Exhibit 10.1
Execution Version
TRANSITION AGREEMENT
This TRANSITION AGREEMENT (this “
Agreement
”) by and among Duncan Jamie Macdonald (the “
Executive
”), INC
Research, LLC (the “
LLC
”) and INC Research Holdings, Inc. (the “
Company
”) (the “
Parties
”) is entered into as of July 27, 2016 (the “
Effective Date
”).
WHEREAS, the LLC and the Executive are parties to an Employment Agreement, dated July 31, 2014 pursuant to which the Executive serves as
the Chief Executive Officer of the LLC and the Company (the “
Employment Agreement
”); and
WHEREAS, the Parties have
agreed that the Executive will transition from the position of Chief Executive Officer and enter into certain arrangements pursuant to such transition, including, without limitation, settlement of the rights and obligations of the Parties under the
Employment Agreement.
NOW, THEREFORE, in consideration of such services and the mutual covenants and promises herein contained, the
Parties hereby agree as follows:
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1.
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Transition of CEO Position
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The Executive shall, subject to the terms
and conditions of the Employment Agreement, continue to serve as Chief Executive Officer of the LLC and the Company, and as a member of the Board of Directors of the Company (the “
Board
”) until October 1, 2016, unless an
earlier date is mutually agreed by the Parties (the “
Transition Date
”). Until the Transition Date, the terms and conditions of the Employment Agreement shall remain in full force and effect. Effective on the Transition Date, the
Executive will resign as Chief Executive Officer and from all other executive positions with the Company and its subsidiaries and as a member of the Boards of Directors of the Company and its subsidiaries, but will continue as an employee of the
Company or a subsidiary, as set forth in this Agreement. The Executive agrees to execute any documentation presented by the Company solely to effectuate all such resignations from such offices and/or directorships as of the Transition Date. From and
after the Transition Date, the Employment Agreement shall be terminated and the terms thereof shall be superseded by this Agreement.
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2.
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Transition Services and Compensation
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Effective as of the Transition
Date and through February 28, 2017 (such date, the “
Separation Date
” and such period, the “
Transition Period
”), the Executive shall continue as a full-time employee of the Company or a subsidiary in the
non-executive positon of Vice Chairman, reporting to the Chairman of the Board. During the Transition Period, the Executive shall assist in the transition of his responsibilities as Chief Executive Officer and shall have such other duties and
responsibilities as shall be agreed upon by the Executive and the Chairman of the Board. During the Transition Period, the Executive shall continue to receive the same base salary and benefits (including, without limitation, vesting of outstanding
equity compensation awards) that the Executive receives as Chief Executive Officer of the Company as of the date of this Agreement, provided that the Executive shall not receive a grant of any additional incentive compensation or equity awards in
respect of the Transition Period. The Board may, acting in good faith, limit the services of the Executive prior to February 28, 2017, provided that any such limitation shall
not effect a termination of employment or reduce the rights and benefits (including, without limitation, vesting of outstanding equity compensation awards) of the Executive under this Agreement,
except in the event of a termination for “Cause” (as defined in the Employment Agreement). Effective as of the Separation Date, the Executive shall resign from employment with the Company and its subsidiaries for all purposes, including
for the purposes of all compensation and employee benefit plans in accordance with the terms of such plans, except as provided herein.
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3.
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Separation Payments and Benefits
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(a) In consideration of the
Executive’s execution of and compliance with the terms of this Agreement (including the General Release in Section 5 hereof) and the early termination of the Employment Agreement, the Company will provide the Executive with the following
separation payments and benefits following the Separation Date. The Executive acknowledges that receipt of the separation payments and benefits set forth in this Agreement is subject to his compliance with the terms of this Agreement.
(i)
Separation Payments
. The Executive shall be entitled to receive separation payments equal to $1,200,000 in the
aggregate, payable in twelve (12) equal monthly installments of $100,000 commencing March 1, 2017, in accordance with the Company’s regular payroll procedures and subject to applicable tax withholdings.
(ii)
Bonus Payment
. The Executive shall be entitled to a one-time bonus payment, in lieu of any bonus payable under the
Company’s Management Incentive Plan (the “
MIP
”), in the amount of $800,000 (at the 100% target level under the MIP), payable at the same time as annual bonuses under the MIP are otherwise paid to executives of the Company in
2017 (but not later than March 15, 2017), subject to applicable tax withholdings.
(iii)
COBRA Benefits
. If the
Executive timely elects continued health coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“
COBRA
”), the Executive and his eligible dependents shall continue to be covered under the medical
benefit plans of the Company or a subsidiary for the 18-month period following the Separation Date, and the Company shall reimburse the Executive (on an after-tax basis) for the entire amount of any premiums paid by the Executive to continue such
COBRA coverage.
(iv)
Equity Compensation Awards
. The Executive shall continue to have all rights and benefits
associated with his outstanding equity compensation awards (including stock options, restricted stock units and performance restricted stock units) that shall have vested on or prior to the Separation Date, subject to the terms and conditions of
this Agreement and the applicable award agreements. For the avoidance of doubt, the outstanding equity awards that are eligible to become vested through the Separation Date are listed on
Exhibit A
hereto.
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(b) The Executive acknowledges that the payments outlined above are in full
discharge of any obligations of the Company and the LLC to the Executive under the Employment Agreement or otherwise and any other agreement or arrangement of the Parties. Notwithstanding the foregoing, nothing in the Agreement is intended to waive
the Executive’s rights to accrued obligations, including any earned and unpaid base salary and business expenses, and rights under employee benefit plans, in each case through and including the Separation Date.
In accordance with the terms of Section 14 of the
Employment Agreement, from and after the Separation Date, the Company and the LLC shall, to the fullest extent permitted by Section 145 of the Delaware General Corporation Law, as such section may be amended and supplemented from time to time,
continue to indemnify the Executive against expenses (including attorneys’ fees), judgments, fines, amounts paid in settlement and/or other matters referred to in or covered by such section, by reason of the fact that the Executive was a
director, officer, employee or agent of the Company or the LLC or was serving at the request of the Company or the LLC as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including
the advancement of expenses in accordance with Section 7.4 of the Company’s Amended and Restated Certificate of Incorporation and Section 6.04 of the Company’s Amended and Restated Bylaws, each as in effect on the date hereof.
(a) In exchange for and in consideration of the
covenants and promises contained herein, the Executive, on behalf of himself, spouse, children, agents, heirs, executors, administrators, beneficiaries, trustees, legal representatives, and assigns, hereby waives, discharges, and releases the
Company, the Company’s affiliates and any related entities (including, without limitation, the LLC), and the present and former directors, officers, employees and representatives of all of them, as well as any employee benefit plans and plan
fiduciaries (together, the “
Releasees
”), from any and all actions, causes of action, obligations, liabilities, claims and demands the Executive may have, known or unknown, contingent or otherwise, and whether specifically mentioned
or not, regardless of when they accrued until the Effective Date of this Agreement. This release includes, but is not limited to, any claims arising under the Employment Agreement through the Effective Date of this Agreement.
(b) This release includes, but is not limited to, any claims based on employment with the Company or its subsidiaries or the
termination of that employment, including the release of any claims for wrongful discharge or breach of contract (express, implied or otherwise). This release includes, but is not limited to, any claims of alleged employment discrimination,
harassment, or retaliation on any basis, including age, race, color, ethnicity, national origin, gender, religion, pregnancy, disability (or perceived disability), sexual orientation, veteran’s status, whistleblower status or marital status.
This release includes, but is not limited to, any claims the Executive may have under the Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Americans With Disabilities Act; the Age Discrimination in Employment Act; the
Older Workers Benefit Protection Act; the Older Worker Benefits Protection Act; the Employee Retirement Income Security Act of 1974, as amended; the Family
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and Medical Leave Act, the Lilly Ledbetter Fair Pay Act of 2009; the Consolidated Omnibus Budget Reconciliation Act; the Occupational Safety and Health Act; the North Carolina Equal Employment
Practices Act; the North Carolina Retaliatory Employment Discrimination Act, the common law of the State of North Carolina, or any other federal, state, or local laws or regulations, including any and all laws or regulations prohibiting employment
discrimination, harassment, or retaliation. This release includes, but is not limited to, any claims for negligence, defamation or intentional tort.
(c) This release does not include a release of any rights the Executive may have to vested benefits, any rights the Executive
may have under this Agreement, any rights the Executive may have to indemnification and advancement of expenses as provided above, or any director and officer liability insurance.
(d) The Executive agrees that he hereby waives any right that he may have to seek or to share in any relief, monetary or
otherwise, relating to any claim released herein, whether such claim was initiated by him or not. The Executive further agrees, to the maximum extent permitted by law, that he will not, at any time hereafter, assist in the commencement or
prosecution of, as an advisor, witness (unless compelled by legal process or court order) or otherwise, any action or proceeding of any kind, judicial or administrative on behalf of any other person in any court, agency, investigative or
administrative body against any Releasee with respect to any act, omission, transaction, practice, conduct, occurrence or any other matter up to and including the date of execution of the Agreement.
(e) The Executive acknowledges that he has been offered the opportunity to consult legal counsel and to consider the terms of
the Agreement and General Release for a period of twenty-one days. This Agreement shall become effective on the eighth (8th) day following the date on which the Executive signs the Agreement (the “
Effective Date
”), unless the
Executive revokes the Agreement and General Release prior to such date. In the event of such revocation, this Agreement and the promises contained herein shall automatically be null and void.
(f) On or within five (5) days following the Separation Date, the Executive agrees to execute a form of General Release
presented by the Company in a form substantially identical to the foregoing, with respect to any claims from the Effective Date until the Separation Date.
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6.
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Survival of Restrictive Covenants
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(a) The following covenants under
the Employment Agreement shall survive in accordance with their terms, effective from and after the Separation Date. Such provisions are incorporated herein by reference and shall constitute a part of this Agreement as if fully set forth herein. For
purposes of such covenants, references to the “Company” in the Employment Agreement shall be deemed to be references to the Company and the LLC, as defined herein.
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Section 8 (Confidentiality)
Section 9 (Non-Solicitation of Customers and Other Business Relations)
Section 10 (Non-Solicitation of Employees; Non-Disparagement)
Section 11 (Non-Competition)
Section 13 (Developments)
Section 15 (Cooperation)
(b) The foregoing covenants (and correlative provisions of the Employment Agreement, including, without limitation, Sections
12, 24(e) and 24(f)) shall continue in effect for the time periods set forth in the Employment Agreement, except that the “
Restricted Period
” for purposes of the non-competition and non-solicitation covenants of Sections 9, 10 and
11 of the Employment Agreement shall expire on March 1, 2018. The Board shall consider in good faith the Executive’s request for waiver of the non-competition covenant under Section 11 of the Employment Agreement at any time after September 30,
2017 in respect of any non-executive board of directors position that may be offered to the Executive. The Company consents to the Executive’s service, commencing following the Transition Date, as a non-executive director of the entity
identified by the Executive to the Board in connection with the execution of this Agreement and agrees that such service shall not be deemed a violation of Section 11 (Non-Competition) of the Employment Agreement; provided that Executive’s
continued service on such board does not represent a business conflict with the Company’s key customers or otherwise result in a violation of the other restrictive covenants incorporated by this Section 6, and that the Executive shall comply
with the Company’s reasonable requests to consult with respect to the compliance with this proviso.
(c) The
obligations of the Company to provide, and the right of the Executive to receive, the separation payment and benefits under Section 3 of this Agreement shall be conditioned upon the Executive’s continued compliance with the foregoing
restrictive covenants and the other terms and conditions of this Agreement. Further, in the event of any material breach of such covenants, the Executive shall forfeit his right to the retention of any such payments and benefits previously received,
and any such payments and benefits shall be subject to recoupment by the Company, which the Executive shall repay to the Company within ten (10) days following written demand.
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7.
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Successors and Assigns
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This Agreement shall be binding upon and inure
to the benefit of the Company, the LLC and any successor thereto, through merger, consolidation or otherwise. This Agreement shall not be assignable by the Company, the LLC or the Executive.
Notices and all other communication shall be in writing and
deemed to have been duly given when personally delivered or when mailed by United States registered or certified mail. Notice to the Company and the LLC shall be sent to:
INC Research Holdings, Inc.
Attn: General Counsel
3201
Beechleaf Court, Suite 600
Raleigh, North Carolina 27604
Notices and communications to the Executive shall be sent to the address the Executive most recently provided to the Company in
writing.
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The Company will provide to the Executive, and to such
persons as are reasonably requested by the Executive from time to time, letters of reference in a form substantially in accord with the draft previously provided to the Executive in connection with the execution of this Agreement.
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10.
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Governing Law, Forum and Jury Waiver
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This Agreement and all disputes,
claims or controversies arising out of or related to this Agreement, shall be governed by the laws of the State of North Carolina without regard for or reference to any choice or conflict of law principles of any jurisdiction. The Parties agree that
any action or proceeding with respect to this Agreement or the Executive’s employment with the Company or its subsidiaries shall be brought exclusively in the state or federal courts in the State of North Carolina, and the Executive voluntarily
submits to the exclusive jurisdiction over the Executive’s person by a court of competent jurisdiction located within the State of North Carolina. The Parties hereby irrevocably waive any objection they may now or hereafter have to the laying
of venue of any such action in the State of North Carolina, and further irrevocably waive any claim they may now or hereafter have that any such action brought in said court(s) has been brought in an inconvenient forum. The Parties hereby knowingly
and expressly waive their right to a jury trial for any claim relating to his/her/its rights or obligations under this Agreement.
This Agreement contains all the understanding between
the Parties hereto pertaining to the subject matter hereof and supersedes all undertakings, promises and agreements, whether oral or in writing, previously entered into between them with respect to the subject matter herein. The Agreement represents
the entire agreement and understanding between the Parties concerning the Executive’s separation from the Company and its subsidiaries, and, subject to the continued application and validity of the Employment Agreement until the Transition
Date, supersedes and replaces any and all prior agreements and understandings concerning the Executive’s employment relationship with the Company and its subsidiaries, the Executive’s compensation by the Company and its subsidiaries and
the transition and the separation of the Executive’s employment. Effective as of the Transition Date, this Agreement supersedes the terms of the Employment Agreement, which shall be of no further force or effect following the Transition Date,
except for the provisions expressly incorporated herein by reference.
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12.
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Amendment, Modification or Waiver
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This Agreement may not be changed
orally, and no provision of this Agreement may be amended or modified unless such amendment or modification is in writing, signed by the Executive and by a duly authorized officer of the Company. No act or failure to act by the Company will waive
any right, condition or provision contained herein. Any waiver by the Company must be in writing and signed by a duly authorized officer of the Company to be effective.
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In case anyone or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as
if such invalid, illegal, or other unenforceable provision had never been contained herein. If, moreover, anyone or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical
scope or subject, it shall be construed by limiting it and reducing it so as to be enforceable to the extent compatible with applicable law as it shall then appear.
(a)
Compliance
. The intent of the Parties is
that payments and benefits under this Agreement comply with or are exempt from Section 409A and, accordingly, to the maximum extent permissible, this Agreement shall be interpreted to that end. If any benefit or payment is deemed to not comply
with Section 409A, the Company and the Executive agree to renegotiate in good faith any such benefit or payment so that either Section 409A will not apply or compliance with Section 409A will be achieved. A termination of employment
shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that are considered nonqualified deferred compensation under Section 409A upon or following a termination
of employment, unless such termination is also a “separation from service” within the meaning of Section 409A and the payment thereof prior to a “separation from service” would violate Section 409A. For purposes of any
such provision of this Agreement relating to any such payments or benefits, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” If the Executive is deemed on
the Separation Date be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B), then, notwithstanding any other provision herein, with regard to any payment or the provision of any benefit that is considered
nonqualified deferred compensation under Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided prior to the date which is the earlier of (A) the day after the
expiration of the six-month period measured from the date of such “separation from service” of the Executive, and (B) the day after the date of the Executive’s death (the “
Delay Period
”). Upon the expiration of
the Delay Period, all payments and benefits delayed pursuant to this Section 14(a) (whether they would have otherwise been payable in a single lump sum or in installments in the absence of such delay) shall be paid or reimbursed to the
Executive in a lump sum as part of the first full payroll cycle following the Delay Period, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them
herein. Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment shall be within the sole discretion of the Company. If under this Agreement, an amount is paid in two
(2) or more installments, for purposes of Section 409A, each installment shall be treated as a separate payment.
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(b)
Reimbursements
. (i) All expenses or other reimbursements as
provided herein shall be payable in accordance with the Company’s policies in effect from time to time, but in any event any reimbursements that are non-qualified deferred compensation subject to Section 409A shall be made on or prior to
the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive; (ii) no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the expenses
eligible for reimbursement in any other taxable year; and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchanged for another benefit.
This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same Agreement. Counterparts may be transmitted and/or signed by facsimile or electronic mail. The effectiveness of any such
documents and signatures shall have the same force and effect as manually signed originals and shall be binding on the Parties to the same extent as a manually signed original thereof.
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The Executive acknowledges that he has carefully read the Agreement in its entirety; that he has had an adequate
opportunity to consider it and to consult with any advisors of his choice about it; that he understands all the terms of the Agreement and their significance; that he knowingly and voluntarily assents to all the terms and conditions contained
herein; and that he is signing the Agreement voluntarily and of his own free will.
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INC Research Holdings, Inc.
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Duncan Jamie Macdonald
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/s/ Christopher L. Gaenzle
By: Christopher L. Gaenzle
Chief Administrative Officer &
General Counsel
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/s/ Duncan Jamie Macdonald
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Date: July 27, 2016
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Date: July 27, 2016
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INC Research, LLC
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/s/ Christopher L. Gaenzle
By: Christopher L. Gaenzle
Chief Administrative Officer &
General Counsel
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Date: July 27, 2016
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[Signature Page to Transition Agreement]
Exhibit A
Schedule of Equity Awards
2010 Plan
Awards
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Grant Date
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Exercise Price
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Vesting Date
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Number of Shares
Vesting
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9/19/11 (Option)
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$
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10.57
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7/28/16
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29,585
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1/1/13 (Option)
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$
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10.57
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1/1/17
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17,751
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8/5/13 (Option)
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$
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10.57
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12/31/16
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29,585
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8/5/13 (Option)
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$
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10.57
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12/31/16
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17,751
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4/1/14 (Option)
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$
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13.52
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12/31/16
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8,876
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6/30/14 (Option)
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$
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16.06
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12/31/16
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9,467
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2014 Plan Awards
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Grant Date
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Exercise Price
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Vesting Date
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Number of Shares
Vesting
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1/19/16 (Option)
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$
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42.88
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1/19/17
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4,445
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1/19/16 (RSU)
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N/A
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1/19/17
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10,000
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10
Exhibit 10.2
Execution version
DATED 27 July 2016
(1) INC RESEARCH HOLDING LIMITED
and
(2) ALISTAIR
MACDONALD
EXECUTIVE SERVICE AGREEMENT
THIS DEED
is made on 27 July 2016
BETWEEN
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1.
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INC RESEARCH HOLDING LIMITED
(registered under company number 06910205), of Riverview, the Meadows Business Park, Station Approach, Blackwater, Camberley, Surrey GU17 9AB (the “
Company
”); and
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2.
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ALISTAIR MACDONALD
of Wilton House, 13 Sunning Avenue, Sunningdale, Berkshire SL5 9PN (the “
Executive
”). The Board has approved the terms of this Agreement under which the Executive is to be
employed.
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1.1
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In this Agreement the following words and expressions have the following meanings unless inconsistent with the context:
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the “
Board
”
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means the board of directors from time to time of INC Research Holdings, Inc., the parent company of the Company, and includes any committee of the board of directors duly appointed by it;
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the “
Companies Acts
”
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means the Companies Act 1985, the Companies Act 1989 and the Companies Act 2006;
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“
Deductions
”
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means any amount owed in respect of income tax and employees National Insurance Contributions which the Group shall deduct in order to account to H.M. Revenue and Customs for such amounts;
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“
Effective Date
”
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means 1
st
October 2016 or such earlier date as may be mutually agreed by the parties;
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the “
Employment
”
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means the Executive’s employment under this Agreement;
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“
Employment Inventions
”
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means any Invention which is made wholly or partially by the Executive at any time during the course of his employment with the Company (whether or not during working hours or using Company premises or resources and whether or not
recorded in material form);
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“
Employment IPRs
”
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means Intellectual Property Rights created by the Executive in the course of his employment with the Company (whether or not during working hours or using Company premises or resources);
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the “
ERA
”
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means the Employment Rights Act 1996;
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“
Group Company
”
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means the Company and any company which from time to time is:
(a) a Subsidiary of the Company;
(b) a Holding Company of
the Company;
(c) a
Subsidiary of any such Holding Company; or
(d) an associated company being any company in which the Company or any of the group companies
falling within (a) to (c) above has a shareholding of 50% or more or any company which has a shareholding of 50% or more in the Company or any of the group companies falling within (a) to (c) above
and “
Group
” shall mean all such Group Companies at such
time;
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“
Intellectual Property Rights
”
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means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in
computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all
applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
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“
Invention
”
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means any invention, idea, discovery, development, improvement or innovation, whether or not patentable or capable of registration, and whether or not recorded in any medium;
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“
Pre-Contractual Statement
”
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means any undertaking, promise, assurance, statement, representation or warranty (whether in writing or not) of any person relating to the Employment which is not expressly set out in this Agreement or any documents referred to in
it;
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2
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“
Subsidiary
” and “
Holding Company
”
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means a “
subsidiary
” and “
holding company
” as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in
subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security,
or (b) its nominee; and
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“
Termination Date
”
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means the date on which the employment of the Executive under this Agreement shall terminate for whatever reason.
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1.2
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References to clauses, sub clauses and schedules are, unless otherwise stated, references to clauses and sub clauses of and schedules to this Agreement.
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1.3
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The headings to the clauses are for convenience only and shall not affect the construction or interpretation of this Agreement.
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1.4
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References to persons shall include bodies corporate, unincorporated associations and partnerships.
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1.5
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Words and expressions defined in or for the purpose of the Companies Acts shall have the same meaning unless the context otherwise requires.
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The Company will employ the Executive and the Executive will serve as Chief Executive
Officer of the Company and of its parent company, INC Research Holdings, Inc. (and he shall have such responsibilities and authority as are consistent with the responsibilities of a Chief Executive Officer) on and subject to the terms and conditions
of this Agreement.
|
3.1
|
The Executive’s employment as Chief Executive Officer of the Company and of its parent company, INC Research Holdings, Inc. under this Agreement shall commence on the Effective Date and shall continue (subject to
the terms of this Agreement) until terminated by either party giving to the other not less than 6 months’ prior notice in writing. Until the Effective Date the terms and conditions of the service agreement between the Company and the Executive
dated 31
st
July 2014 shall continue to apply to the Executive’s employment with the Company (save for the Executive’s base annual salary which shall be increased effective
August 1, 2016 pursuant to a letter from the Company to the Executive dated July 27, 2016).
|
|
3.2
|
The Company reserves the right to terminate the Employment at any time (including where the Executive has given
notice to the Company) by giving notice in writing that it is doing so and confirming that it has or will pay the Executive in lieu of his period of notice or any remaining period of notice (whether given by the Company or by the Executive). The
Executive shall
|
3
|
|
have no entitlement to insist that the Company make such payment which shall be made entirely at the Company’s discretion. For the avoidance of doubt, any payment in lieu shall be in respect
of base salary only and shall not include the value of any benefit, bonus, incentive, commission, or holiday entitlement which would have accrued to the Executive had he been employed until the expiry of his notice period.
|
|
3.3
|
If the Company elects to terminate the Employment by making a payment in lieu of notice, and it subsequently discovers misconduct by the Executive which would have entitled it to terminate the contract summarily,
without making such a payment, the Company shall be entitled to withhold any outstanding payment in lieu and the Executive shall have no rights to recover such sum as a debt owing.
|
|
3.4
|
For the purpose of the ERA, the Executive’s period of continuous employment began on 20
th
May 2002.
|
|
3.5
|
The Executive represents and warrants that, in entering into and performing his duties under this Agreement:
|
|
|
3.5.1
|
he is not subject to any restriction that might hinder or prevent him from performing any of his duties in full;
|
|
|
3.5.2
|
he will not be in breach of any other contract of employment or any other obligation to any third party; and
|
|
|
3.5.3
|
this Employment is and shall remain his sole and exclusive employment, unless upon prior written approval from the Board.
|
|
4.
|
SCOPE OF THE EMPLOYMENT
|
|
|
4.1.1
|
devote the whole of his time, attention, ability and skills to his duties;
|
|
|
4.1.2
|
faithfully and diligently perform such duties and exercise such powers consistent with his position as may from time to time be assigned to or vested in him by the Board;
|
|
|
4.1.3
|
obey all reasonable and lawful directions of the Board;
|
|
|
4.1.4
|
comply with, and do such things as are necessary to ensure compliance by the Company and any relevant Group Company with, all the Company’s, or any Group Company’s, legal and compliance policies and procedures
in relation to insider trading and anti-bribery, as well as all obligations under U.S. securities laws and all other applicable laws, rules and regulations applicable to the Company and any relevant Group Company, including, without limitation, the
UK Bribery Act of 2010;
|
4
|
|
4.1.5
|
comply with the articles of association (as amended from time to time) of the Company and any Group Company of which he is a director;
|
|
|
4.1.6
|
at all times act in the best interests of the Company and use his best endeavours to promote, protect, develop and further the interests of the Company, any of its Group Companies and their employees;
|
|
|
4.1.7
|
keep the Board at all times promptly and fully informed (in writing if so requested) of his conduct of the business of the Company and any Group Company and provide such explanations in connection with such conduct as
the Board may from time to time require; and
|
|
|
4.1.8
|
report to the Board his own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee, director or contractor of the Group immediately on becoming aware of it.
|
|
4.2
|
Subject to clause 4.3 the Company reserves the right to assign the Executive duties of a different nature on a permanent or temporary basis either in addition to or instead of those referred to in clause 4.1
above, it being understood that he will not be assigned duties which he cannot reasonably perform or which are inconsistent with his position and status.
|
|
4.3
|
During any period of notice of termination (whether given by the Company or the Executive), the Company shall be at liberty to assign the Executive such other duties as the Company shall determine in its absolute
discretion and may appoint another person to carry out the Executive’s former duties.
|
|
4.4
|
The Executive shall if and so long as the Company requires without further remuneration:
|
|
|
4.4.1
|
carry out his duties as instructed by the Company on behalf of any Group Company; and
|
|
|
4.4.2
|
act (subject to the Executive’s prior agreement) as a director, officer or consultant of any Group Company.
|
|
4.5
|
The Executive confirms that he has disclosed to the Company all circumstances in respect of which there is, or there might be, a conflict or possible conflict of interest between the Company or any Group Company and the
Executive and he agrees to disclose fully to the Company any such circumstances that might arise during the Employment. For the avoidance of doubt, this includes but is not limited to, disclosing to the Company any activity by a third party or the
Executive himself which might reasonably be expected to harm the Company or any Group Company or its business or to destabilise its workforce.
|
|
4.6
|
The Executive shall disclose to the Company any direct or indirect approach or solicitation by any competitor or potential competitor of the Group intended to encourage him and/or any other employee of the Company to
terminate their employment.
|
5
|
5.
|
HOURS AND PLACE OF WORK
|
|
5.1
|
The Executive shall be required to work such hours as are necessary for the proper performance of his duties.
|
|
5.2
|
The Executive agrees that in his capacity as Chief Executive Officer he may choose or determine the duration of his working time and that the working time limits set out in Part II of the Working Time Regulations 1998
do not apply to the Employment.
|
|
5.3
|
The Executive’s principal place of work will be in the Company’s offices at River View, The Meadows Business Park, Blackwater, or any such place in England as the Company shall from time to time direct. The
Executive will be given reasonable notice of any change in his place of work.
|
|
5.4
|
The Executive may be required to travel throughout the United Kingdom and overseas in the performance of his duties and this may, on occasions, necessitate the Executive working outside the UK for a period of more than
one month. During any such period the Executive will be paid his normal salary and benefits in Pounds Sterling in the normal way unless otherwise agreed.
|
|
6.1
|
The Company shall pay to the Executive a base salary at the rate of $750,000 USD per annum and payable in Pounds Sterling in accordance with the provisions set out in a letter from the Company to the Executive dated
July 27, 2016 by equal monthly instalments in arrears, normally on the 25
th
day of the month by credit transfer to a bank account nominated by the Executive. If the 25
th
falls on a weekend or a public holiday, the Executive will be paid on the last working day before the 25
th
.
|
|
6.2
|
The salary in clause 6.1 is paid in respect of the Executive’s duties for the Company and any other Group Company for whom the Executive is required to work and is inclusive of any fees due to the Executive
from the Company or any Group Company as an officer of the Company or any Group Company.
|
|
6.3
|
The Board and/or a committee appointed of the Board will review the Executive’s salary annually. Each review is made in line with the INC Annual Appraisal review and the Company shall not be obliged to make any
increase.
|
|
6.4
|
The Company shall pay the Executive a car allowance of £11,112 per annum, to be paid with the Executive’s monthly salary in equal monthly instalments in arrears and subject to Deductions.
|
|
7.
|
BONUS AND INCENTIVE AWARD
|
|
7.1
|
The Executive shall be eligible to participate in the Management Incentive Plan of INC Research, LLC (the
“
MIP
”) subject to the rules of the MIP in force from time to time which rules shall not form part of the Executive’s service agreement. The Executive’s participation in the MIP and his eligibility to receive any target
bonus thereunder is subject to the satisfaction of
|
6
|
|
the terms and conditions of the MIP as it may be modified by the Board in its sole and absolute discretion from time to time. Any target bonus payable under the MIP shall be paid less any
Deductions required by law and in accordance with the rules of the MIP, with such payments usually being paid no later than 15
th
April of the calendar year during which such target bonus
vests and at the same time as any similar bonuses are paid to other senior executives. If on the date of payment the Executive is no longer employed by the Company or is under notice given or received by the Executive the Executive shall not be
entitled to receive any payment under the MIP.
|
|
7.2
|
In respect of the 2016 bonus year only, any bonus awarded to the Executive pursuant to the MIP shall be calculated on a time apportioned basis by reference to
7
/
12
th
in respect of his position as President and Chief Operating Officer and
5
/
12
th
in respect of his position as Chief Executive Officer, in each case in the 2016 calendar year, and calculated by reference to the target
bonus which applies to the Executive in relation to each of the positions he held in the 2016 bonus year, subject to the rules of the MIP in force from time to time which rules shall not form part of the Executive’s service agreement. In
respect of the 2017 bonus year, the Executive’s target bonus opportunity shall (subject to the rules of the MIP) be 100% of the Executive’s base annual salary.
|
|
7.3
|
The Executive shall be entitled to participate in the long-term equity incentives pursuant to the INC Research Holdings, Inc. 2014 Equity Incentive Plan (the “
Equity Incentive Plan
”) and/or such other
long-term equity incentive plans of the Group in force from time to time. The Executive’s entitlement to participate in the Equity Incentive Plan and/or any other long-term equity incentive plans of the Group is subject to the Board’s
approval of any option grants and always in accordance with and subject to the rules of the Equity Incentive Plan and/or any other long-term equity incentive plans of the Group in force from time to time and the terms of any stock option agreements
or other agreements in relation to such long-term equity incentives.
|
|
7.4
|
If the Executive’s employment should terminate for any reason (including as a result of a repudiatory breach of contract by the Company) his rights in relation to any long-term equity incentives will be governed
entirely by the terms of and the rules of such scheme and he will not be entitled to any further or other compensation for any loss of any right or benefit or prospective right or benefit under any such scheme which he may have enjoyed whether such
compensation is claimed by way of damages for wrongful dismissal or other breach of contract or by way of compensation for loss of office or otherwise.
|
|
8.
|
PENSION AND OTHER BENEFITS
|
|
8.1
|
The Company shall match the Executive’s contributions in accordance with the Company’s Group Personal Pension Plan (the “
Company Pension
”) subject to its rules from time to time in force and
any statutory limits imposed from time to time. Details of the Company Pension can be obtained from the HR Department. The Company reserves the right to vary the benefits payable under the Company Pension or, terminate, or substitute another pension
scheme for the existing Company Pension at any time.
|
7
|
8.2
|
There is no contracting out certificate in place in respect of the Employment.
|
|
8.3
|
The Executive shall be eligible to participate in the private health care, permanent health care and life assurance schemes which the Company may maintain for the benefit of its senior employees (the
“
Schemes
”) subject to the rules of the Schemes and the terms of any related policy of insurance from time to time in force. Further details of the Schemes and the benefits currently available can be obtained from the HR department.
This is for information only and should not be regarded as any guarantee of benefits which may be paid under the Schemes.
|
|
8.4
|
The Company reserves the right, at its absolute discretion, to change the Schemes providers, to amend the terms of the Schemes (including but not limited to the level of benefits), to terminate the Schemes without
replacement, to substitute other schemes for the Schemes and to remove the Executive from membership of the Schemes.
|
|
8.5
|
The Company shall be under no obligation to make any payment under the Schemes to the Executive unless and until it has received the relevant payment from the Schemes’ providers. If any of the Schemes providers
refuse for any reason (whether based on its own interpretation of the terms of the insurance policy or otherwise) to provide any benefits to the Executive, the Company shall not be liable to provide replacement benefits itself or any compensation in
lieu and shall be under no obligation to pursue a claim for unpaid benefits on behalf of the Executive against the Schemes providers.
|
|
8.6
|
The Company reserves the right to terminate the Executive’s employment, where it has good cause to do so (including but not limited to where the Executive is redundant or has committed misconduct), notwithstanding
that the Executive is receiving benefits under the Schemes and that such termination may result in those benefits being discontinued. The Executive agrees that he shall have no claim against the Company for damages in respect of the loss of benefits
under the Schemes in such circumstances.
|
|
8.7
|
In the event that the Executive is absent by reason of ill-health he will continue to co-operate with and act in good faith towards the Group including but not limited to staying in regular contact with the Board and
providing it with such information about his health, prognosis and progress as the Board and/or the Group may require.
|
|
8.8
|
Any benefits paid under the Scheme are inclusive of the Executive’s entitlement to holiday pay either during or on the termination of employment.
|
The Company shall reimburse the Executive in respect of all expenses reasonably incurred by
him in the proper performance of his duties, subject to the Executive providing such receipts or other evidence that the Company may require.
|
10.1
|
The Executive shall be entitled to receive his normal salary for all bank and public holidays normally observed in England and a further 30 working days holiday in each holiday year, being the period from 1
st
January to 31
st
December. The Executive may only take his holiday at such times as are agreed with the Board.
|
8
|
10.2
|
In the holiday years in which the Employment commences or terminates, the Executive’s entitlement to holiday shall accrue on a pro-rata basis for each complete month of service during the relevant year.
|
|
10.3
|
If, on the termination of the Employment, the Executive has exceeded his accrued holiday entitlement, the Company is authorised to deduct from any sums due to him a sum representing such excess holiday taken. If the
Executive has any unused holiday entitlement, the Company may either require the Executive to take such unused holiday during any notice period or any period of Garden Leave or accept payment in lieu in respect of statutory holiday entitlement only.
For the avoidance of doubt, the Executive shall not be entitled to payment in lieu of unused contractual holiday over and above his statutory entitlement. Any payment in lieu shall only be made in respect of holiday accrued in accordance with
clause 10.2 above during the Executive’s final holiday year and the Executive shall be deemed to have taken his statutory holiday first, during that year.
|
|
10.4
|
Holiday entitlement for one holiday year should be taken in that holiday year, however the Executive may be able to carry over five untaken days, subject to the conditions laid out in the Employee Handbook.
|
|
10.5
|
The Executive may take his statutory holiday (or part of it) during any period of sickness absence at such times and on such notice as may be agreed with the Company.
|
|
11.1
|
Subject to the Executive’s compliance with the Company’s rules from time to time in force regarding sickness notification and doctor’s certificates (details of which can be obtained from the HR
department) and subject to the Company’s right to terminate the Employment for any reason including without limitation incapacity if the Executive is at any time absent on medical grounds, the Company shall pay to the Executive Statutory Sick
Pay during periods of sickness absence.
|
|
11.2
|
The Company reserves the right to require the Executive to undergo a medical examination by a doctor or consultant nominated by it, at any time including at any stage of absence at the Company’s expense, and the
Executive agrees that he will undergo any requisite tests and examinations and will fully co-operate with the relevant medical practitioner and shall authorise him or her to disclose to and discuss with the Company the results of any examination and
any matters which arise from it.
|
|
11.3
|
Further details of the non contractual sickness policy are set out in the Employee Handbook.
|
|
11.4
|
If the Executive is prevented by incapacity from properly performing his duties under this Agreement for a consecutive period of 25 working days the Board may appoint another person or persons to perform those duties
until such time as the Executive is able to resume fully the performance of his duties.
|
9
For the purposes of the ERA, the Executive hereby authorises the Company to deduct from his
remuneration any sums due from him to the Company including, without limitation, any overpayments of salary, overpayments of holiday pay whether in respect of holiday taken in excess of that accrued during the holiday year or otherwise, loans or
advances made to him by the Company, any fines incurred by the Executive and paid by the Company, the cost of repairing any damage or loss to the Company’s property caused by him and all losses suffered by the Company as a result of any
negligence or breach of duty by the Executive.
|
13.
|
RESTRICTIONS ON OTHER ACTIVITIES BY THE EXECUTIVE
|
|
13.1
|
During the Employment the Executive shall not directly or indirectly be employed, engaged, concerned or interested in any other business or undertaking without the prior written consent of the Board or be involved in
any activity which the Board reasonably considers may be, or become, harmful to the interests of the Company, or any Group Company, or which might reasonably be considered to interfere with the performance of the Executive’s duties under this
Agreement provided that this clause 13.1 shall not prohibit the holding (directly or through nominees) investments listed on any recognised stock exchange as long as not more than one per cent (1%) of the issued shares or other securities
of any class of any one company shall be so held.
|
|
13.2
|
Subject to any regulations issued by the Company, the Executive shall not be entitled to receive or obtain directly or indirectly any discount, rebate or commission in respect of any sale or purchase of goods effected
or other business transacted (whether or not by him by or on behalf of the Company) and if he (or any firm or company in which he is interested) shall obtain any such discount, rebate or commission, he shall account to the Company for the amount
received by him (or a due proportion of the amount received by such company or firm having regard to the extent of his interest in it). For the avoidance of doubt, nothing in this clause shall prevent the Executive from obtaining any discount,
rebate or commission solely as a result of transactions legitimately entered into in his personal capacity.
|
|
14.1
|
The Executive agrees that he shall not at any time during his employment or at any time after the Termination Date, without the prior written consent of the Company, disclose or use (except in the course of his
employment with the Company and solely in furtherance of the interests of the Group and/or its affiliates) any confidential or proprietary information (collectively referred to as “
Confidential Information
”) belonging to the Group.
|
|
14.2
|
Confidential Information shall include, but not be limited to, all trade secrets, patent applications, scientific
data, formulation information, inventions, processes, formulas, systems, computer programs, plans, programs, studies, techniques, critical business information such as drug products in development, business strategies and models, product launch
plans, CRO
|
10
|
|
relationships, regulatory submissions, technology used by or the therapeutic focus of the Company, or any Group Company, clinical information, methodologies, standard operating procedures,
operational documents (such as batch records), technology used by the Company, or any Group Company, marketing and certain financial information calculations, budgets, bids, internal policies and procedures, organization, business plans, analysis,
forecasts, billing practices, pricing information and strategies, promotional material, service offering strategies, marketing plans and ideas, the identities or other information about customers, sponsor, customer or client lists, suppliers and
business partners (current and prospective), the terms of current and pending deals, sales data, and sales projections, research, research proposals, study protocols, coding devices, unpublished results and reports, meeting minutes and notes,
monthly and other periodic reports, contact and other information regarding suppliers, vendors and consultants, and regulatory and legal correspondence, whether or not patentable or copyrightable and whether in tangible or other form, including all
documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data files or on any other type of media, whether or not labelled or identified as confidential and proprietary.
|
|
14.3
|
Confidential Information shall not include information which:
|
|
|
14.3.1
|
is already known to the Executive prior to its disclosure to the Executive by the Group;
|
|
|
14.3.2
|
is or becomes generally available to the public through no wrongful act of any person;
|
|
|
14.3.3
|
is at the time of disclosure part of the public knowledge or literature through no wrongful action by the Executive; or
|
|
|
14.3.4
|
is received by the Executive from a third party without restriction and without any wrongful conduct on the part of such third party relating to such disclosure.
|
|
14.4
|
The Executive acknowledges and agrees that the Confidential Information he obtains or becomes aware of as a result of his employment with the Company is not generally known or available to the general public, but has
been developed, compiled or acquired by the Company at its great effort and expense and that the Executive is required to protect and not to disclose such information.
|
|
14.5
|
The Executive agrees that he shall not disclose any information belonging to third parties, including, without limitation, current, former and/or prospective customers and vendors of the Company that is disclosed to the
Executive as a representative of the Company under an obligation of confidentiality.
|
|
14.6
|
The restrictions contained in this clause 14 will not apply to any information that the Executive is required to disclose by law or as requested by a governmental or administrative agency, provided that the
Executive:
|
11
|
|
14.6.1
|
notifies the Board of the existence and terms of such obligation;
|
|
|
14.6.2
|
gives the Company a reasonable opportunity to seek a protective order or other legal process to prevent or limit such disclosure; and
|
|
|
14.6.3
|
only discloses that information actually required to be disclosed.
|
|
14.7
|
The Executive agrees that, upon the Termination Date and immediately upon request of the Company at any time, he will promptly return (and shall not delete, destroy or modify) all property, including any originals and
all copies of any documents, whether stored on computers or in hard copy, obtained from the Group, or any of its current, former or prospective customers or vendors, whether or not the Executive believes it qualifies as Confidential Information.
|
|
14.8
|
Such property shall include everything obtained during and as a result of the Executive’s employment with the Company, other than documents related to the Executive’s compensation and benefits, such as pay
stubs and benefit statements.
|
|
14.9
|
The Executive shall also return any phone, facsimile, printer, computer, or other items or equipment provided by the Company to the Executive to perform his employment responsibilities during his employment with the
Company.
|
|
14.10
|
The Executive agrees that he shall not access or attempt to access the Company’s computer systems after the termination of the Executive’s employment with the Company. The Executive further agrees that he does
not have a right of privacy to any communications sent through the Company’s electronic communications systems (including, without limitation, emails, phone calls and voicemail) and that the Company may monitor, retain, and review all such
communications in accordance with applicable law.
|
|
14.11
|
For the avoidance of doubt, social media accounts, any on-line content and contacts operated or created by the Executive during the Employment for work related (including networking) purposes on behalf of the Company
shall be regarded as the property of the Company and the Executive agrees not to use such social media after the termination of the Employment. For clarification purposes, the Executive’s Linked-In account is not the property of the Company.
|
|
14.12
|
This clause 14 shall only bind the Executive to the extent allowed by law and nothing in this clause shall prevent the Executive from making a protected disclosure within the meaning of section 43A of the ERA.
|
|
15.1
|
The Executive consents to the Company holding and processing, both electronically and manually, the data it
collects in relation to the Executive in the course of the Employment (including, without limitation the Executive’s employment application, references, bank details, appraisals, holiday and sickness records, salary reviews, remuneration
details, employment benefits and other records which may include sensitive personal data relating to his health) for the purposes of the Company’s
|
12
|
|
administration and management of its employees and its business, the evaluation of assets and liabilities before any acquisition, merger or re-organisation of the Company’s business, to
fulfil any obligation of the Company to transfer records to any successor employer and for compliance with applicable procedures, laws and regulations.
|
|
15.2
|
Such processing may involve the transfer, storage and processing by the Company of such data outside the European Economic Area, to which the Executive consents.
|
|
15.3
|
Further details are contained in the Company’s Data Protection Policy.
|
|
16.
|
INVENTIONS AND INTELLECTUAL PROPERTY RIGHTS
|
|
16.1
|
The Executive acknowledges that all Employment IPRs, Employment Inventions and all materials embodying them shall automatically belong to the Company to the fullest extent permitted by law. To the extent that they do
not vest in the Company automatically, the Executive holds them on trust for the Company.
|
|
16.2
|
The Executive acknowledges that, because of the nature of his duties, which includes research and development, including creating and developing Employment Inventions and Employment IPRs, and the particular
responsibilities arising from the nature of his duties, he has, and shall have at all times while he is employed by the Company, a special obligation to further the interests of the Company and any Group Company.
|
|
16.3
|
To the extent that legal title in any Employment IPRs or Employment Inventions does not vest in the Company by virtue of clause 16.1, the Executive agrees, immediately upon creation of such rights and inventions,
to offer to the Company in writing a right of first refusal to acquire them on arm’s length terms to be agreed between the parties. If the parties cannot agree on such terms within 30 days of the Company receiving the offer, the Company shall
refer the dispute to an arbitrator who shall be nominated by CEDR. The arbitrator’s decisions shall be final and binding on the parties, and the costs of arbitration shall be borne equally by the parties. The Executive agrees that the
provisions of this clause 16.3 shall apply to all Employment IPRs and Employment Inventions offered to the Company under this clause 16.3 until such time as the Company has agreed in writing that the Executive may offer them for sale to a
third party.
|
|
16.4
|
The Executive agrees:
|
|
|
16.4.1
|
to give the Company full written details of all Inventions which relate to or are capable of being used in the business of the Company or any Group Company promptly on their creation;
|
|
|
16.4.2
|
at the Company’s request and in any event on the Termination Date to give to the Company all originals and copies of correspondence, documents, papers and records on all media which record or relate to any of the
Employment IPRs;
|
|
|
16.4.3
|
not to attempt to register any Employment IPR nor patent any Employment Invention unless requested to do so by the Company; and
|
13
|
|
16.4.4
|
to keep confidential each Employment Invention unless the Company has consented in writing to its disclosure by the Executive.
|
|
16.5
|
The Executive waives all his present and future moral rights which arise under the Copyright Designs and Patents Act 1988, and all similar rights in other jurisdictions relating to any copyright which forms part of the
Employment IPRs, and agrees not to support, maintain nor permit any claim for infringement of moral rights in such copyright works.
|
|
16.6
|
The Executive acknowledges that, except as provided by law, no further remuneration or compensation other than that provided for in this Agreement is or may become due to the Executive in respect of his compliance with
this clause 16.6. This is without prejudice to the Executive’s rights under the Patents Act 1977.
|
|
16.7
|
The Executive undertakes to use his best endeavours to execute all documents and do all acts both during and after his employment by the Company as may, in the opinion of the Company, be necessary or desirable to vest
the Employment IPRs in the Company, to register them in the name of the Company and to protect and maintain the Employment IPRs and the Employment Inventions. Such documents may, at the Company’s request, include waivers of all and any
statutory moral rights relating to any copyright works which form part of the Employment IPRs. The Company agrees to reimburse the Executive’s reasonable expenses of complying with this clause 16.7.
|
|
16.8
|
The Executive agrees to give all necessary assistance to the Company to enable it to enforce its Intellectual Property Rights against third parties, to defend claims for infringement of third party Intellectual Property
Rights and to apply for registration of Intellectual Property Rights, where appropriate throughout the world, and for the full term of those rights.
|
|
16.9
|
The Executive hereby irrevocably appoints the Company to be his attorney to execute and do any such instrument or thing and generally to use his name for the purpose of giving the Company or its nominee the benefit of
this clause 16. The Executive acknowledges in favour of a third party that a certificate in writing signed by any Director or the Secretary of the Company that any instrument or act falls within the authority conferred by this clause 16.9
shall be conclusive evidence that such is the case.
|
The Executive shall not make, publish (in any format) or otherwise communicate any
derogatory statements, whether in writing or otherwise, at any time either during his Employment or at any time after its termination in relation to the Company, any Group Company or any of its or their officers or other personnel. The Executive
shall not make any statements to the press or other media in connection with the Group at any time either during the Employment or after the Termination Date without the prior consent of the Board.
14
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18.
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TERMINATION OF EMPLOYMENT
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18.1
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Notwithstanding the provisions of clauses 3.1 and 3.2, the Company shall be entitled, by notifying the Executive in writing to terminate this Agreement and the Employment immediately without any payment by way of
compensation, damages or otherwise for any reason under applicable common law that entitles the Company to summarily and lawfully dismiss the Executive or if the Executive:
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18.1.1
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commits any act of serious misconduct;
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18.1.2
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commits any serious breach or repeated or continued breach of his obligations under this Agreement;
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18.1.3
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is guilty of conduct tending to bring him or the Company or any Group Company into disrepute;
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18.1.4
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has a bankruptcy order made against him or has an interim order made against him under the Insolvency Act 1986 or compounds with his creditors generally/is deemed bankrupt;
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18.1.5
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fails to perform his duties to a satisfactory standard, after having received a written warning from the Board relating to the same;
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18.1.6
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is convicted of an offence under any statutory enactment or regulation (other than a motoring offence for which no custodial sentence can be imposed);
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18.1.7
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during the Employment, commits any breach of clauses 13, 14, 16 and/or 17;
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18.1.8
|
becomes prohibited by law from being a director; or
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18.1.9
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resigns from office as a director of the Company or any Group Company or refuses to hold office as a director of the Company or any Group Company.
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Any delay by the Company in exercising such right of termination shall not constitute a waiver thereof.
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18.2
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The Executive shall cease to be a director of the Company or any Group Company and agrees that he will resign and be removed from the boards of the Company and any Group Company of which he is a director, without any
claim for compensation:
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18.2.1
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if at any time during the Employment the Executive is prevented from performing his duties through any sickness or injury which prevents him from carrying out his duties; and in any event
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18.2.2
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on the Termination Date or, at the request of the Company, at the commencement of any period of Garden Leave pursuant to clause 19,
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15
and the Executive hereby irrevocably authorises any director of the Company or any Group Company
for the time being in his name and on his behalf to execute any documents or do anything else that is necessary to effect such resignations.
At any time following the giving of notice by either party to terminate this Agreement,
the Company shall be under no obligation to assign any duties to the Executive and shall be entitled to exclude him from its premises or the premises of any Group Company (such period being “
Garden Leave
”), and during such Garden
Leave period the Company, may require the Executive not to contact any customers, suppliers, employees, officers, suppliers, advisers, brokers, bankers, shareholders or other business contacts of any Group Company provided that this shall not affect
the Executive’s entitlement to receive his normal salary and contractual benefits. During any such Garden Leave period the Executive will continue to be bound by all the provisions of this Agreement and shall at all times conduct himself with
good faith towards the Group.
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20.
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POST TERMINATION OBLIGATIONS OF THE EXECUTIVE
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20.1
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For the purposes of this clause 20 the following definitions apply:
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“
Business
” means the business or businesses of any Group Company in or with which the Executive has been involved or concerned
at any time during the Relevant Period;
“
directly or indirectly
” means the Executive acting either alone or jointly with
or on behalf of any other person, firm or company, whether as principal, partner, manager, employee, contractor, director, consultant, investor or otherwise;
“
Key Personnel
” means any person who is at the Termination Date or was at any time during the Relevant Period employed (or
engaged as a consultant or contractor) by any member of the Group (i) in an executive, technical or senior managerial capacity or (ii) any other employee, officer, consultant or contractor of any member of the Group who has significant
knowledge of, regular contact with, or influence over customers or clients of or suppliers to the Group, and in each case with whom the Executive has had dealings other than in an immaterial way at any time during the Relevant Period;
“
Prospective Customer
” means any person firm or company who has been engaged in negotiations or pitch or lender or
presentation, with which the Executive has been personally involved, with any Group Company with a view to purchasing goods and/or services from any Group Company during the Relevant Period;
“
Relevant Area
” means any country in which the Executive has been involved or concerned with or had responsibility for in
respect of the Business other than in an immaterial way at any time during the Relevant Period;
“
Relevant Customer
” means
any person firm or company who at any time during the Relevant Period was a customer of any Group Company, with whom or which the Executive directly dealt or for whom or which the Executive was responsible on behalf of any Group Company at any time
during the Relevant Period;
16
“
Relevant Goods and Services
” means any goods and services competitive with
those supplied by any Group Company at any time during the Relevant Period in the supply of which the Executive was directly involved or concerned in a material way at any time during the Relevant Period;
“
Relevant Period
” means: (i) the Employment; or (ii) the 12 months prior to the Termination Date, if the
Executive’s length of employment at the Termination Date is 12 months or longer; or (iii) if the Executive is placed on Garden Leave, the 12 months prior to the date on which the Executive is placed on Garden Leave.
“
Restricted Period
” means the period of 12 months from the Termination Date less any period immediately prior to the
Termination Date during which the Executive has not been provided with work pursuant to clause 19 of this Agreement;
“
Relevant Supplier
” means any person firm or company who at any time during the Relevant Period was a supplier of any goods or
services (other than utilities and goods or services supplied for administrative purposes) to any Group Company and with whom or which the Executive had personal dealings during the Relevant Period other than in an immaterial way.
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20.2
|
The Executive shall not without the prior written consent of the Board directly or indirectly at any time during the Restricted Period:
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20.2.1
|
solicit away from any Group Company;
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20.2.2
|
endeavour to solicit away from any Group Company;
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20.2.3
|
employ or engage; or
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20.2.4
|
endeavour to employ or engage;
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any Key Personnel.
|
20.3
|
The Executive shall not without the prior written consent of the Board directly or indirectly at any time within the Restricted Period:
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20.3.1
|
solicit the custom of; or
|
any Relevant Customer or Prospective Customer in respect of any Relevant Goods or
Services; or
|
|
20.3.4
|
endeavour to interfere,
|
17
with the continuance of supplies to any Group Company (or the terms relating to those supplies)
by any Relevant Supplier.
|
20.4
|
The Executive shall not without the prior written consent of the Board directly or indirectly at any time within the Restricted Period engage or be concerned or interested in any business within the Relevant Area which:
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20.4.2
|
will at any time during the Restricted Period compete
|
with the Business provided that the
Executive may hold (directly or through nominees) by way of bona fide personal investment any units of any authorised unit trust of not more than one per cent. of the issued shares, debentures or securities of any class of any company whose shares
are listed on a recognised investment exchange or a designated investment exchange within the meaning of the Financial Services and Markets Act 2000 or dealt in the Alternative Investment Market.
|
20.5
|
The Executive acknowledges that the provisions of this clause 20 are fair and reasonable and necessary to protect the goodwill and interests of any Group Company and shall constitute separate and severable
undertakings given for the benefit of each Group Company and may be enforced by the Company on behalf of any of them.
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20.6
|
Each of the restrictions and obligations in this clause 20 is intended to be separate and severable. If any of the restrictions or obligations contained in this clause 20 is held not to be valid or enforceable
for any reason (including on the basis that it exceeds what is reasonable for the protection of the confidential information and/or other interests of the Company or any other Group Company) but would be valid and enforceable if part or parts of the
wording were deleted then such restriction or obligation shall apply with such deletions as may be necessary to make it valid and enforceable.
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20.7
|
The Executive agrees that if he has material business dealings in other foreign jurisdictions on behalf of any Group Company, he will enter into undertakings providing the same level of protection for each such Group
Company with such modifications (if any) as are necessary to render such undertakings enforceable in those jurisdictions.
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20.8
|
The Executive acknowledges and agrees that he shall be obliged to draw the provisions of this clause 20 to the attention of any third party who may at any time before or after the termination of the
Executive’s employment hereunder offer to engage or employ the Executive in any capacity whether directly or indirectly, and for whom or with whom the Executive intends to work.
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20.9
|
If the Executive’s employment is transferred by reason of the Transfer of Undertakings (Protection of Employment) Regulations 2006 he will, if requested, enter into an agreement with the new employer that contains
provisions that reflect the protections provided by the Company under this clause 20.
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18
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20.10
|
If the Executive’s contract of employment is expected to transfer to a new entity by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006 but the Executive objects or otherwise resigns
before any such transfer takes place, the Executive acknowledges that the Company may assign the benefit of these restrictive covenants to the relevant successor entity. Consequently, the Executive agrees that he will continue to observe the
restrictions set out in this clause 20 for the benefit of any successor and will not regard himself as released from his obligations under this clause in the event of such assignment. The Executive agrees to co-operate with, and use his best
endeavours to assist the Company and any successor in such circumstances including but not limited to providing such information, executing such documents and giving such assurances and undertakings as they may reasonably request.
|
If the Executive wishes to make a disclosure under sections 43A-L of the ERA he
should do so without delay by contacting the Company’s General Counsel in writing, expressly stating that he wishes to make a protected disclosure within the meaning of section 43A of the ERA.
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22.
|
DEROGATORY STATEMENTS
|
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22.1
|
The Executive agrees that, upon and following the Termination Date:
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22.1.1
|
the Executive shall not make to any third party, publicly or privately, verbally or in writing, any false, disparaging, derogatory or otherwise inflammatory remarks about the Group and other related and affiliated
companies, its or their employees, managers, directors, officers, administrators, shareholders, members, agents, attorneys, insurers and contractors acting in any capacity whatsoever, including their respective predecessors, successors and assigns
(collectively, the “
Company Parties
”) and/or about the conduct, operations or financial condition or business practices, policies or procedures of the Company Parties; and
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22.1.2
|
the Executive will not make or solicit any false or misleading comments, statements or the like to the media or to others that may be considered derogatory or detrimental to the good name and business reputation of any
of the Company Parties.
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22.2
|
Nothing in this clause 22 is intended to prohibit or restrict in any way the Executive from providing truthful information to any government agency or entity, or any arbitrator or court officer, or to otherwise
testify truthfully under oath, as required by law.
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22.3
|
The Company agrees that, upon and following the Termination Date, its executive officers will not make, publicly or privately, verbally or in writing, any false, disparaging, derogatory or otherwise inflammatory remarks
about the Executive and/or the conduct, operations or financial condition or business practices, of the Executive to any third party, and the Company’s executive officers will not make or solicit any comments, statements or the like to the
media or to others that may be considered derogatory or detrimental to the good name and business reputation of the Executive; provided, however, that nothing in this paragraph is intended to prohibit the Company’s executive officers from
providing truthful information to any government entity, arbitrator, or court, or to otherwise testify truthfully under oath, as required by law.
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19
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22.4
|
In addition, nothing in this clause 22 shall be construed or interpreted to restrict or impede the Executive or the Company from participating or cooperating in an investigative proceeding of any federal, state or
local government agency.
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23.
|
AMALGAMATION AND RECONSTRUCTION
|
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23.1
|
If the Company is wound up for the purposes of reconstruction or amalgamation the Executive shall not as a result or by reason of any termination of the Employment or the redefinition of his duties within the Company or
any Group Company arising or resulting from any reorganisation of the Group have any claim against the Company or any Group Company for damages for termination of the Employment or otherwise so long as he shall be offered employment with any concern
or undertaking resulting from such reconstruction reorganisation or amalgamation on terms and conditions no less favourable to the Executive than the terms contained in this Agreement.
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23.2
|
If the Executive shall at any time have been offered but shall have unreasonably refused or failed to agree to the transfer of this Agreement by way of novation to a company which has acquired or agreed to acquire the
whole or substantially the whole of the undertaking and assets or not less than 50 per cent of the equity share capital of the Company the Company may terminate the Employment by such notice as is required by section 86 of the ERA within
one month of such offer being refused by the Executive.
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24.
|
DISCIPLINARY AND GRIEVANCE PROCEDURES AND SUSPENSION
|
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24.1
|
The Grievance and Disciplinary Procedures set out in the Company’s Employee Handbook will apply to the Executive. Such procedures are non-contractual and the Company reserves the right to leave out any stage of the
procedures and failure to follow a procedure (or part of it) shall not constitute a breach of this Agreement.
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24.2
|
The Company reserves the right to suspend the Executive on full pay, for so long as it reasonably thinks fit, in order to:
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24.2.1
|
investigate any allegations made against the Executive (whether in the context of the internal disciplinary process or otherwise);
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24.2.2
|
satisfy itself as to the Executive’s fitness for work; and
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24.2.3
|
where it reasonably considers that it may be beneficial to temporarily remove the Executive.
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25.1
|
Any notice or other document to be given under this Agreement shall be in writing and may be given personally to the Executive or to the Secretary of the Board (as the case may be) or may be sent by first class post or
by facsimile transmission to, in the case of the Company, its registered office for the time being and in the case of the Executive either to his address shown on the face of this Agreement or to his last known place of residence.
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20
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25.2
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Any such notice shall (unless contrary is proved) be deemed served when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours. In proving such service
it shall be sufficient to prove, where appropriate, that the notice was addressed properly and posted or that the facsimile transmission was dispatched.
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26.
|
ENTIRE AGREEMENT AND FORMER SERVICE AGREEMENT(S)
|
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26.1
|
This Agreement together with any documents referred to in it constitute the entire and only legally binding agreement and understanding between the parties relating to the employment of the Executive by any Group
Company. The Executive agrees that he has not been induced to enter into the Employment by and has not relied upon any Pre-Contractual Statement.
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26.2
|
This Agreement together with any documents referred to in it shall be in substitution for and shall replace any previous letters of appointment, agreements or arrangements, (whether written, oral or implied), relating
to the employment of the Executive including the service agreement between the Company and the Executive dated 31
st
July 2014, which shall be deemed to terminate by mutual consent on the day
prior to the Effective Date. The Executive acknowledges that as of the date of this Agreement he has no outstanding claim of any kind against the Company and/or any Group Company.
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26.3
|
There are no collective agreements affecting the Executive’s employment.
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27.
|
GOVERNING LAW AND JURISDICTION
|
This Agreement shall be governed by and interpreted in accordance with
the laws of England and Wales and in the event of any claim, dispute or difference arising out of or in connection with this Agreement the parties irrevocably agree and submit to the exclusive jurisdiction of the Courts of England and Wales but this
Agreement may be enforced by the Company in any court of competent jurisdiction.
The Contracts (Rights of Third Parties) Act 1999 shall only apply to this Agreement
in relation to any Group Company. No person other than the Executive or any Group Company shall have any rights under this Agreement and this Agreement shall not be enforceable by any person other than the Executive or any Group Company.
|
29.1
|
This Agreement constitutes the written statement of the terms of Employment of the Executive provided in compliance with Part 1 of the ERA.
|
21
|
29.2
|
The expiration or termination of this Agreement, however arising, shall not operate to affect such of the provisions of this Agreement as are expressed to operate or have effect after that time and shall be without
prejudice to any accrued rights or remedies of the parties.
|
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29.3
|
The various provisions and sub-provisions of this Agreement are severable and if any provision or any identifiable part of any provision is held to be unenforceable by any court of competent jurisdiction then such
unenforceability shall not affect the enforceability of the remaining provisions or identifiable parts of them.
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29.4
|
The Company reserves the right to make reasonable changes to the terms and condition of employment from time to time according to the business needs. The Company will take reasonable steps to give notice of a change and
to consult with Executive before implementing the change if necessary.
|
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29.5
|
This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.
|
This Agreement has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.
22
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Executed and delivered as a deed by
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)
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ALISTAIR MACDONALD
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)
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/s/ Alistair Macdonald
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in the presence of:
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)
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Signature of Witness
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/s/ Brenda B. Addison
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Name (in BLOCK CAPITALS)
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BRENDA B. ADDISON
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Address
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3201 BEECHLEAF CT., #600
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RALEIGH, NC 27617
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Occupation:
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EXECUTIVE ASSISTANT
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Executed and delivered as a deed by
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)
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INC RESEARCH HOLDING LIMITED
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acting by a director in the presence of
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)
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)
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/s/ Christopher L. Gaenzle
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Signature of Witness
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/s/ Brenda B. Addison
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Name (in BLOCK CAPITALS)
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BRENDA B. ADDISON
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Address
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3201 BEECHLEAF CT.
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SUITE 600
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RALEIGH, NC 27604
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Occupation:
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EXECUTIVE ASSISTANT
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23
Exhibit 99.1
INC Research Announces Transition of CEO Role from Jamie Macdonald
to COO Alistair Macdonald Effective Oct. 1, 2016
RALEIGH, N.C., July 28, 2016 (GLOBE NEWSWIRE) — INC Research Holdings, Inc. (Nasdaq:INCR), a leading, global Phase I to IV contract
research organization, today announced that Chief Executive Officer Jamie Macdonald will transition his role as CEO of the Company effective Oct.1, 2016, to INC Research’s current President and COO Alistair Macdonald. Mr. Alistair
Macdonald, who has served as INC’s President and COO since January 2013 and held various other leadership roles at the Company since 2002, will become a member of the Company’s Board of Directors on Oct. 1. Mr. Jamie Macdonald
will step down from the Board of Directors at that time and will continue as Vice Chairman to assist in the transition of his CEO responsibilities until Feb. 28, 2017, reporting to the Chairman of the Board of Directors.
“Alistair Macdonald brings strong leadership, a proven track record of success and strategic vision that we believe will guide the future growth and
success of INC Research,” said David Norton, Chairman of the Board. “As COO, Alistair has demonstrated outstanding leadership in strengthening INC’s operations globally and we believe will drive increased opportunities for
the Company. We’re delighted to have such a strong successor to Jamie.”
Mr. Norton also thanked Jamie Macdonald for leading INC Research
as CEO since 2013. “Jamie has guided INC and been a strong partner to our Board over the last five years. During that time, he led the Company through its successful IPO in 2014 and subsequent strong operational and market performance, and has
been a leader in every sense. Since Jamie became CEO in 2013, INC has delivered industry-leading growth and margins. We are delighted that Jamie will be working with Alistair and the Board to ensure a smooth transition.”
Jamie Macdonald added, “This year marks my 5
th
year anniversary with INC Research and it has been an
exciting, rewarding and successful time. I committed to myself that I would re-evaluate my priorities at this time and am fortunate that INC has in place a strong internal leadership team and successor to allow me to do that. I am proud to have led
the Company through a significant period of growth and look forward to assisting Alistair and the Board with the transition as Vice Chair.”
-more-
Mr. Norton continued, “We respect Jamie’s decision to step away at this time and commend his
commitment to his family and community, and want to thank him for supporting Alistair and the Company through its transition.”
Commenting on his new
role, Mr. Alistair Macdonald added, “I am pleased to be appointed CEO of INC Research and look forward to working with Jamie and the Board over the transition period to support all of INC’s stakeholders moving forward. We have a
strong leadership team in place and I look forward to continuing to enhance INC’s position as a top-tier CRO providing global Phase I to Phase IV clinical development services. I want to personally thank Jamie for his leadership over the last
five years.”
Prior to assuming his current role as COO, Alistair Macdonald was President, Clinical Development Services for INC
Research
.
Alistair has more than 20 years’ of experience in the pharmaceutical industry and is based at the Company’s European Headquarters in Camberley, United Kingdom.
About INC Research
INC Research (Nasdaq: INCR) is a
leading global contract research organization (“CRO”) providing the full range of Phase I to Phase IV clinical development services for the biopharmaceutical and medical device industries. Leveraging the breadth of our service offerings
and the depth of our therapeutic expertise across multiple patient populations, INC Research connects customers, clinical research sites and patients to accelerate the delivery of new medicines to market. The Company was named “Best Contract
Research Organization” in December 2015 by an independent panel for Scrip Intelligence, and ranked “Top CRO to Work With” among large global CROs in the 2015 CenterWatch Global Investigative Site Relationship Survey. INC Research
is headquartered in Raleigh, NC, with operations across six continents and experience spanning more than 110 countries. For more information, please visit
www.incresearch.com
and connect with us on
LinkedIn
and Twitter
@
inc_research
.
Except for historical information, all of the statements, expectations, and assumptions contained in this press release are
forward-looking statements. Actual results might differ materially from those explicit or implicit in the forward-looking statements. Important factors that could cause actual results to differ materially include: reliance on key personnel; our
Board and corporate governance transition as a relatively new public company that has recently lost its “controlled company” status; the costs and distraction of being
-more-
a public company; risks associated with our business; and the other risk factors set forth from time to time in our Form 10-K for the year ended December 31, 2015, Form 10-Q for the quarter
ended June 30, 2016 and other SEC filings, copies of which are available free of charge on our website at
www.incresearch.com
. INC Research assumes no obligation and does not intend to update these
forward-looking statements, except as required by law.
###
CONTACT:
Investor Relations Contact:
Ronnie Speight
Vice President, Investor Relations
Phone: +1 (919) 745-2745
Email:
Investor.Relations@incresearch.com
Press/Media Contact:
Lori Dorer
Senior Director, Corporate Communications
Phone: +1 (513) 763-1380
Email:
Corporate.Communications@incresearch.com
