public market for the Shares at such time, to the extent permitted by the Committee and subject to such rules as may be established by the
Committee, through the delivery of irrevocable instructions to a broker to sell Shares obtained upon the exercise of the Option and to deliver promptly to the Company an amount out of the proceeds of such sale equal to the aggregate option price for
the Shares being purchased, or (v) using a net settlement mechanism whereby the number of Shares delivered upon the exercise of the Option will be reduced by a number of Shares that has a Fair Market Value equal to the Option Price, provided
that the Participant tenders cash or its equivalent to pay any applicable withholding taxes. The Participant shall not have any rights to dividends or other rights of a stockholder with respect to Shares subject to an Option until the Participant
has given written notice of exercise of the Option, paid in full for such Shares and, if applicable, has satisfied any other conditions imposed by the Committee pursuant to the Plan.
(ii) Notwithstanding any other provision of the Plan or this Agreement to the contrary, absent an available exemption to
registration or qualification, an Option may not be exercised prior to the completion of any registration or qualification of an Option or the Shares under applicable state and federal securities or other laws, or under any ruling or regulation of
any governmental body or national securities exchange that the Committee shall in its sole discretion determine to be necessary or advisable; provided, that the Company shall use commercially reasonable efforts to take such actions as are necessary
and appropriate to register or qualify the Shares subject to the Option so it may be exercised.
(iii) Upon the
Company’s determination that an Option has been validly exercised as to any of the Shares, the Company shall issue certificates in the Participant’s name for such Shares. However, the Company shall not be liable to the Participant for
damages relating to any delays in issuing the certificates to the Participant, any loss by
the Participant of the certificates, or any mistakes or errors in the issuance of the certificates or in the certificates themselves.
(iv) In the event of the Participant’s death, the Vested Portion of an Option shall remain exercisable by the
Participant’s executor or administrator, or the person or persons to whom the Participant’s rights under this Agreement shall pass by will or by the laws of descent and distribution as the case may be, to the extent set forth in
Section 4(a) of this Agreement. Any heir or legatee of the Participant shall take rights herein granted subject to the terms and conditions hereof.
(v) As a condition to the exercise of any Option evidenced by this Agreement, the Participant shall execute the Securityholders Agreement and the Subscription Agreement.
34.
No Right to Continued Employment
. Neither the Plan nor this Agreement shall be construed as giving the Participant the right
to be retained in the employ of, or in any consulting relationship to, the Company or any Affiliate. Further, the Company or any Affiliate may at any time dismiss the Participant or discontinue any consulting relationship, free from any liability or
any claim under the Plan or this Agreement, except as otherwise expressly provided herein.
35.
Legend on Certificates
.
The certificates representing the Shares purchased by exercise of an Option shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of
the Securities and Exchange Commission, any stock exchange upon which such Shares are listed or quoted or market to which the Shares are admitted for trading and, any applicable federal or state or any other applicable laws and the Company’s
Certificate of Incorporation and Bylaws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
36.
Transferability
. An Option may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant otherwise than by will or by the laws of descent and
distribution, and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate;
provided
that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. No such permitted transfer of an Option to heirs or legatees of the Participant shall be effective to bind the Company unless the Committee shall have been
furnished with written notice thereof and a copy of such evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions thereof. During the
Participant’s lifetime, an Option is exercisable only by the Participant.
37.
Withholding
. The Participant may be
required to pay to the Company or any Affiliate and the Company or its Affiliates shall have the right and are authorized to withhold any applicable withholding taxes in respect of an Option, its exercise, or any payment or transfer under or with
respect to an Option and to take such other action as may be necessary in the opinion of the Committee to satisfy all obligations for the payment of such withholding
taxes. The Participant may elect to pay any or all of such withholding taxes as provided in Section 4 of the Plan.
38.
Securities Laws
. Upon the acquisition of any Shares pursuant to the exercise of an Option, the Participant will make or enter into such written representations, warranties and agreements as the
Committee may reasonably request in order to comply with applicable securities laws or with this Agreement.
39.
Notices
. Any notice under this Agreement shall be addressed to the Company in care of its Chief Financial Officer and a copy to the General Counsel, each copy addressed to the principal executive office of the Company and to the Participant
at the address appearing in the personnel records of the Company for the Participant or to either party at such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon
receipt thereof by the addressee.
40.
Governing Law
. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to conflicts of laws.
41.
Options Subject to Plan, Securityholders
Agreement and Subscription Agreement
. By entering into this Agreement the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan, the Securityholders Agreement and the Subscription Agreement. The
Options and the Shares received upon exercise of an Option are subject to the Plan, the Securityholders Agreement and the Subscription Agreement. For the avoidance of doubt, the Participant further agrees and acknowledges that (x) this
Agreement, in addition to any other stock option agreements previously entered into or to be entered into by the Participant at any time following the date hereof, shall be considered a “Stock Option Agreement” under the Subscription
Agreement and (y) the Options, in addition to any other stock options previously awarded or to be awarded at any time following the date hereof, shall be considered “Options” under the Subscription Agreement. The terms and provisions
of the Plan, the Securityholders Agreement and the Subscription Agreement, as each may be amended from time to time are hereby incorporated by reference. In the event of a conflict between any term or provision contained herein and a term or
provision of the Plan, the Securityholders Agreement or the Subscription Agreement, the applicable terms and provisions of the Plan, the Securityholders Agreement or the Subscription Agreement will govern and prevail. In the event of a conflict
between any term or provision of the Plan and any term or provision of the Securityholders Agreement or the Subscription Agreement, the applicable terms and provisions of the Securityholders Agreement or the Subscription Agreement, as applicable,
will govern and prevail.
42.
Amendment
. The Committee may waive any conditions or rights under, amend any terms of, or
alter, suspend, discontinue, cancel or terminate this Agreement, but no such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination shall materially adversely affect the rights of the Participant hereunder without the
consent of the Participant.
43.
Signature in Counterparts
. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
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PTS HOLDINGS CORP.
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By
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Its
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MATTHEW WALSH
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Exhibit 10.43
AMENDED AND RESTATED
MANAGEMENT EQUITY SUBSCRIPTION AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT EQUITY SUBSCRIPTION AGREEMENT (this “
Agreement
”) is made as of
October 11, 2011 by and between PTS Holdings Corp., a Delaware corporation (together with its successors and assigns, the “
Company
”), and Matthew Walsh (“
Executive
”).
WHEREAS, Executive (i) purchased shares of common stock of the Company (“
Common Stock
”) and (ii) received an
option to purchase shares of Common Stock (the “
Option
”), in each case, as set forth on Exhibit A, pursuant to the terms set forth below and the terms of the Plan (as defined below), the Stock Option Agreement (as defined below),
and the Securityholders Agreement (as defined below);
WHEREAS, in connection therewith, the Company and Executive entered
into that certain Management Equity Subscription Agreement, made as of June 5, 2008 (the “
Prior Agreement
”);
WHEREAS, Executive has been selected by the Company to receive (x) an additional option to purchase shares of Common Stock and (y) restricted stock units, each of which represents the right to
receive one share of Common Stock (the “
RSUs
”), in each case, pursuant to the terms set forth below and the terms of the Plan (as defined below), a stock option agreement, the RSU Agreement (as defined below) and the Securityholders
Agreement;
WHEREAS, on the terms and subject to the conditions hereof, the Company desires to issue and provide to Executive,
the additional option to purchase shares of Common Stock and the RSUs, in each case, as set forth on Exhibit B, as hereinafter set forth; and
WHEREAS, in connection with the foregoing, the parties hereto now desire to (x) amend the Prior Agreement in certain respects effective on and after the date hereof, the effect of which will be that
this Agreement will supersede the Prior Agreement in its entirety on and after the date hereof and (y) restate the Prior Agreement in the form of this Agreement to read in its entirety as follows.
NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions.
1.1
Affiliate
. The term “Affiliate” shall have the meaning set forth in the Plan.
1.2
Agreement
. The term “Agreement” shall have the meaning set forth in the preface.
1.3
Applicable Federal Rate
. The term “Applicable Federal Rate” shall have the meaning set forth in Section 1274 of
the Code.
1.4
Blackstone
. The term “Blackstone” means Blackstone Capital Partners V
L.P. and its Affiliates.
1.5
Board
. The term “Board” means the Company’s Board of Directors.
1.6
Call Notice
. The term “Call Notice” shall have the meaning set forth in Section 4.2(b).
1.7
Catalent
. The term “Catalent” shall mean Catalent Pharma Solutions, Inc., together with its successors and assigns.
1.8
Cause
. The term “Cause” shall have the meaning set forth in the Stock Option Agreement.
1.9
Closing Date
. The term “Closing Date” shall have the meaning set forth in Section 2.1.
1.10
Code
. The term “Code” means the Internal Revenue Code of 1986, as amended.
1.11
Common Stock
. The term “Common Stock” shall have the meaning set forth in the preface.
1.12
Company
. The term “Company” shall have the meaning set forth in the preface.
1.13
Competitive Business
. The term “Competitive Business” shall have the meaning set forth in
Section 6.1(a)(ii)(1).
1.14
Confidential Information
. The term “Confidential Information” shall have
the meaning set forth in Section 6.2.
1.15
Cost
. The term “Cost” means the purchase price per Share, if
any, paid by Executive.
1.16
Disability
. The term “Disability” shall have the meaning set forth in the Plan.
1.17
Employment Agreement
. The term “Employment Agreement” means the employment agreement entered into by
Catalent and Executive, effective as of September 26, 2011, as it may be amended or supplemented from time to time.
1.18
Executive
. The term “Executive” shall have the meaning set forth in the preface.
1.19
Fair Market
Value
. The term “Fair Market Value” shall have the meaning set forth in the Plan.
1.20
Family Group
. The
term “Family Group” shall have the meaning set forth in the Securityholders Agreement.
1.21
Financing
Default
. The term “Financing Default” means an event which would constitute (or with notice or lapse of time or both would constitute) an event of default under any
2
of the financing documents of the Company or its Affiliates from time to time and any restrictive financial covenants contained in the organizational documents of the Company or its Affiliates.
1.22
Lapse Date
. The term “Lapse Date” shall have the meaning set forth in the Securityholders Agreement.
1.23
Option
. The term “Option” shall have the meaning set forth in the preface.
1.24
Put Notice
. The term “Put Notice” shall have the meaning set forth in Section 4.1(b).
1.25
Person
. The term “Person” shall have the meaning set forth in Section 6.1(a)(i).
1.26
Plan
. The term “Plan” means the 2007 PTS Holdings Corp. Stock Incentive Plan, as it may be amended or supplemented
from time to time.
1.27
Purchase Price
. The term “Purchase Price” shall have the meaning set forth in
Section 2.1.
1.28
Restricted Period
. The term “Restricted Period” shall have the meaning set forth in
Section 6.1(a).
1.29
RSU
. The term “RSU” shall have the meaning set forth in the preface.
1.30
RSU Agreement
. The term “RSU Agreement” means the RSU Agreement, dated as of October ,
2011, among Executive and the Company, as it may be amended or supplemented thereafter from time to time.
1.31
RSU
Shares
. The term “RSU Shares” means shares of Common Stock issuable or issued upon settlement of the RSUs.
1.32
Securities Act
. The term “Securities Act” means the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder, as the same may be amended from time to time.
1.33
Securityholders Agreement
. The term “Securityholders Agreement” means the Securityholders Agreement dated as of
May 7, 2007 among the Company and the other parties thereto, as it may be amended or supplemented thereafter from time to time.
1.34
Shares
. The term “Shares” means any shares of Common Stock acquired by Executive, including Shares issuable or issued upon exercise of the Option and RSU Shares.
1.35
Stock Option Agreement
. The term “Stock Option Agreement” means the Stock Option Agreement, dated as of
April 17, 2008, among Executive and the Company, as it may be amended or supplemented thereafter from time to time.
1.36
Subsidiary
. The term “Subsidiary” shall have the meaning set forth in the Plan.
3
1.37
Termination Date
. The term “Termination Date” means the date upon
which Executive’s employment with the Company and its Subsidiaries terminates.
2. Subscription for Shares; Grant of Option and RSUs.
2.1
Purchase of Shares
. Pursuant to the terms and subject to the conditions set forth in this Agreement, Executive
subscribed for and purchased, and the Company issued to Executive, on June 5, 2008 (the “
Closing Date
”), the number of Shares set forth on Exhibit A attached hereto in exchange for the purchase price (the “
Purchase
Price
”) set forth on Exhibit A attached hereto.
2.2
Issuance of Option
. Pursuant to the terms and subject to
the conditions set forth in this Agreement, the Plan and the Stock Option Agreement, as of April 17, 2008, the Company granted to Executive an Option to purchase the number of Shares set forth on Exhibit A attached hereto at an exercise price
per Share equal to the amount set forth on Exhibit A attached hereto.
2.3
Issuance of Option and RSUs
. Pursuant to the
terms and subject to the conditions set forth in this Agreement, the Plan, the stock option agreement and the RSU Agreement, as of October , 2011, the Company shall grant to Executive (x) an additional option to
purchase the number of Shares set forth on Exhibit B attached hereto at an exercise price per Share equal to the amount set forth on Exhibit B attached hereto and (y) a number of RSUs as set forth on Exhibit B attached hereto.
3. Investment Representations and Covenants of Executive.
3.1
Shares Unregistered
. Executive acknowledges and represents that Executive has been advised by the Company that:
(a) the offer and sale of Shares have not been registered under the Securities Act;
(b) the Shares must be held indefinitely and Executive must continue to bear the economic risk of the investment in the Shares unless the offer and sale of the Shares are subsequently registered under the
Securities Act and all applicable state securities laws or an exemption from such registration is available;
(c) there is no
established market for the Shares and it is not anticipated that there will be any public market for the Shares in the foreseeable future;
(d) a restrictive legend in the form set forth below and the legends set forth in Section 7.2 of the Securityholders Agreement shall be placed on the certificates representing the Common Stock:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN REPURCHASE OPTIONS AND OTHER PROVISIONS SET FORTH
IN AN AMENDED AND RESTATED MANAGEMENT EQUITY SUBSCRIPTION AGREEMENT WITH THE ISSUER DATED AS OF OCTOBER ,
4
2011, AS AMENDED AND MODIFIED FROM TIME TO TIME, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE ISSUER’S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE”; and
(e) a notation shall be made in the appropriate records of the Company indicating that the Shares are subject to restrictions on transfer
and, if the Company should at some time in the future engage the services of a securities transfer agent, appropriate stop-transfer instructions will be issued to such transfer agent with respect to the Shares.
3.2
Additional Investment Representations
. Executive represents and warrants that:
(a) Executive’s financial situation is such that Executive can afford to bear the economic risk of holding the Shares for an
indefinite period of time, has adequate means for providing for Executive’s current needs and personal contingencies, and can afford to suffer a complete loss of Executive’s investment in the Shares;
(b) Executive’s knowledge and experience in financial and business matters are such that Executive is capable of evaluating the
merits and risks of the investment in the Shares;
(c) Executive understands that the Shares are a speculative investment
which involves a high degree of risk of loss of Executive’s investment therein, there are substantial restrictions on the transferability of the Shares and, on the Closing Date and for an indefinite period following the Closing Date, there will
be no public market for the Shares and, accordingly, it may not be possible for Executive to liquidate Executive’s investment in case of emergency, if at all;
(d) the terms of this Agreement provide that, with respect to the Shares received upon exercise of any options to purchase shares of Common Stock, including, without limitation, the Option, and RSU Shares
only, if Executive ceases to be an employee of the Company or its Subsidiaries, the Company and its Affiliates have the right to repurchase such Shares at a price which may, under certain circumstances, be less than the Fair Market Value thereof;
(e) Executive understands and has taken cognizance of all the risk factors related to the purchase of the Shares and, other
than as set forth in this Agreement, no representations or warranties have been made to Executive or Executive’s representatives concerning the Shares or the Company or their prospects or other matters;
(f) Executive has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company
and its representatives concerning the Company and its Subsidiaries, the Plan, the Stock Option Agreement, the RSU Agreement, the Securityholders Agreement, the Company’s organizational documents and the terms and conditions of the purchase of
the Shares and to obtain any additional information which Executive deems necessary; and
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(g) all information which Executive has provided to the Company and the Company’s
representatives concerning Executive and Executive’s financial position is complete and correct as of the date of this Agreement.
4.
Certain Sales Upon Termination of Employment.
4.1
Put Option
.
(a) If Executive’s employment with the Company and its Subsidiaries terminates due to the Disability or death of Executive prior to
the Lapse Date, Executive and Executive’s Family Group shall have the right, subject to the provisions of Section 5 hereof, for one year following the later of (x) the Termination Date or (y) the date of receipt of the RSU Shares
and/or the Shares following exercise of the Option, as applicable, to sell to the Company, and the Company shall be required to purchase (subject to the provisions of Section 5 hereof), on one occasion from Executive, all (or any portion) of
Executive’s Shares at a price per Share equal to Fair Market Value (measured as of the purchase date); provided that the exercise of such right may be delayed by the Company to the extent any such delay is necessary to avoid the application of
adverse accounting treatment to the Company.
(b) If Executive or Executive’s Family Group, as applicable, desires to
exercise its option to require the Company to repurchase Shares pursuant to Section 4.1(a), Executive or Executive’s Family Group, as applicable, shall send written notice to the Company setting forth Executive’s or Executive’s
Family Group, as applicable, intention to sell all of his or their Shares, as applicable, pursuant to Section 4.1(a) (the “
Put Notice
”). Subject to the provisions of Section 5, the closing of the purchase shall take place
at the principal office of the Company on a date specified by the Company no later than the 60th day after the giving of such notice.
4.2
Call Option
.
(a) If Executive’s employment with the Company and
its Subsidiaries terminates for any of the reasons set forth in clauses (i) or (ii) below prior to the Lapse Date, the Company shall have the right and option, but not the obligation, to purchase any or all of Executive’s RSU Shares
and Shares acquired following exercise of the Option, in each case, for a period of 181 days (or such longer period as is necessary in order to avoid the application of adverse accounting treatment to the Company) following the later of (x) the
Termination Date or (y) the date of receipt of such Shares, in each case, at a price per Share equal to the applicable purchase price determined as follows:
(i)
Termination for Cause
. If Executive’s employment with Catalent is terminated by Catalent for Cause, the
purchase price per Share will be the lesser of (A) Fair Market Value (measured as of the purchase date) and (B) Cost; or
(ii)
Termination of Employment Other than for Cause
. If Executive’s employment with Catalent terminates for any reason other than by Catalent for Cause, the purchase price per Share will be
Fair Market Value (measured as of the purchase date).
6
(b) If the Company desires to exercise its option to purchase such Shares pursuant to
Section 4.2(a), the Company shall, not later than 181 days following the later of (x) the Termination Date or (y) the date of receipt of such Shares, send written notice to Executive of its intention to purchase such Shares,
specifying the number of Shares to be purchased (the “
Call Notice
”). Subject to the provisions of Section 5, the closing of the purchase shall take place at the principal office of the Company on a date specified by the Company
no later than the 30th day after the giving of the Call Notice.
(c) Notwithstanding the foregoing, if the Company elects not
to exercise its option to purchase such Shares pursuant to this Section 4.2 and Executive’s employment with Catalent terminates for any of the reasons set forth in clauses (a)(i) or (a)(ii) above prior to the Lapse Date, Blackstone may
elect to purchase such Shares on the same terms and conditions set forth in this Section 4.2 by providing written notice to Executive of its intention to purchase such Shares within 30 days after the expiration of the Company’s 181 day
call window following the later of (x) the Termination Date or (y) the date of receipt of the such Shares.
5.
Certain
Limitations on the Company’s Obligations to Purchase Shares
.
5.1
Deferral of Purchases
.
(a) Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to purchase any Shares at any time
pursuant to Section 4.1 or 4.2, regardless of whether it has delivered a Call Notice or received a Put Notice, (i) to the extent that the purchase of such Shares would result in (A) a violation of any law, statute, rule, regulation,
policy, order, writ, injunction, decree or judgment promulgated or entered by any federal, state, local or foreign court or governmental authority applicable to the Company or any of its Subsidiaries or any of its or their property or (B) after
giving effect thereto, a Financing Default, (ii) if immediately prior to such purchase there exists a Financing Default which prohibits such purchase, or (iii) to the extent that there is a lack of available cash on hand of the Company and
no cash is available to the Company. The Company shall, within fifteen (15) days of learning of any such fact, so notify Executive that it is not obligated to purchase hereunder.
(b) Notwithstanding anything to the contrary contained in Section 4.1 or 4.2, provided the Lapse Date has not
occurred, any Shares which Executive or Executive’s Family Group, as applicable, has elected to sell or the Company has elected to purchase, but which in accordance with Section 5.1(a) is not purchased at the applicable time provided in
Section 4.1 or 4.2, shall be purchased by the Company (x) by delivery of a note for the applicable purchase price payable in equal installments of up to three (3) years, bearing interest at the prime lending rate in effect as of the
date of the exercise of the call right or at the applicable Applicable Federal Rate at such time, if greater; provided, however, that the Company shall fully satisfy its obligation under the note sooner if the purchase price is no longer restricted
under Section 5.1(a), with such amount paid to Executive or Executive’s Family Group, as applicable, within fifteen (15) days after the date the prohibition is lifted or (y) if purchase by delivery of a note as described in
clause (x) is not permitted due to the terms of any outstanding Company indebtedness, or otherwise, then, for the applicable purchase price (measured as of the actual purchase date) on or prior to the fifteenth (15
th
) day after such date or dates that the purchase of such Shares
are no longer prohibited under Section 5.1(a) and the Company shall give Executive
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five (5) days’ prior notice of any such purchase. Notwithstanding anything herein to the contrary, prior to the payment of the purchase price under this Section 5.1, Executive or
Executive’s Family Group may withdraw the Shares subject to the put option described in Section 4.1.
5.2
Payment
for Shares
. If at any time the Company elects to purchase any Shares pursuant to Section 4.1 or 4.2, unless otherwise provided for herein, the Company shall pay the purchase price for the Shares it purchases (i) first, by the
cancellation of any indebtedness owing from Executive to the Company or any of its Subsidiaries and (ii) then, by the Company’s delivery of a check or wire transfer of immediately available funds for the remainder of the purchase price, if
any, against delivery of the certificates or other instruments representing the Shares so purchased, duly endorsed.
6. Noncompetition;
Nonsolicitation; Confidentiality.
6.1
Competitive Activity
.
(a) During the period that commenced on the Closing Date and ends on the date that is two (2) years after the date Executive’s
employment with Catalent terminates for any reason (the “
Restricted Period
”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture,
association, corporation or other business organization, entity or enterprise whatsoever (“
Person
”), directly or indirectly, solicit or assist in soliciting in competition with Catalent or any of its subsidiaries, the business of
any client or prospective client:
(i) with whom Executive had personal contact or dealings on behalf of the
Catalent or any of its Subsidiaries during the one year period preceding Executive’s termination of employment;
(ii) with whom employees reporting to Executive have had personal contact or dealings on behalf of Catalent or any of its Subsidiaries during the one year immediately preceding Executive’s
termination of employment; or
(iii) for whom Executive had direct or indirect responsibility during the one
year immediately preceding Executive’s termination of employment.
(b) During the period that commenced on the Closing
Date and for a period of one year following the date Executive ceases to be employed by Catalent for any reason, Executive will not directly or indirectly:
(i) engage in any business that competes with the business of Catalent or any of its Subsidiaries, including, contract services to pharmaceutical, biotechnology and vitamin/mineral supplements
manufacturers related to formulation, analysis manufacturing and packaging and any other product or service of the type developed, manufactured or sold by Catalent or any of its Subsidiaries (including, without limitation, any other business which
Catalent or any of its Subsidiaries have plans to engage in as of the date of Executive’s termination of employment) in any geographical area where Catalent or any of its Subsidiaries conduct business (a “
Competitive
Business
”);
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(1)
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enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive
Business;
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(2)
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acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,
officer, director, principal, agent, trustee or consultant; or
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(3)
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interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between Catalent or any of its
Subsidiaries and customers, clients, suppliers, or investors of Catalent or any of its Subsidiaries.
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Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of Catalent or any of its
Subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such Person and (ii) does not,
directly or indirectly, own 5% or more of any class of securities of such Person.
(c) During the Restricted Period, Executive
will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(i) solicit or encourage any employee of Catalent or any of its Subsidiaries to leave the employment of Catalent or any of its Subsidiaries; or
(ii) hire any such employee who was employed by Catalent or any of its Subsidiaries as of the date of Executive’s
termination of employment with Catalent or who left the employment of Catalent or any of its Subsidiaries coincident with, or within twelve (12) months prior to, the termination of Executive’s employment with Catalent.
(d) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with Catalent or any
of its Subsidiaries any consultant then under contract with Catalent or any of its Subsidiaries.
(e) It is expressly
understood and agreed that although Executive and the Company consider the restrictions contained in this Section 6.1 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or
any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such
maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein
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6.2
Confidentiality
.
(a) Executive will not at any time (whether during or after Executive’s employment with Catalent), other than in the ordinary course
of business for Catalent or any of its Subsidiaries (x) retain or use for the benefit, purposes or account of Executive or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person
outside Catalent (other than its professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information of Catalent and its Subsidiaries —including without limitation trade secrets,
know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors,
customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals — concerning the past, current or future business, activities
and operations of Catalent, its Subsidiaries or Affiliates and/or any third party that has disclosed or provided any of same to Catalent on a confidential basis (“
Confidential Information
”) without the prior written authorization of
the Board.
(b) “
Confidential Information
” shall not include any information that is (a) generally known
to the industry or the public other than as a result of Executive’s breach of this covenant or any breach of other confidentiality obligations by third parties; (b) made legitimately available to Executive by a third party without breach
of any confidentiality obligation; or (c) required by law to be disclosed or in any judicial or administrative process;
provided
that, unless prohibited by law or regulation, Executive shall give prompt written notice to Catalent of such
requirement, disclose no more information than is so required, and cooperate with any attempts by Catalent to obtain a protective order or similar treatment.
(c) Upon termination of Executive’s employment with Catalent for any reason, Executive shall (x) cease and not thereafter commence use of any Confidential Information or intellectual property
(including, without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by Catalent or any of its Subsidiaries or Affiliates; (y) immediately destroy,
delete, or return to Catalent, at its option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in Executive’s possession or control (including any of the
foregoing stored or located in Executive’s office, home, laptop or other computer, whether or not property of Catalent) that contain Confidential Information or otherwise relate to the business of Catalent or any of its Affiliates and
Subsidiaries, except that Executive may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information; and (z) notify and fully cooperate with Catalent regarding the delivery or
destruction of any other Confidential Information of which Executive is or becomes aware.
6.3
Repayment of Proceeds
.
If Executive breaches in any material way (x) the non-competition and non-solicitation provisions of Section 6.1 or the confidentiality provisions of Section 6.2 or (y) the non-competition, non-solicitation or confidentiality
provisions of the Employment Agreement and, in either case, Executive does not cure such breach within ten (10) days following receipt of notice from the Company of such breach, then Executive shall be
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required to pay to the Company, within ten (10) business days following the first date on which Executive first breaches such provisions, an amount equal to the excess, if any, of
(A) the aggregate proceeds Executive received upon the sale or other disposition of, or distributions in respect of, Executive’s Shares over (B) the aggregate Cost of such Shares.
6.4 Notwithstanding anything herein to the contrary, in the event of any conflict between the terms of Sections 6.1 and 6.2 and the terms
of any employment, non-competition or confidentiality agreement between Executive and the Company and its Subsidiaries, the terms of such employment, non-competition or confidentiality agreement shall govern.
7. Miscellaneous.
7.1
Transfers to Permitted Transferees
. Prior to the transfer of Shares, to the extent permitted under the terms of the Securityholders Agreement, Executive shall deliver to the Company a written agreement of the proposed transferee
(a) evidencing such Person’s undertaking to be bound by the terms of this Agreement and (b) acknowledging that the Shares transferred to such Person will continue to be Shares for purposes of this Agreement in the hands of such
Person. Any transfer or attempted transfer of Shares in violation of any provision of this Agreement or the Securityholders Agreement shall be void, and the Company shall not record such transfer on its books or treat any purported transferee of
such Shares as the owner of such Shares for any purpose.
7.2
Recapitalizations, Exchanges, Etc. Affecting Shares
. The
provisions of this Agreement shall apply, to the full extent set forth herein with respect to Shares, to any and all securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or in substitution of the Shares, by reason of any dividend payable in shares of Common Stock, issuance of shares of Common Stock, combination, recapitalization, reclassification, merger,
consolidation or otherwise.
7.3
Executive’s Employment by the Company
. Nothing contained in this Agreement shall
be deemed to obligate the Company or any Subsidiary of the Company to employ Executive in any capacity whatsoever or to prohibit or restrict the Company (or any such Subsidiary) from terminating the employment of Executive at any time or for any
reason whatsoever, with or without Cause.
7.4
Cooperation
. Executive agrees to cooperate with the Company in taking
action reasonably necessary to consummate the transactions contemplated by this Agreement.
7.5
Binding Effect
. The
provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns; provided, however, that no transferee shall derive any rights under this
Agreement unless and until such transferee has executed and delivered to the Company a valid undertaking and becomes bound by the terms of this Agreement; and provided further that Blackstone is a third party beneficiary of this Agreement and shall
have the right to enforce the provisions hereof.
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7.6
Amendment; Waiver
. This Agreement may be amended only by a written instrument
signed by the parties hereto. No waiver by any party hereto of any of the provisions hereof shall be effective unless set forth in a writing executed by the party so waiving.
7.7
Governing Law
. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflicts of law principles thereof.
7.8
Notices
. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly
given when personally delivered, telecopied (with confirmation of receipt), one day after deposit with a reputable overnight delivery service (charges prepaid) and three days after deposit in the U.S. Mail (postage prepaid and return receipt
requested) to the address set forth below or such other address as the recipient party has previously delivered notice to the sending party.
(a) If to the Company:
PTS Holdings Corp.
c/o Catalent Pharma Solutions, Inc.
14 Schoolhouse Road Somerset, NJ 08873
Attention: General Counsel
with a copy to:
c/o The Blackstone Group
345 Park Avenue
New York, New York 10154
Attention: Chinh Chu
Fax: (212) 583-5722
and
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017-3954
Attn: Wilson Neely and Brian Robbins
Fax: (212) 455-2502
(b) If to the Executive, to the address as shown on the
stock ledger of the Company.
7.9
Integration
. This Agreement and the documents referred to herein or delivered
pursuant hereto contain the entire understanding of the parties with respect to the subject matter hereof and thereof. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth herein and therein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter, including, without limitation, the Prior
Agreement, other than as specifically provided for herein.
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7.10
Counterparts
. This Agreement may be executed in separate counterparts, and by
different parties on separate counterparts each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
7.11
Injunctive Relief
. Executive and any permitted transferee each acknowledges and agrees that a violation of any of the terms of this Agreement will cause the Company irreparable injury for
which adequate remedy at law is not available. Accordingly, it is agreed that the Company shall be entitled to an injunction, restraining order or other equitable relief to prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent jurisdiction in the United States or any state thereof, in addition to any other remedy to which it may be entitled at law or equity. If equitable relief is not available, then
the parties agree that any controversy, dispute or claim arising out of, in connection with, or in relation to this Agreement shall be settled in accordance with Section 11(b) of the Employment Agreement.
7.12
Rights Cumulative; Waiver
. The rights and remedies of Executive and the Company under this Agreement shall be cumulative and
not exclusive of any rights or remedies which either would otherwise have hereunder or at law or in equity or by statute, and no failure or delay by either party in exercising any right or remedy shall impair any such right or remedy or operate as a
waiver of such right or remedy, nor shall any single or partial exercise of any power or right preclude such party’s other or further exercise or the exercise of any other power or right. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by either party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or
privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
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PTS HOLDINGS CORP.
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By:
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/s/ John Chiminski
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Name:
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John Chiminski
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Title:
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/s/ Matthew Walsh
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MATTHEW WALSH
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Subscription Agreement
CONSENT OF SPOUSE
I, , the undersigned spouse of Executive, hereby acknowledge that I have read the
foregoing Amended and Restated Management Equity Subscription Agreement, as it may be amended from time to time (the “
Agreement
”) and that I understand its contents. I am aware that the Agreement provides for the repurchase of my
spouse’s RSU Shares (as defined in the Agreement) and Shares issuable or issued upon exercise of the Option (as defined in the Agreement) under certain circumstances and imposes other restrictions on the transfer of such Shares. I agree that my
spouse’s interest in the Shares is subject to the Agreement and any interest I may have in such Shares shall also be irrevocably bound by the Agreement and, further, that my community property interest in such Shares, if any, shall be similarly
bound by the Agreement.
I am aware that the legal, financial and other matters contained in the Agreement are complex and I
am encouraged to seek advice with respect thereto from independent legal and/or financial counsel. I have either sought such advice or determined after carefully reviewing the Agreement that I hereby waive such right.
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Acknowledged and agreed this day of
, 2011.
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Name:
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Witness
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Subscription Agreement – Consent of Spouse
EXHIBIT A
Shares of Common Stock purchased on the Closing Date: 400
Purchase Price for Shares: $1,000
* * * *
Number of Shares subject to the Option granted on April 17, 2008: 4,000
Exercise Price of Shares subject to such Option: $1,000
In connection with the option exchange
that occurred in October 2009, Executive elected to exchange his 3733 unvested options for 3734 new options with a lower per share exercise price of $750 per share.
Exhibit A to Subscription Agreement
EXHIBIT B
Number of Shares subject to the additional option: 1,500
Exercise Price of Shares subject to the
additional option: $1,040
Number of RSUs: 500
Exhibit B to Subscription Agreement
