Amended and Restated Employment Agreement, dated January 4, 2022, by and between Catalent, Inc. and John R. Chiminski
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(John R. Chiminski)
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the Agreement), dated as of January 4, 2022 (the Effective Date), is being entered into by and between Catalent, Inc. (together with its successors and assigns, the Company) and John R. Chiminski (Executive and, together with the Company, each a Party and collectively the Parties).
WHEREAS, the Company and Executive entered into an employment agreement, dated October 22, 2014, as amended on August 23, 2017 and August 11, 2020 (the Prior Agreement), and the Parties now desire to amend and restate the Prior Agreement in connection with the pending transition of Executive from Chief Executive Officer to Executive Chair;
WHEREAS, the Company desires to continue to employ Executive, with Executive transitioning to serve as Executive Chair of the Company beginning on July 1, 2022 (the Transition Date), and to amend and restate the Prior Agreement to set forth the terms of such employment; and
WHEREAS, Executive desires to accept such continued employment with the Company as Executive Chair and amend and restate the Prior Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration, the parties agree as follows:
1. Term of Employment. Subject to the provisions of Section 7 of this Agreement, Executive shall continue to be employed by the Company as Chief Executive Officer through the Transition Date (the CEO Period) and, beginning on the Transition Date and through June 30, 2023, Executive shall serve as Executive Chair of the Company (the Executive Chair Period) on the terms and subject to the conditions set forth in this Agreement. For purposes of this Agreement, the CEO Period and the Executive Period shall be referred to as the Employment Term.
a. During the CEO Period, Executive shall continue to serve as the Chief Executive Officer of the Company. In such position, Executive shall have such duties, authority and responsibilities, commensurate with Executives position in a company the size and nature of the Company, and such related duties and responsibilities, as from time to time may be assigned to Executive by the Board of Directors of the Company (the Board). During the Executive Chair Period, Executive shall serve as the Executive Chair and shall have such duties, authority and responsibilities, commensurate with Executives position in a company the size and nature of the Company, and such related duties and responsibilities, as from time to time may be assigned to Executive by the Board. During the Employment Term, Executive shall report directly to the Board. In addition, during the Employment Term, the Company shall recommend to the Board and its nominating and corporate governance committee that Executive be nominated to serve as a member of the Board and that Executives nomination be included in any proxy prepared by the Company for consideration at the annual general meeting of its shareholders. If the Companys shareholders elect or re-elect Executive as a member of the Board, Executive agrees to serve in such capacity and also agrees that any such board service shall be without additional compensation. During the CEO Period, Executives principal place of employment shall be at the Companys headquarters, currently located in Somerset, New Jersey.
b. Duties; Conflicts.
(i) During the CEO Period, except during vacations and authorized leave, Executive will devote Executives full business time and reasonable best efforts to the performance of Executives duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the rendition of such services either directly or indirectly, without the prior written consent of the Board (which consent shall not be unreasonably withheld).
(ii) During the Executive Chair Period, except during vacations and authorized leave, Executive will (A) devote such time as is necessary to fulfill Executives responsibilities as Executive Chair, (B) devote Executives reasonable best efforts to the performance of Executives duties hereunder, and (C) not engage in any other business, profession, or occupation for compensation or otherwise that would conflict or interfere with the rendition of such services either directly or indirectly, without the prior written consent of the Board (which consent shall not be unreasonably withheld).
(iii) Notwithstanding anything to the contrary in this Section 2(b), nothing herein shall preclude Executive from (x) managing Executives personal and family investments and affairs, (y) engaging in charitable activities and community affairs, and (z) subject to the prior approval of the Board (which approval shall not be unreasonably withheld), from accepting appointment to or continuing to serve on any boards of directors or trustees of any business, corporation or charitable organization; provided that, in each case, such activities described in this Section 2(b) do not conflict or interfere in more than a de minimis way with the performance of Executives duties hereunder or violate Sections 8 and 9 of this Agreement or the provisions of the Companys Corporate Governance Guidelines as in effect from time to time.
3. Base Salary. During the CEO Period, the Company shall continue to pay Executive an annual base salary of $1,075,000, which annual base salary shall be reduced to $700,000 during the Executive Chair Period, in all cases payable in regular installments in accordance with the Companys usual payment practices (but in all events no less frequently than semi-monthly). Executive shall be entitled to such increases, if any, in base salary as may be determined from time to time in the sole discretion of the Board. Except as set forth in this Section 3, Executives annual base salary may not be decreased during the Employment Term (including for purposes of determining severance amounts under Section 7 hereof) without Executives prior consent (other than a general reduction in annual base salary that affects all members of senior management proportionately; provided, however, that any such reduction shall not be taken into account for purposes of determining severance amounts hereunder and any severance provided hereunder following such reduction shall be calculated based on Executives annual base salary being no less than the applicable amount set forth in the first sentence of this Section 3). Executives annual base salary, as in effect from time to time, consistent with this Section 3, is hereinafter referred to as the Base Salary.
4. Annual Bonus. With respect to (i) the Companys 2022 fiscal year, Executive shall be entitled to receive an annual cash bonus award (the Annual Bonus) under the Plan (as defined below) with a target amount equal to $1,350,000 (the CEO Target Bonus) and (ii) the Companys 2023 fiscal year, Executive shall be entitled to receive an Annual Bonus with a target amount equal to $700,000 (the Executive Chair Target Bonus and, together with the CEO Target Bonus, the Target Bonus), in each case subject to Executives continued employment with the Company through the end of the applicable fiscal year (except as otherwise provided in Section 7 or as may otherwise be provided for under the terms of the Catalent, Inc. 2018 Omnibus Incentive Plan, as it may be amended from time to time (together with any successor plan, the Plan)), based upon and subject to the achievement of annual performance targets established by the Board under the Plan, taking into account the targets used to determine bonuses for other senior executives of the Company and its subsidiaries and in consultation with Executive, during the Employment Term; provided, however, that in no event shall such targets or the method of determining payouts based on the degree to which such targets are attained, be less favorable to Executive than those applying to other senior executives of the Company and its subsidiaries. As the actual amount payable to Executive as an Annual Bonus will be dependent upon the achievement of performance goals established under the Plan and referred to herein, Executives actual Annual Bonus may be less than, greater than, or equal to the applicable Target Bonus. Unless otherwise mutually agreed to by Executive and the Company on such terms as may be agreed to by the Board, the Annual Bonus, if any, shall be paid to Executive in cash in accordance with the terms and conditions of the Plan.
5. Employee Benefits; Perquisites; Equity-Based Awards.
a. During the Employment Term, Executive shall be entitled to participate in all group health, life, disability and other employee benefit and perquisite plans and programs in which other senior executives of the Company and its subsidiaries participate, as in effect from time to time, on a basis no less favorable to Executive than that applying generally to other senior executives of the Company and its subsidiaries (not taking into account for purposes of the foregoing, any sign-on or initial awards made to other executives), to the extent consistent with applicable law and the terms of the applicable plans and programs.
b. For each full year during the Employment Term, Executive shall be entitled to not less than four (4) weeks vacation per calendar year in accordance with the Companys policies.
c. With respect to each calendar year during the Employment Term, Executive shall be entitled to be reimbursed by the Company for the reasonable cost of (i) premiums for an executive life insurance policy and (ii) financial services/planning, subject to (x) receiving customary back-up documentation regarding such insurance or financial services/planning, as applicable, and (y) an aggregate cap of $15,000 for each of the premiums and the services/planning. Reimbursement shall be made within thirty (30) days after receipt of documentation reasonably acceptable to the Company, but in no event later than the last day of the taxable year following the taxable year in which the expenses were incurred.
d. Subject to Executives continued employment through the applicable date of grant, the Company agrees to recommend to the Board or its Compensation & Leadership Committee, as applicable, that Executive be granted restricted stock units under the Plan for the 2023-25 performance period under the Companys long-term incentive plan with a grant date value equal to $4,000,000, with such restricted stock units vesting on the third anniversary of the date of grant, subject to Executives continued employment with the Company through such date.
6. Business Expenses. During the Employment Term, reasonable business expenses incurred by Executive in the performance of Executives duties hereunder shall be reimbursed by the Company in accordance with the Companys policies, as in effect from time to time.
7. Termination. The Employment Term and Executives employment hereunder may be terminated by the Company (or the Board in the case of a termination for Cause as set forth in such definition below) or Executive at any time and for any reason consistent with this Section 7; provided that Executive will be required to give the Company at least sixty (60) days advance written notice of any resignation during the CEO Period of Executives employment without Good Reason (other than due to death or Disability (as defined below)). Notwithstanding any other provision of this Agreement, the provisions of this Section 7 shall exclusively govern Executives rights upon termination of employment with the Company.
a. By the Company For Cause or By Executive Without Good Reason.
(i) The Employment Term and Executives employment hereunder may be terminated for Cause by the Board as set forth in the definition of Cause, which termination shall be effective immediately after the Board has achieved the required vote and provided Executive with a Notice of Termination (as defined below), or by Executive without Good Reason (other than due to death or Disability).
(ii) If Executives employment is terminated by the Company for Cause in accordance herewith, or if Executive resigns without Good Reason (other than due to death or Disability), in each case, Executive shall be entitled to receive:
(A) accrued, but unpaid Base Salary, earned through the date of termination, payable in accordance with the Companys usual payment practices;
(B) reimbursement, within sixty (60) days following submission by Executive to the Company of appropriate supporting documentation, for any unreimbursed business expenses properly incurred by Executive in accordance with the Companys policies prior to the date of Executives termination of employment; provided that claims for such reimbursement (accompanied by appropriate supporting documentation) are submitted to the Company within ninety (90) days following the date of Executives termination of employment; and
(C) all amounts and benefits then or thereafter due to Executive under the then or thereafter applicable terms of any applicable plan, program, agreement or arrangement of the Company or any of its subsidiaries (the amounts described in clauses (A) through (C) hereof being referred to as the Accrued Rights).
Following such termination of Executives employment by the Company for Cause in accordance herewith or by Executive without Good Reason (other than due to death or Disability), except as set forth in this Section 7(a)(ii) and Section 11, Executive shall have no further rights to any compensation or any other benefits under this Agreement.
(iii) For purposes of this Agreement, the terms:
(A) Cause shall mean (I) Executives failure to attempt in good faith to perform Executives duties hereunder, which failure, if curable, is not cured within fifteen (15) days following written notice from the Board specifying the failure and requesting cure, (II) Executives indictment, conviction or the pleading of guilty or nolo contendere to (x) a felony or (y) a crime that is not a felony involving moral turpitude or material dishonesty which, solely in the case of clause (y), is materially injurious to the Company and its subsidiaries, (III) Executive engages in willful and material malfeasance or willful and material misconduct that, in either case, is materially injurious to the Company and its subsidiaries, or (IV) willful breach by Executive of the material terms of this Agreement including, without limitation, Sections 8 and 9 of this Agreement, which breach, if curable, is not cured within fifteen (15) days following written notice from the Board specifying the failure and requesting cure. For purposes of this definition, no act or failure to act by Executive shall be deemed willful unless effected by Executive not in good faith. No termination shall be treated as for Cause without a Board hearing and a majority Board vote (excluding, however, Executive, to the extent Executive is a member of the Board) prior to the termination.
(B) Good Reason shall mean, the occurrence of any of the following events without Executives consent, with any changes in duties, roles, responsibilities and compensation in connection with the transition from Chief Executive Officer to Executive Chair as set forth herein shall be deemed to have been made with Executives consent, (I) any material diminution in Executives duties, authorities, or responsibilities, or the assignment of duties that are materially inconsistent with, or that significantly impair Executives ability to perform, Executives duties as Chief Executive Officer of the Company or as Executive Chair of the Company, as applicable at the relevant time, (II) any material adverse change in Executives position or reporting structure, including ceasing to be the Chief Executive Officer of the Company or Executive Chair of the Company, as applicable at the relevant time, or ceasing to be a member of the Board, (III) any reduction in Executives Base Salary or target annual bonus opportunity (other than as set forth herein or a general reduction in base salary or target annual bonus opportunity that affects all members of senior management proportionately), (IV) any material failure of the Company to pay compensation or benefits when due under this Agreement, (V) during the CEO Period, any relocation of the Companys principal office or of Executives principal place of employment to a location more than 50 miles from its location in Somerset, New Jersey, as of the Effective Date or (VI) any failure by the Company to obtain the assumption in writing of its obligation to perform this Agreement by any successor to all or substantially all of the assets of the Company. No termination of Executives employment based on a specified Good Reason event shall be effective as a termination for Good Reason unless (x) Executive gives notice to the Company of such event within ninety (90) days after Executive learns that such event has occurred (or, in the case of any event described in clauses (V) or (VI), within thirty (30) days after Executive learns that such event has occurred), (y) such Good Reason event is not fully cured within thirty (30) days after such notice (such period, the Cure Period), and (z) Executives employment hereunder terminates within sixty (60) days following the end of the Cure Period.
b. Disability or Death.
(i) The Employment Term and Executives employment hereunder shall terminate upon Executives death and may be terminated by the Company if Executive becomes physically or mentally incapacitated and is therefore unable for a period of six (6) consecutive months or for an aggregate of nine (9) months in any twenty-four (24) consecutive month period to perform Executives duties (such incapacity is hereinafter referred to as Disability). Any question as to the existence of the Disability of Executive as to which Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Parties. If the Parties cannot agree as to a qualified independent physician, Executive shall appoint a physician and the Company shall appoint a physician and those two physicians shall select a third physician who shall make such determination in writing. The determination of Disability made in writing to the Parties shall be final and conclusive for all purposes of this Agreement.
(ii) Upon termination of Executives employment hereunder due to either Disability or death, in each case, Executive or Executives estate (as the case may be) shall be entitled to receive:
(A) the Accrued Rights; and
(B) a pro-rata portion of the Annual Bonus, if any, that Executive would have been entitled to receive pursuant to Section 4 hereof for the bonus year during which the date of termination of employment occurs based on the Companys actual performance in respect of the such bonus year, assuming Executive was employed for such full bonus year, multiplied by a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the fiscal year in which Executives date of termination occurs, and the denominator of which is 365 (the Pro-Rata Bonus), with such Pro-Rata Bonus payable in accordance with the terms of the Plan as if Executives employment had not terminated.
Following Executives termination of employment due to death or Disability, except as set forth in this Section 7(b)(ii) and Section 11, Executive shall have no further rights to any compensation or any other benefits under this Agreement.
c. By the Company Without Cause; Resignation by Executive for Good Reason.
(i) The Employment Term and Executives employment hereunder may be terminated by the Company without Cause (other than by reason of death or Disability) or by Executives resignation for Good Reason.
(ii) If Executives employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns for Good Reason, in each case, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) the Pro-Rata Bonus, with such Pro-Rata Bonus payable in accordance with the terms of the Plan as if Executives employment had not terminated;
(C) provided Executive executes and delivers a general release of claims against the Company and its affiliates, in the form attached hereto as Exhibit A (the Release), within sixty (60) days following the date of Executives termination of employment and does not revoke such Release within the time period provided therein, payment of an amount equal to (X) if such termination of employment occurs during the CEO Period, two (2) times the sum of (1) Executives then annualized Base Salary and (2) the then-applicable Target Bonus, payable in substantially equal monthly installments over a two-year period following the date of termination of employment or (Y) if such termination of employment occurs during the Executive Chair Period, the sum of (1) Executives Base Salary for the remaining portion of the Executive Chair Period and (2) the then-applicable Target Bonus, payable in substantially equal monthly installments over the remainder of the Executive Chair Period (the applicable period pursuant to clause (X) or (Y) above, the Severance Period), consistent with the Companys past payroll practices; provided, however, that, if such termination occurs within the two (2) year period following a Change of Control (as defined in the Plan) (which event would also constitute a change in the ownership or effective control of a corporation or a change in the ownership of a substantial portion of the assets of a corporation, in each case, within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the Code)), such payment shall instead be made in a single lump sum payment within thirty (30) days following the termination date; provided further that, in either case, the Company reserves the right to cease making such payments and Executive shall be obligated to repay any such amount to the Company already paid if Executive fails to execute and deliver the Release within the period provided for in this Section 7(c)(ii)(C) or, after timely delivery, revokes it within the time period specified in such Release; and
(D) Executive and Executives spouse and eligible dependents (to the extent covered immediately prior to such termination) shall continue to be eligible to participate in all of the Companys and its subsidiaries group health plan(s) for which Executive was eligible immediately prior to the date of Executives termination (or to the extent such coverage is not permissible under the terms of such plan(s), comparable coverage) commencing on the first day of the Severance Period and ending on the earlier to occur of (x) the expiration of the Severance Period and (y) the date Executive is or becomes eligible for coverage under the group health plan(s) of another employer (or comparable coverage to the extent applicable) (such period, the Continued Coverage Period); provided, however, that, if such coverage is longer than eighteen (18) months and such continued coverage
cannot be provided under the applicable plan(s), the Company shall pay Executive, on the first business day of each month, an amount equal to the premium subsidy the Company would have otherwise paid on Executives behalf for such coverage during the balance of the Continued Coverage Period. The COBRA health care continuation coverage period under Section 4980B of the Code, or any replacement or successor provision of United States tax law, shall run concurrently with the Severance Period.
Notwithstanding the foregoing, the Companys obligation to make the payments contemplated under Section 7(c)(ii)(C) above shall cease in the event of Executives material breach of Section 8 or 9, which breach remains uncured for a period of ten (10) days following the Companys written notice to Executive of such breach.
Following Executives termination of employment by the Company without Cause (other than by reason of Executives death or Disability) or by Executives resignation for Good Reason, except as set forth in this Section 7(c)(ii) and Section 11, Executive shall have no further rights to any compensation or any other benefits under this Agreement.
d. Any payments under this Section 7 shall not be taken into account for purposes of any retirement plan (including any supplemental retirement plan or arrangement) or other benefit plan sponsored by the Company or any of its subsidiaries except as otherwise expressly required by such plans or applicable law.
e. Notice of Termination. Any purported termination of employment by a Party (other than due to Executives death) shall be communicated by written Notice of Termination to the other Party in accordance with Section 12(k) hereof. For purposes of this Agreement, a Notice of Termination shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of employment under the provision so indicated.
f. Board/Committee Resignation. Upon termination of Executives employment for any reason, Executive agrees to resign, as of the date of such termination and to the extent applicable, from the Board (and any committees thereof) and the board of directors (and any committees thereof) of any of the Companys affiliates.
8. Restrictive Covenants.
a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and accordingly agrees as follows:
(1) During the Employment Term and for a period of one (1) year following the date Executive ceases to be employed by the Company for any reason, Executive will not, whether on Executives own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (Person), directly or indirectly, solicit or assist in soliciting or cause any other Person or entity to solicit or assist in soliciting, in competition with the Company or any of its subsidiaries or affiliates, the business of any client or prospective client:
with whom Executive had personal contact or dealings on behalf of the Company or any of its subsidiaries during the one year period preceding Executives termination of employment;
with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company or any of its subsidiaries during the one year immediately preceding Executives termination of employment; or
for whom Executive had direct or indirect responsibility during the one year immediately preceding Executives termination of employment.
(2) During the Employment Term and for a period of one year following the date Executive ceases to be employed by the Company for any reason, Executive will not directly or indirectly, whether on Executives own behalf or on behalf of or in conjunction with any other Person, directly or indirectly:
engage in any business that competes with the business of the Company or any of its subsidiaries or affiliates, including, but not limited to, providing formulation/dose form
|technologies and/or contract services to pharmaceutical, biotechnology, over-the-counter and vitamins/minerals/supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product, or service of the type developed, manufactured, or sold by the Company or any of its subsidiaries or affiliates (including, without limitation, any other business that the Company or any of its subsidiaries or affiliates have plans to engage in as of the termination date) in any geographical area where the Company or any of its subsidiaries or affiliates conducts business (a Competitive Business);|
enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee, or consultant; or
interfere with, or attempt to interfere with, any business relationship (whether formed before, on, or after the date of this Agreement) between the Company or any of its subsidiaries or affiliates and any customer, client, supplier, or investor of the Company or any of its subsidiaries or affiliates.
(3) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in any Competitive Business that are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group that controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person. Any such qualifying ownership shall not be deemed to be engaging in Competitive Activity for purposes of this Agreement.
(4) During the Employment Term and for a period of two (2) years following the date Executive ceases to be employed by the Company for any reason, Executive will not, whether on Executives own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
solicit or, other in the ordinary course of performing Executives duties for the Company, encourage any employee of the Company or any of its subsidiaries to leave the employment of the Company or any of its subsidiaries; or
hire any such employee who was employed by the Company or any of its subsidiaries as of the date of Executives termination of employment with the Company or who left the employment of the Company or any of its subsidiaries coincident with, or within twelve (12) months prior to, the termination of Executives employment with the Company.
(5) During the Employment Term and for a period of two (2) years following the date Executive ceases to be employed by the Company for any reason, Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company or any of its subsidiaries any consultant then under contract with the Company or any of its subsidiaries.
(6) Notwithstanding anything herein to the contrary, upon a Change of Control, the definition of the Company, its subsidiaries and affiliates and their respective employees, independent contractors, clients and prospective clients for purposes of this Section 8 shall refer only to the Company, its subsidiaries and affiliates (and the businesses in which they were engaged or had active plans to engage in), their respective employees, independent contractors, clients and prospective clients, in each case, as of the date immediately prior to such Change of Control.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 8 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be
deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
c. The provisions of this Section 8 shall survive the termination of Executives employment for any reason.
9. Confidentiality; Intellectual Property.
(i) Executive will not at any time (whether during or after Executives employment with the Company), other than in the ordinary course of business for the Company or any of its subsidiaries (x) retain or use for the benefit, purposes or account of Executive or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person outside the Company (other than its professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information of the Company or any of its subsidiaries including without limitation trade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the Company, its subsidiaries or affiliates and/or any third party that has disclosed or provided any of same to the Company or any of its subsidiaries or affiliates on a confidential basis (Confidential Information) without the prior written authorization of the Board. Notwithstanding anything herein to the contrary, Executive shall not be prohibited from disclosing Confidential Information in connection with any litigation, arbitration or mediation involving this Agreement or any other agreement among or between the Parties.
(ii) Confidential Information shall not include any information that is (a) generally known to the industry or the public other than as a result of Executives breach of this covenant or any breach of other confidentiality obligations by third parties; (b) made legitimately available to Executive by a third party without breach of any confidentiality obligation; or (c) required by law to be disclosed or in any judicial or administrative process; provided that, unless prohibited by law or regulation, Executive shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and cooperate with any attempts by the Company to obtain a protective order or similar treatment.
(iii) Upon termination of Executives employment with the Company for any reason, Executive shall (x) cease and not thereafter commence use of any Confidential Information or intellectual property (including, without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the Company or any of its subsidiaries or affiliates, (y) immediately destroy, delete, or return to the Company, at the Companys option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in Executives possession or control (including any of the foregoing stored or located in Executives office, home, laptop or other computer, whether or not property of the Company) that contain Confidential Information or otherwise relate to the business of the Company or any of its affiliates or subsidiaries, except that Executive may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information as well as any information Executive reasonably believes is necessary for tax purposes, and (z) notify and fully cooperate with the Company regarding the delivery or destruction of any other Confidential Information of which Executive is or becomes aware.
b. Intellectual Property.
(i) If Executive creates, invents, designs, develops, contributes to or improves any works of authorship, inventions, intellectual property, materials, documents or other work product (including without limitation, research, reports, software, databases, systems, applications, presentations, textual works, content, or audiovisual materials), either alone or with third parties, at any time during Executives employment by the Company and within the scope of such employment and/or with the use of any the Companys resources (Company Works), Executive shall promptly and fully disclose same to the Company and hereby irrevocably assigns, transfers and conveys, to the
maximum extent permitted by applicable law, all rights and intellectual property rights therein (including rights under patent, industrial property, copyright, trademark, trade secret, unfair competition and related laws) to the Company to the extent ownership of any such rights does not vest originally in the Company.
(ii) Executive agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form or media requested by the Company) of all Company Works. The records will be available to and remain the sole property and intellectual property of the Company at all times.
(iii) Executive shall take all requested actions and execute all requested documents (including any licenses or assignments required by a government contract) at the Companys expense (but without further remuneration) to assist the Company in validating, maintaining, protecting, enforcing, perfecting, recording, patenting or registering any of the Companys rights in the Company Works. If the Company is unable for any other reason to secure Executives signature on any document for this purpose, then Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Executives agent and attorney in fact, to act for and on Executives behalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.
(iv) Executive shall not improperly use for the benefit of, bring to any premises of, divulge, disclose, communicate, reveal, transfer or provide access to, or share with the Company any confidential, proprietary or non-public information or intellectual property relating to a former employer or other third party without the prior written permission of such third party. Executive shall comply with all relevant policies and guidelines of the Company including regarding the protection of confidential information and intellectual property and potential conflicts of interest (the Company Policies). In the event of a conflict between this Agreement and the Company Policies, this Agreement shall control. Executive acknowledges that the Company may amend any such policies and guidelines from time to time, and that Executive remains at all times bound by their most current version.
c. The provisions of this Section 9 shall survive the termination of Executives employment for any reason.
d. Except as otherwise set forth in Sections 7, 8 and 9 or as otherwise agreed to by Executive in writing, there shall be no contractual or similar restrictions on Executives right to terminate Executives employment, to compete, to solicit or to use or disclose confidential information following the date Executives employment terminates for which the Company may obtain injunctive relief or which relate to the payments, rights and benefits provided for under this Agreement.
10. Specific Performance. Executive acknowledges and agrees that the Companys remedies at law for a breach or threatened breach of any of the provisions of Section 8 or Section 9 would be inadequate and the Company would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, (x) in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to obtain equitable relief from a court of competent jurisdiction or any arbitral panel convened pursuant to Section 12(c) of this Agreement in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available and (y) in the event of such a breach (not a threatened breach), the Company shall be entitled to cease making any payments or providing any benefit to the extent provided for in Sections 7(c) and 7(d).
a. The Company shall indemnify Executive (and Executives legal representatives, heirs or other successors), to the fullest extent permitted by applicable law and the Companys by-laws, against all reasonable costs, charges and expenses incurred or sustained by Executive (or Executives legal representatives, heirs or other successors), including the reimbursement of the reasonable cost and expenses of legal counsel, in connection with any action, suit or proceeding to which Executive (or Executives legal representatives, heirs or other successors) may be made a party by reason of Executive being or having been an officer, director, or employee of the Company or any of its subsidiaries or affiliates or Executives serving or having served as a director, officer or employee at the request of the Company of any other enterprise. Executives rights under this Section 11(a) shall continue without time limit for so long as Executive may be subject to any such liability, whether or not the Employment Term may have ended.
b. Executive shall be covered during the entire term of this Agreement and thereafter for as long as a claim may be brought against Executive, by officer and director liability insurance in amounts and on terms no less favorable to Executive in any respect than the coverage afforded to other current or former executives and/or directors of the Company or any of its affiliates, which such insurance shall be paid by the Company.
a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws principles thereof.
b. Legal Fees. Within thirty (30) days following the Effective Date, Executive shall be entitled to be reimbursed by the Company for the reasonable legal fees and expenses incurred in connection with negotiating and documenting this Agreement, subject to (x) receiving customary back-up documentation regarding such fees and expenses and (y) an aggregate cap of $20,000.
c. Arbitration. Except as otherwise provided in Section 10 of this Agreement, any controversy, dispute or claim arising out of, in connection with, or in relation to, the interpretation, performance or breach of this Agreement, including, without limitation, the validity, scope and enforceability of this Section, may at the election of either Party, be solely and finally settled by arbitration conducted in New York, New York, by and in accordance with the then existing rules for commercial arbitration of the American Arbitration Association, or any successor organization and with the Expedited Procedures thereof (collectively, the Rules). The Company shall select one arbitrator, Executive shall select one arbitrator and the two arbitrators so designated shall select a third arbitrator; provided that such arbitrators shall be experienced in deciding cases concerning the matter which is the subject of the dispute. Each of the Parties further agrees that the determination of the arbitrators shall be by reasoned award and that the arbitrators shall apply the substantive laws of the State of Delaware. Any of the Parties may demand arbitration by written notice to the others and to the Arbitrator set forth in this Section 12(c). Each of the Parties agrees that if possible, the award shall be made in writing no more than thirty (30) days following the end of the proceeding. Any award rendered by the arbitrators shall be final and binding and judgment may be entered on it in any court of competent jurisdiction sitting in the State of Delaware. Each of the Parties hereto agrees to treat as confidential the results of any arbitration (including, without limitation, any findings of fact and/or law made by the arbitrator) and not to disclose such results to any unauthorized person. The Parties intend that this agreement to arbitrate be valid, enforceable and irrevocable. In the event of any arbitration with regard to this Agreement, each Party shall pay its own legal fees and expenses.
d. Entire Agreement/Amendments. This Agreement, together with agreements providing for the grant of equity awards pursuant to the Plan (the Award Agreements), contains the entire understanding of the Parties with respect to the employment of Executive by the Company and shall be binding on the Parties as of the date hereof. Except with respect to any restrictive covenants set forth in an Award Agreement with Executive, there are no restrictions, agreements, promises, warranties, covenants, or undertakings between the Parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the Parties hereto.
e. No Waiver. The failure of a Party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such Partys rights or deprive such Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. No provision of this Agreement may be waived or discharged unless such waiver or discharge is agreed to in writing, signed by the Party against whom the waiver or discharge is being enforced, and which specifically references the provision being waived or discharged. No waiver by any Party hereto at any time of any breach by any other Party or compliance with any condition or provision of this Agreement to be performed by such other Party will be deemed to be a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
f. Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
g. Assignment. This Agreement, and all of Executives rights and duties hereunder, shall not be assignable or delegable by Executive other than rights that may be transferred by Executives will or by the laws of
descent and distribution. Any purported assignment or delegation by Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. This Agreement may be assigned by the Company to a person or entity which is an affiliate or a successor in interest to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become the rights and obligations of such affiliate or successor person or entity.
h. Set Off; Mitigation. The Companys obligation to pay Executive the amounts provided and to make the arrangements provided hereunder shall only be subject to setoff, counterclaim or recoupment of amounts owed by Executive to the Company or any of its affiliates to the extent provided for herein. Executive shall not be required to mitigate the amount of any payment provided for pursuant to this Agreement by seeking other employment. The Companys obligation to make the payments and provide the benefits required under Section 7 hereof shall not be reduced or otherwise affected by any compensation or benefits paid or provided to Executive as a result of any other employment (except to the extent otherwise provided in Section 7(c)(ii)(D) or Section 7(d)(ii)(C) with respect to the time when the Companys obligation to provide continued group health coverage ceases).
i. Compliance with Section 409A of the Code. This Agreement is intended to comply with Section 409A of the Code, to the extent applicable, and will be interpreted accordingly. References under this Agreement to Executives termination of employment shall be deemed to refer to the date upon which Executive has experienced a separation from service within the meaning of Section 409A of the Code. Notwithstanding anything herein to the contrary, (i) if at the time of Executives termination of employment with the Company and its affiliates Executive is a specified employee as defined in Section 409A of the Code (and any related regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) until the date that is six months following Executives termination of employment with the Company and its affiliates (or the earliest date as is permitted under Section 409A of the Code), at which point all payments deferred pursuant to this Section 12(i) shall be paid to Executive in a lump sum and (ii) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute deferred compensation under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treasury Regulation Section 1.409A-3(i)(1)(iv). For purposes of Section 409A of the Code, each payment made under this Agreement will be designated as a separate payment within the meaning of Section 409A of the Code. The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 12(i); provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto.
j. Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. In the event of Executives death while any payment, benefit or entitlement is due to Executive under this Agreement or any other agreement between or among Executive and the Company (or any of its affiliates), except as may otherwise be prohibited by the terms of such other agreement, such payment, benefit or entitlement shall be paid or provided to Executives designated beneficiary (or if Executive has not designated a beneficiary, to Executives estate).
k. Notice. For the purpose of this Agreement, notices, consents that are explicitly required to be in writing hereunder, and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days after it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below in this Agreement, or to such other address as either Party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.
If to the Company:
Somerset, NJ 08873
Attention: General Counsel
If to Executive:
To the most recent address of Executive set forth in the personnel records of the Company
with a required copy to:
Laura J. Petrie
Petrie + Pettit
250 East Wisconsin Av, Suite 1000
Milwaukee, WI 53202
l. Executive Representation. Executive hereby represents to the Company that the execution and delivery of this Agreement by Executive and the performance by Executive of Executives duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement, separation agreement or other agreement or policy to which Executive is a party or otherwise bound.
m. Company Representations. The Company represents to Executive that (i) the execution, delivery and performance of this Agreement by it has been fully and validly authorized by all necessary corporate actions, (ii) the officer signing this Agreement on behalf of the Company is duly authorized to do so, and (iii) upon execution and delivery of this Agreement by the Parties, it shall be a valid and binding obligation of the Company enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally.
n. Prior Agreements. This Agreement supersedes all prior agreements and understandings (including, without limitation, any verbal agreements and the Prior Agreement) between Executive and the Company and/or its affiliates regarding the terms and conditions of Executives employment with the Company. In the event of any conflict between any provision of this Agreement, including Exhibit A, and any other provision of any plan, policy, program, arrangement or other agreement of the Company or any of its subsidiaries or affiliates, this Agreement (or such exhibit) shall control.
o. Further Assurances. The Parties shall, with reasonable diligence, do all things and provide all reasonable assurances as may be required to complete the transactions contemplated by this Agreement, and each Party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to give effect to this Agreement and carry out its provisions.
p. Cooperation. If and to the extent requested by the Company, Executive shall provide Executives reasonable cooperation in connection with any action or proceeding (or any appeal from any action or proceeding) which relates to events occurring during Executives employment hereunder relating to the Company or any of its subsidiaries and of which Executive has knowledge (or reasonably should have had knowledge); provided that such cooperation is not adverse to Executives legal interests. The Company shall reimburse Executive promptly for Executives reasonable out-of-pocket expenses (including travel costs, lodging, meals); provided that such reimbursement shall be made no later than the end of the calendar year after the year in which the expenses are incurred. This provision shall survive any termination of this Agreement.
q. Survivability. Except as otherwise expressly set forth in this Agreement, upon the expiration of the Employment Term, the respective rights and obligations of the Parties shall survive such expiration to the extent necessary to carry out the intentions of the Parties as embodied in the rights (such as vested rights) and obligations of the Parties under this Agreement.
r. Withholding Taxes. The Company or any of its subsidiaries may withhold from any amounts payable under this Agreement such Federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
s. Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the day and year first above written.
|CATALENT, INC.||JOHN R. CHIMINSKI|
|By:||Steven L. Fasman|
|Title:||Senior Vice President & General Counsel|
[SIGNATURE PAGE TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT]
RELEASE AND WAIVER OF CLAIMS
This Release and Waiver of Claims (Release) is entered into as of this day of , 20 , by and between Catalent, Inc. (the Company) and John R. Chiminski (Executive).
The Executive and the Company agree as follows:
1. The employment relationship between Executive and the Company and its subsidiaries and affiliates terminated on (the Termination Date).
2. In accordance with the amended and restated employment agreement, entered into as of January 4, 2022, between Executive and the Company, as it may be amended from time to time (the Employment Agreement), Executive is entitled to receive certain payments and benefits after the Termination Date.
3. In consideration of the above, the sufficiency of which Executive hereby acknowledges, Executive, on behalf of Executive and Executives heirs, executors and assigns, hereby releases and forever discharges the Company and its members, parents, affiliates, subsidiaries, divisions, any and all current and former directors, officers, employees, agents, and contractors and their heirs and assigns, and any and all employee pension benefit or welfare benefit plans of the Company and its subsidiaries, including current and former trustees and administrators of such employee pension benefit and welfare benefit plans (but with respect to any individual and any agent, trustee or administrator only in their official capacities for the Company and not in their individual capacities unrelated to the Company) (the Released Parties), from all claims, charges, or demands, in law or in equity, whether known or unknown, which may have existed or which may now exist from the beginning of time to the date of this Release, relating to any claims Executive may have arising from or relating to (i) Executives employment or termination from employment with the Company, (ii) Executives service as a director of the Company and the cessation of such service and (iii) Executives investment in the Company (other than any rights expressly provided for in, or arising out of, the related equity and shareholder documents), including a release of any rights or claims Executive may have under Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991 (which prohibits discrimination in employment based upon race, color, sex, religion, and national origin); the Americans with Disabilities Act of 1990, as amended, and the Rehabilitation Act of 1973 (which prohibits discrimination based upon disability); the Family and Medical Leave Act of 1993 (which prohibits discrimination based on requesting or taking a family or medical leave); Section 1981 of the Civil Rights Act of 1866 (which prohibits discrimination based upon race); Section 1985(3) of the Civil Rights Act of 1871 (which prohibits conspiracies to discriminate); the Employee Retirement Income Security Act of 1974, as amended (which prohibits discrimination with regard to benefits); the Fair Labor Standards Act, as amended, 29 U.S.C. Section 201 et. seq.; any other federal, state or local laws against discrimination; or any other federal, state, or local statute, or common law relating to employment, wages, hours, or any other terms and conditions of employment. This includes a release by Executive of any and all claims or rights arising under contract, covenant, public policy, tort or otherwise.
4. Executive acknowledges that Executive is waiving and releasing any rights that Executive may have under the Age Discrimination in Employment Act of 1967, as amended (ADEA) and that this Release is knowing and voluntary. Executive and the Company agree that this Release does not apply to any rights or claims that may arise under the ADEA after the effective date of this Agreement. Executive acknowledges that the consideration given for this Release is in addition to anything of value to which Executive is already entitled. Executive further acknowledges that Executive has been advised by this writing that: (i) Executive should consult with an attorney prior to executing this Release; (ii) Executive has at least twenty-one (21) days within which to consider this Release, although Executive may, at Executives discretion, sign and return this Release at an earlier time; (iii) for a period of 7 days following the execution of this Release in duplicate originals, Executive may revoke this Release, and this Release shall not become effective or enforceable, and neither the Company nor any other person is obligated to provide any benefits to Executive until the revocation period has expired; and (iv) nothing in this Release prevents or precludes Executive from challenging or seeking a determination in good faith of the validity of this Release under the ADEA, nor does it impose any condition precedent, penalties or costs for doing so, unless specifically authorized by federal law. If Executive has not returned the signed Release within the time permitted in the Employment Agreement, then the offer of payments and benefits set forth in the Employment Agreement will expire by its own terms at such time.
5. This Release does not release the Released Parties from (i) any obligations due to Executive under the Employment Agreement or under this Release, (ii) any rights Executive has to indemnification, reimbursement of expenses by the Company under the Employment Agreement or otherwise or coverage under directors and officers liabilities insurance policies, (iii) any vested rights Executive has under any employee pension benefit and welfare benefit plans of the Company or any of its subsidiaries in which Executive participated, or (iv) any vested awards (or awards which may vest) which Executive has under any equity, equity-based, profits interest, stock option, or similar plans, agreements, and/or notices, which awards shall be subject to all the terms and conditions of such documents.
6. This Release is not an admission by the Released Parties of any wrongdoing, liability or violation of law.
7. Executive waives any right to reinstatement or future employment with the Company following Executives separation from the Company on the Termination Date.
8. Executive agrees to refrain from making any statement, oral or written, which disparages the relationships between the Company and its subsidiaries and affiliates and the Company and its subsidiaries employees, customers, suppliers and/or others. Notwithstanding the foregoing, Executive shall be permitted to respond to incorrect, disparaging or derogatory statements about Executive to the extent reasonably necessary to correct or refute such statements or to make any truthful statement to the extent necessary in connection with any arbitration or litigation involving any agreement between Executive and the Company or any of its subsidiaries or as required by law or by any court, arbitrator, or administrative or legislative body with apparent or actual jurisdiction to order Executive to disclose or make accessible any information.
9. Executive shall continue to be bound by Sections 8, 9, and 12(p) of the Employment Agreement.
10. Executive shall promptly return all property in Executives possession of the Company or any of its subsidiaries and affiliates, including, but not limited to, keys, credit cards, cellular phones, computer equipment, software and peripherals and originals or copies of books, records, or other information pertaining to the Company or any of its subsidiaries or affiliates businesses. In addition, Executive shall promptly return all electronic documents or records relating to the Company or any of its subsidiaries or affiliates that Executive may have saved to any such cellular phone, laptop computer or other electronic or storage device, whether business or personal, including any PowerPoint or other presentation stored in hard copy or electronically. Further, if Executive stored any information relating to the Company on a personal computer or other storage device, Executive shall permanently delete all such information; provided, however, that, prior to deleting that information, Executive shall print out one copy and provide it to the Company. Nothing herein shall require Executive to return property, documents or information he is permitted to retain under Section 9 of the Employment Agreement.
11. This Release shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to the principles of conflict of laws. Exclusive jurisdiction with respect to any legal proceeding brought concerning any subject matter contained in this Release shall be settled in the manner provided in the Employment Agreement.
12. This Release represents the complete agreement between Executive and the Company concerning the subject matter in this Release and supersedes all prior agreements or understandings, written or oral. This Release may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives.
13. Each of the sections contained in this Release shall be enforceable independently of every other section in this Release, and the invalidity or unenforceability of any section shall not invalidate or render unenforceable any other section contained in this Release.
14. The Executive acknowledges that Executive has carefully read and understands this Release, that Executive has the right to consult an attorney with respect to its provisions and that this Release has been entered into voluntarily. Executive acknowledges that no representation, statement, promise, inducement, threat or suggestion has been made by any of the Released Parties to influence Executive to sign this Release except such statements as are expressly set forth herein or in the Employment Agreement.
The parties to this Release have executed this Release as of the day and year first written above.
|CATALENT, INC.||JOHN R. CHIMINSKI|