Form of Global Performance Restricted Stock Unit Award Agreement under Syneos Health, Inc. 2018 Equity Incentive Plan (Non-U.S. Participants) (2022)

EX-10.11.8 5 synh-ex10118_430.htm EX-10.11.8 2022 FORM OF PRSU AWARD AGREEMENT NON-US synh-ex10118_430.htm

Exhibit 10.11.8

SYNEOS HEALTH, INC.
2018 Equity Incentive Plan

Global Performance Restricted Stock Unit Award Agreement

This Global Performance Restricted Stock Unit Award Agreement including any special terms and conditions for the Participant’s country set forth in Appendix B, attached hereto (the Global Performance Restricted Stock Unit Agreement, the Appendix B and all other appendices attached hereto, collectively, the “Agreement”), is made by and between Syneos Health, Inc., a Delaware corporation (the “Company”), and [Participant Name] (the “Participant”), effective as of [Grant Date] (the “Date of Grant”).

Attention: Attached to this Agreement as Appendix D is a Restrictive Covenants Agreement, which imposes certain restrictions upon you both during and after your employment with the Company.  Your acceptance of the Restricted Stock Unit Award requires that you agree to the terms and conditions of this Agreement and the Restrictive Covenants Agreement.  It is important that you review the terms of each of these Agreements

RECITALS

WHEREAS, the Company has adopted the Syneos Health, Inc. 2018 Equity Incentive Plan (as the same may be amended and/or amended and restated from time to time, the “Plan”), which Plan is incorporated herein by reference and made a part of this Agreement, and capitalized terms not otherwise defined in this Agreement will have the meanings ascribed to those terms in the Plan; and

WHEREAS, the Committee has authorized and approved the grant of an Award to the Participant of Performance Restricted Stock Units payable in shares of Common Stock (the “Shares”), subject to the terms and conditions set forth in the Plan and this Agreement.

NOW THEREFORE, in consideration of the premises and mutual covenants set forth in this Agreement, the parties agree as follows:

1

US-DOCS ###-###-####.3

 

---

 

2

US-DOCS ###-###-####.3

---

 

Notwithstanding the foregoing, if the Company receives a legal opinion that there has been a legal judgment and/or legal development in the Participant’s jurisdiction that likely would result in the favorable treatment that applies to the PRSUs if the Participant attains the conditions set forth in this Section 2(c) being deemed unlawful and/or discriminatory, the provisions above regarding the treatment of the PRSUs shall not be applicable to the Participant.

As used in this Agreement, “Qualifying Event” shall mean a Change in Control or a Significant Transaction.

As used in this Agreement, a “Significant Transaction” shall mean any transaction, including without limitation a reorganization, merger or consolidation, to which the

3

US-DOCS ###-###-####.3

---

 

Company is a party that does not constitute a Change in Control but with respect to which any Persons become the Beneficial Owners, directly or indirectly, of more than forty percent (40%) of the combined voting power of the outstanding voting securities entitled to vote generally in the election of directors (or election of members of a comparable governing body) of the Successor Entity.

As used in this Agreement, “Good Reason” shall mean the occurrence, without the Participant’s express written consent, of any of the following events: (i) a material reduction in the Participant’s annual base salary; (ii) a material adverse change to the Participant’s title compared to the Participant’s title immediately prior to the Change in Control; (iii) a requirement that the Participant relocate to a principal place of employment more than fifty (50) miles from the Participant’s assigned principle office location as of immediately prior to the occurrence of the Change in Control; or (iv) if the Participant has an effective employment agreement, service agreement, or other similar agreement with the Company or any Subsidiary, a material breach of such agreement, provided, that, any event described in clauses (i), (ii), (iii) and (iv) above shall constitute Good Reason only if the Participant provides the Company with written notice of the basis for the Participant’s Good Reason within forty-five (45) days of the initial actions or inactions of the Company or any Subsidiary giving rise to such Good Reason and the Company or applicable Subsidiary has not cured the identified actions or inactions within sixty (60) days of such notice, and provided further that the Participant terminates his or her Service within thirty (30) days following the Company’s or applicable Subsidiary’s failure to cure within the 60-day cure period.

Any vesting acceleration contemplated under this Section 2(e) shall be subject to the limitations provided in Section 5.5 of the Plan.

4

US-DOCS ###-###-####.3

---

 

5

US-DOCS ###-###-####.3

---

 

The Company may withhold or account for Tax-Related Items by considering statutory withholding amounts or other applicable withholding rates, including the maximum applicable rates in the Participant’s jurisdiction(s). In the event of over-withholding, the Participant may receive a refund of any over-withheld amount in cash (with no entitlement to the equivalent amount in Common Stock) from the Company or the Employer.  In the event of under-withholding, the Participant may be required to pay any additional Tax-Related Items directly to the applicable tax authority or to the Company and/or the Employer.  If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Participant is deemed to have been issued the full number of Shares subject to the vested PRSUs, notwithstanding that a number of the Shares is held back solely for the purpose of paying the Tax-Related Items.

Finally, the Participant agrees to pay to the Company or the Employer, including through withholding from the Participant’s wages or other cash compensation payable to the Participant by the Company and/or the Employer, any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of the Participant’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if the Participant fails to comply with the Participant’s obligations in connection with the Tax-Related Items.

In addition, to the extent that any U.S. Federal Insurance Contributions Act tax withholding obligations arise in connection with the PRSUs prior to the applicable vesting or settlement date, the Committee shall accelerate the payment of a portion of the award of PRSUs sufficient to satisfy (but not in excess of) such tax withholding obligations and any tax withholding obligations associated with any such accelerated payment, and the Committee shall withhold such amounts in

6

US-DOCS ###-###-####.3

---

 

satisfaction of such withholding obligations pursuant to the tax withholding method noted in alternative (4) above.

7

US-DOCS ###-###-####.3

---

 

8

US-DOCS ###-###-####.3

---

 

The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participant’s personal data as described in this Agreement and any other PRSU grant materials by and among, as applicable, the Employer, the Company and its Subsidiaries for the purpose of implementing, administering and managing the Participant’s participation in the Plan.

The Participant understands that the Company and the Employer may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address, email address and telephone number, date of birth, passport, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all RSUs, Performance RSUs or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.

The Participant understands that Data will be transferred to Fidelity Stock Plan Services, LLC or any other broker selected by the Company, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting the Syneos Health, Inc.Human Resources Department ***@***). The Participant authorizes the Company, Fidelity Stock Plan Services, LLC or any other broker selected by the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purpose of implementing, administering and managing the Participant’s participation in the Plan. The Participant understands that Data will be held only as long

9

US-DOCS ###-###-####.3

---

 

as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that the Participant may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Syneos Health, Inc. Human Resources Department ***@***). Further, the Participant understands that the Participant is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if the Participant later seeks to revoke the Participant’s consent, the Participant’s Service with the Employer will not be affected; the only consequence of refusing or withdrawing the Participant’s consent is that the Company would not be able to grant PRSUs or other equity awards to the Participant or administer or maintain such awards. Therefore, the Participant understands that refusing or withdrawing the Participant’s consent may affect the Participant’s ability to participate in the Plan. For more information on the consequences of the Participant’s refusal to consent or withdrawal of consent, the Participant understands that the Participant may contact the Syneos Health, Inc. Privacy Office ( ***@***).

Finally, upon request by the Company or the Employer, the Participant agrees to provide an executed data privacy consent form (or any other agreements or consents) that the Company and/or the Employer may deem necessary to obtain from the Participant for the purpose of administering the Participant’s participation in the Plan in compliance with the data privacy laws in the Participant’s country, either now or in the future. The Participant understands and agrees that the Participant will not be able to participate in the Plan if the Participant fails to provide any such consent or agreement requested by the Company and/or the Employer.

The Company and the Employer hereby notify the Participant of the following in relation to the Participant’s Data (as defined below) and the collection, processing and transfer in electronic or other form of such Data in relation to the grant of PRSUs and the Participant’s participation in the Plan. The collection, processing and transfer of the Participant’s Data is necessary for the legitimate purpose of the Company’s administration of the Plan and the Participant’s participation in the Plan, and the Participant’s denial and/or objection to the collection, processing and transfer of Data may affect the Participant’s participation in the Plan. As such, by participating in the Plan, the Participant acknowledges the collection, use, processing and transfer of Data and with respect to the limited transfer to the third party administrator Fidelity Stock Plan Services, LLC, consents to the transfer of Data as described herein.

The Participant understands that the Company and the Employer will hold certain personal information about the Participant to administer the Plan. This personal information may include, the Participant’s name, home address, email address and telephone number, date of birth, passport, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all RSUs, Performance RSUs or any other entitlement

10

US-DOCS ###-###-####.3

---

 

to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.

The Company and the Employer will transfer Data amongst themselves as necessary for the purpose of implementation, administration and management of the Plan, and the Company and the Employer may each further transfer Data to third parties assisting the Company or the Employer in the implementation, administration and management of the Plan. The Participant understands that Data will be transferred to Fidelity Stock Plan Services, LLC or any other broker selected by the Company, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting the Syneos Health, Inc. Human Resources Department ***@***). For any intragroup transfers of Data outside the EEA or the UK, the transfer will be under the European Commission’s model contracts for the transfer of personal data to third countries  (i.e., the standard contractual clauses) (the “Model Clauses”), or any equivalent contracts issued by the relevant competent authority of the UK (as applicable), unless the data transfer is to a country that has been determined by the European Commission or the relevant UK authorities (as applicable) to provide an adequate level of protection for individuals’ rights and freedoms for their personal data. Please contact the Syneos Health Privacy Office ( ***@***) should you wish to receive a copy of the relevant Model Clauses.  

Where provided by applicable law, the Participant may have the right to exercise certain rights with respect to their Data, which may be subject to certain limitations and exclusions. For example, these rights may include the right to know what Data is processed, access to Data, rectification of Data, erasure of Data, restriction of processing of Data (including, where applicable, the restriction on the sale of Data), and portability of Data. The Participant may also have the right to object to the processing of Data, as well as to opt-out of the Plan, in any case without cost, by contacting in writing the Syneos Health, Inc. Human Resources Department. The Participant understands, however, that the Participant's participation in the Plan may be limited and the Company and the Employer may not be able to grant the Participant PRSUs or other equity awards or administer or maintain such awards if the Participant refuses to provide Data. The Participant agrees to provide full cooperation in executing data privacy consent forms, agreements or any related documentation that the Company and/or the Employer deem necessary for the purpose of administering the Plan in compliance with the data privacy laws in the Participant’s country, either now or in the future.

11

US-DOCS ###-###-####.3

---

 

When the Company and the Employer no longer need to use Data for the purposes above or do not need to retain it for compliance with any legal or regulatory purpose, each will take reasonable steps to remove Data from their systems and/or records containing the Data and/or take steps to properly anonymize it so that the Participant can no longer be identified from it. Further information concerning the Company’s data retention practices can be found in the Company’s Records Management Policy.

Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The

12

US-DOCS ###-###-####.3

---

 

Participant is responsible for complying with any applicable restrictions and should speak with a personal legal advisor on this matter.

13

US-DOCS ###-###-####.3

---

 

14

US-DOCS ###-###-####.3

---

 

Anything in this Agreement to the contrary notwithstanding, PRSUs that are non-qualified deferred compensation subject to Section 409A of the Code and that vest as a result of the Participant’s termination of employment under Section 2(b), 2(c) or 2(e) hereof shall be settled within sixty (60) days following the Participant experiences a “separation from service,” within the meaning of Section 409A of the Code (“Separation from Service”). With respect to PRSUs that are settled as a result of the Participant’s termination of employment under Appendix C, any such PRSUs that are non-qualified deferred compensation subject to Section 409A, shall be settled within 60 days following the Separation from Service or Change in Control, provided that if the Change in Control is not a “change in control event” (within the meaning of the Treasury Regulations promulgated under Section 409A of the Code), the PRSUs shall be settled as described in Section 3(a)(i). If the Participant is a “specified employee” within the meaning of Section 409A of the Code as of the date of the Separation from Service (as determined in accordance with the methodology established by the Company as in effect on the Date of Termination), any PRSUs that are non-qualified deferred compensation that are payable upon a Separation from Service shall instead be settled on the first business day that is after the earlier of (i) the date that is six months following the date of the Participant’s Separation from Service or (ii) the date of the Participant’s death, to the extent such delayed payment is otherwise required in order to avoid a prohibited distribution under Section 409A(a)(2) of the Code, or any successor provision thereto.

15

US-DOCS ###-###-####.3

---

 

 

[Signature page follows]

 

16

US-DOCS ###-###-####.3

---

 

 

IN WITNESS WHEREOF, the Company and the Participant have executed this Global Performance Restricted Stock Unit Award Agreement and any appendices thereto as of the date first written above.

 

 

Signature Page to Performance Restricted Stock Unit Award Agreement

US-DOCS ###-###-####.3

---

 

 

APPENDIX A

PERFORMANCE GOALS FOR PRSU VESTING ELIGIBILITY

The vesting eligibility of the PRSUs granted pursuant to the attached Global Performance Restricted Stock Unit Award Agreement will be determined by the Committee in accordance with the Plan and this Appendix A.  The ROIC Performance Goal and each Adjusted EPS Performance Goal shall be referred to, collectively, as the “Performance Goals”.

ROIC Performance Goal

50% of the Target Award amount granted in Section 1 above (the “ROIC Target Award Tranche”) shall be eligible to vest based on the attainment of ROIC measured against the performance goals stated in the table below for the performance period beginning on (and including) [  ] and ending on (and including) [  ] (the “ROIC Performance Period”):

 

Adjusted EPS Performance Goals

50% of the Target Award amount granted in Section 1 above shall be eligible to vest based on the attainment of Adjusted EPS performance goals (the “Adjusted EPS PRSUs”), as set forth below.

The number of Adjusted EPS PRSUs that will be eligible for vesting in accordance with Section 2(a) of the Agreement shall be equal to the sum of A + B + C, where:

Performance Periods: With respect to the Adjusted EPS PRSUs, there will be three performance periods (each a “Adjusted EPS Performance Period”), as described in the below table, in which

Appendix A – Performance Restricted Stock Unit Award

US-DOCS ###-###-####.3

---

 

one-sixth (1/6) of the Target Award amount granted in Section 1 above (a “Adjusted EPS Target Award Tranche”) will be measured against the Performance Goals stated in the table below for such Adjusted EPS Performance Period.

 

Company Adjusted EPS: One Adjusted EPS Target Award Tranche will be eligible for vesting based upon the Company’s Adjusted EPS for each Adjusted EPS Performance Period based on the following schedules:

 

 

Appendix A – Performance Restricted Stock Unit Award

US-DOCS ###-###-####.3

---

 

 

General:

Subject to the minimum threshold requirements, linear interpolation will be used based on the level of attainment of the performance goal between vesting levels.

The Committee shall calculate and determine the level of achievement of the performance goals in its sole discretion, which shall be final and binding on all parties to the Agreement.

All amounts used to calculate and determine the level of achievement shall be in USD, with any currency conversions being determined by the Committee is its sole discretion.

Definitions:

“Adjusted EPS” means, for a given Adjusted EPS Performance Period, the Company’s Adjusted Diluted Earnings per share as reported in the applicable earnings release attached as an exhibit to the Company’s Report on Form 8-K for the applicable Adjusted EPS Performance Period.

“Performance Period” means an Adjusted EPS Performance Period or the ROIC Performance Period.

“ROIC” is defined as, with respect to the ROIC Performance Period, Non-GAAP Income from Operations calculated in a manner consistent with the calculation of Adjusted EBITDA as reported in the earnings release attached as an exhibit to the Company’s Report on Form 8-K with respect to the last fiscal year in the ROIC Performance Period, affected by the cash tax rate, divided by the end of period Invested Capital. For purposes of this paragraph, “Invested Capital” is defined as the sum of Total Debt (inclusive of finance lease obligations) as reported in the Company’s Annual Report on Form 10-K and Total Shareholders’ Equity (adjusted for cumulative Share-Based Compensation). The Committee may adjust the ROIC to account for the impact of all (i) mergers, divestitures, and/or acquisitions completed during the ROIC Performance Period, and (ii) changes in tax policy and/or legislation that occur during the ROIC Performance Period.

“Target Award Tranche” means any Adjusted EPS Target Award Tranche or the ROIC Target Award Tranche.

Appendix A – Performance Restricted Stock Unit Award

US-DOCS ###-###-####.3

---

 

 

APPENDIX B

SYNEOS HEALTH, INC.

2018 Equity Incentive Plan
Global Performance Restricted Stock Unit Award Agreement

Country-Specific Terms and Conditions

Capitalized terms used but not otherwise defined herein shall have the meaning given to such terms in the Syneos Health, Inc. 2018 Equity Incentive Plan (the “Plan”) and the Global Performance Restricted Stock Unit Award Agreement (the “Performance Restricted Stock Unit Agreement”). This Appendix constitutes part of the Performance Restricted Stock Unit Agreement.

Terms and Conditions

This Appendix B includes additional terms and conditions that govern the PRSUs granted to the Participant if the Participant resides and/or works in a country listed below. If the Participant moves to another country after receiving the grant of the PRSUs, the Company will, in its discretion, determine the extent to which the terms and conditions herein will be applicable to the Participant.

Notifications

This Appendix B also includes information regarding exchange controls and certain other issues of which the Participant should be aware with respect to the Participant’s participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of June 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Participant not rely on the information in this Appendix B as the only source of information relating to the consequences of the Participant’s participation in the Plan because the information may be out of date at the time that the PRSUs vest or the Participant sells Shares acquired under the Plan.

In addition, the information contained herein is general in nature and may not apply to the Participant’s particular situation and the Company is not in a position to assure the Participant of a particular result. Accordingly, the Participant should seek appropriate professional advice as to how the relevant laws in the Participant’s country may apply to the Participant’s situation.

Finally, if the Participant is a citizen or resident of a country other than the one in which he or she is currently residing and/or working (or if the Participant is considered as such for local law purposes), the information contained herein may not be applicable to the Participant in the same manner.

 

Appendix B – Performance Restricted Stock Unit Award

US-DOCS ###-###-####.3

---

 

 

UNITED KINGDOM

Terms and Conditions

Responsibility for Taxes. The following provisions supplement Section 3 of the Performance Restricted Stock Unit Agreement:

Without limitation to Section 3 of the Performance Restricted Stock Unit Award Agreement, the Participant agrees that the Participant is liable for all Tax-Related Items and hereby covenants to pay all such Tax-Related Items, as and when requested by the Company or the Employer or by Her Majesty’s Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority). The Participant also agrees to indemnify and keep indemnified the Company and the Employer against any Tax-Related Items that they are required to pay or withhold or have paid or will pay to HMRC (or any other tax authority or any other relevant authority) on the Participant’s behalf.

Notwithstanding the foregoing, if the Participant is a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), the immediately foregoing provision will not apply; instead, the amount of any uncollected income tax may constitute a benefit to the Participant on which additional income tax and national insurance contributions may be payable. The Participant is responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for paying the Company or the Employer (as applicable) for the value of any employee national insurance contributions due on this additional benefit.

Appendix B – Performance Restricted Stock Unit Award Agreement

US-DOCS ###-###-####.3

---

 

 

APPENDIX C

SYNEOS HEALTH, INC.

2018 Equity Incentive Plan
Global Restricted Stock Unit Award Agreement

Special Provisions for Certain Executive Officers

The provisions in this Appendix C apply only to Participants in the Syneos Health, Inc.
Executive Severance Plan (as defined below).

1. Involuntary Termination in connection with Change in Control.

This provision replaces Section 2(e) of the Performance Restricted Stock Unit Agreement:

The Converted Time-Based RSUs shall immediately vest in full in the event of (A) the Participant’s Service is terminated by the Company or a Subsidiary for any reason other than Cause, or (B) the Participant resigns for Good Reason, in each case, at the time of, or during the period commencing on the date three (3) months prior to a Change in Control and ending twenty-four (24) months following such Change in Control (either of such events of termination within such period, a “CIC Termination”).

 

Appendix C – Performance Restricted Stock Unit Award Agreement

US-DOCS ###-###-####.3

---

 

 

APPENDIX D

RESTRICTIVE COVENANTS AGREEMENT

The Participant acknowledges and agrees that in light of the Participant’s access to Confidential Information and Participant’s position of trust and confidence with the Company or its Subsidiaries, Participant shall be subject to the restrictive covenants set forth herein. The Participant knows that the promises in this Restrictive Covenants Agreement (“RCA”) are an important way for the Company and its Subsidiaries to protect their proprietary interests and understands that the terms of this RCA are affected by the location in which the Participant is employed, as stated in Attachment A and Attachment B to this RCA. As a condition of the grant of the PRSUs, the Participant agrees as follows:

1.Definitions. Capitalized terms not otherwise defined in this RCA shall have the same meanings as set forth in the Syneos Health, Inc. 2018 Equity Incentive Plan, and the Global Performance Restricted Stock Unit Award Agreement (including the Appendix B and any other appendix attached thereto). The following terms shall have the following meanings for the purposes of this RCA:

(a)“Termination Date” means the last day of the Participant’s employment by the Company or any of its Subsidiaries.

(b)“Non-Solicit Restricted Period” means the period commencing on the Termination Date and ending twelve (12) months after the Termination Date.

(c)“Non-Compete Restricted Period” means the period commencing on the Termination Date and ending twelve (12) months after the Termination Date.

(d)“Company Customer” means a person or entity for whom the Company or any of its Subsidiaries was providing services either at the time of, or at any time within the twelve (12) months preceding the Termination Date, and for whom the Participant had direct contact with and/or carried out or oversaw a material business responsibility during said twelve (12) month period or about whom the Participant had exposure to or received Confidential Information as a result of the Participant’s employment with the Company or any of its Subsidiaries.

(e)“Prospective Customer” means a person or entity (i) that the Participant contacted for the purpose of soliciting business on behalf of the Company or any of its Subsidiaries during the twelve (12) months preceding the Termination Date; or (ii) to which the Company or any of its Subsidiaries had submitted a bid or proposal for services during the twelve (12) months preceding the Termination Date, and in which bid or proposal the Participant was involved in any material respect.

(f)“Company Person” means any person who is an employee of or consultant to the Company or any of its Subsidiaries as of the Termination Date.

(g)“Company Business” means (i) developing, marketing, selling and/or providing services to pharmaceutical, biotechnology, life sciences, medical device and medical diagnostic

D-1

US-DOCS ###-###-####.3

---

 

companies regarding: (A) the commercialization of pharmaceuticals, biologics, medical devices or diagnostic products, including, but not limited to, outsourced sales and related operations, marketing, naming/branding, advertising, public relations, medical communications and medication adherence services for the Company’s clients, (B) the provision of clinical trials and related support services including, but not limited to, bioanalysis, biostatistics, data management, feasibility studies, global safety and pharmacovigilance, laboratory operations, medical writing, project management, protocol and case report form design, quality assurance, regulatory affairs and consulting, medical oversight, risk management, site and patient recruitment, site management, strategic planning, study monitoring and late stage services for the Company’s clients, (C) the staffing of clinical trial and/or clinical research and development personnel for the Company’s clients, and (D) the provision of consulting services including, but not limited to, brand management, business development, clinical development, commercial strategy and organizational design, product launch planning, medical affairs, pricing and market access and risk evaluation and mitigation strategy for the Company’s clients; and (ii) any other business that the Company and its Subsidiaries engage in, or that the Company and its Subsidiaries have developed definitive plans to engage in, as of the Termination Date.

(h)“Restricted Area” means the following geographical areas: (i) any city, metropolitan area, county (or similar political subdivision in foreign countries) in which the Participant personally provided material services on behalf of the Company during the twelve (12) months prior to the Termination Date; (ii) within a 60-mile radius of the location(s) where the Participant had an office during the twelve (12) months prior to the Termination Date; (iii) within a 60 mile radius of Raleigh, North Carolina; and (iv) any city, metropolitan area, county (or similar political subdivision in foreign countries) in which the Company or any of its Subsidiaries is located or does or did business, during the twelve (12) months prior to the Termination Date.

(i)“Confidential Information” means without limitation, any confidential or proprietary information or materials of the Company or its Subsidiaries, whether of a technical, business, or other nature, including information and materials which relate to operations, processes, products, promotional material, developments, patent applications, formulas, sponsor or client lists, manufacturing processes, trade secrets, basic scientific data, data systems, employment policies, formulation information, budgets, bids, proposals, study protocols, coding devices, and any other confidential data or proprietary information in connection with the Company, its Subsidiaries or their business affairs, including but not limited to any information relating to the operation of the Company’s and/or its Subsidiaries’ business which the Company or its Subsidiaries may from time to time designate as confidential or proprietary or that Participant reasonably knows should be, or has been, treated by the Company and/or its Subsidiaries as confidential or proprietary. Confidential Information encompasses all formats in which information is preserved, whether electronic, print or in any other form, including all originals, copies, notes or other reproductions or replicas thereof. Any trade secrets of the Company or its Subsidiaries will be entitled to all of the protections and benefits under any applicable trade secrets law, whether statutory or common law, including but not limited to the Delaware Uniform Trade Secrets Act, Del. Code Ann. tit. 6, §§ 2001–2009, the North Carolina Trade Secrets Protection Act, N.C. Gen. Stat. §§ 66-152 et seq., the Massachusetts Uniform Trade Secrets Act, M.G.L. ch. 93, §§ 42 to 42G, and the California Uniform Trade Secrets Act, Cal. Civ. Code §§ 3426 et seq. If any information that the Company deems to be a trade secret is found by a court of competent

D-2

US-DOCS ###-###-####.3

---

 

jurisdiction not to be a trade secret, such information will, nevertheless, be considered Confidential Information for purposes of this RCA.

Notwithstanding the foregoing, the term “Confidential Information” shall not include information which (i) is already known to the Participant prior to its disclosure to the Participant by the Company; (ii) is or becomes generally available to the public through no wrongful act of any person; (iii) is at the time of disclosure part of the public knowledge or literature through no wrongful action by the Participant; or (iv) is received by the Participant from a third party without restriction and without any wrongful conduct on the part of such third party relating to such disclosure. The Participant acknowledges and agrees that the Confidential Information he/she obtains or becomes aware of as a result of his/her employment with the Company or any of its Subsidiaries 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 Participant is required to protect and not disclose such information.

(j)“Subsidiary” or “Subsidiaries” means any corporation, partnership, limited liability company, joint venture, association, public or private limited company or other business entity at least 50% of the outstanding voting stock or voting interests of which is at the time owned or controlled, directly or indirectly, by the Company.

2.Non-Solicitation of Customers and Employees. The Participant agrees that during the Participant’s employment with the Company or any of its Subsidiaries and during the Non-Solicit Restricted Period, the Participant will not, on the Participant’s own behalf, nor as an officer, director, stockholder, partner, associate, employee, owner, executive, consultant or otherwise on behalf of any person, firm, partnership, corporation, or other entity:

(a)solicit, induce, influence or attempt to solicit, induce or influence any Company Customer to (i) cease doing business in whole or in part with the Company and/or its Subsidiaries, or to otherwise limit or reduce its business with the Company and/or its Subsidiaries, (ii) purchase or accept products or services competitive with those offered by the Company and/or its Subsidiaries from any person or entity (other than the Company and/or its Subsidiaries), or (iii) do business with any other person or business that is Competitive with the Company;

(b)solicit, induce, influence or attempt to solicit, induce or influence any Prospective Customer to (i) cease doing business in whole or in part with the Company and/or its Subsidiaries, or to otherwise limit or reduce its business with the Company and/or its Subsidiaries, (ii) purchase or accept products or services competitive with those offered by the Company and/or its Subsidiaries from any person or entity (other than the Company and/or its Subsidiaries), or (iii) do business with any other person or business that is Competitive with the Company;

(c)provide or sell any products or services competitive with those offered by the Company and/or its Subsidiaries to any Company Customer;

(d)provide or sell any products or services competitive with those offered by the Company and/or its Subsidiaries to any Prospective Customer;

(e)interfere with, disrupt or attempt to interfere with or disrupt the relationship, contractual or otherwise, that the Company and/or its Subsidiaries have with any sponsor, supplier,

D-3

US-DOCS ###-###-####.3

---

 

vendor, distributor, lessor, lessee, licensor or business partner that transacts business with the Company and/or its Subsidiaries;

(f)solicit, induce, encourage, entice or attempt to solicit, induce, encourage or entice any Company Person to terminate or alter his or her employment or engagement with the Company or any of its Subsidiaries; or

(g)employ or hire as an officer, director, employee, agent, consultant or independent contractor any Company Person.

3.Non-Competition.

(a)The Participant agrees that, during the Participant’s employment with the Company or any of its Subsidiaries, and during the Non-Compete Restricted Period, the Participant will not, within the Restricted Area, for the Participant’s own behalf or for any other person or entity, own, manage, operate or participate in the ownership, management, operation or control of, or be employed by or provide services to, any person, business or entity which competes with the Company Business if Participant would:

(i)have responsibilities or perform services that are entirely or substantially similar to the responsibilities or services that the Participant had or provided at the time of, or at any time within the twelve (12) months preceding the Termination Date;

(ii)be involved in creating, developing, modifying, accessing, utilizing or relying upon confidential information that is similar or relevant to that Confidential Information to which Participant created, developed, modified, accessed, utilized or relied upon during the Participant’s employment with the Company or any of its Subsidiaries; or

(iii)use, disclose, or engage in activity in which the Participant would be reasonably expected to use or disclose any Confidential Information.

(b)Notwithstanding the foregoing, the Participant’s ownership, directly or indirectly, of not more than one percent (1%) of the issued and outstanding stock of a corporation the shares of which are regularly traded on a national securities exchange or in the over-the-counter market shall not violate this Section.

4.Business Opportunities. The Participant, while he or she is employed by the Company and its Subsidiaries, agrees to offer or otherwise make known or available to the Company or any Subsidiary, as directed by the Company and without additional compensation or consideration, any business prospects, contracts or other business opportunities that he or she may discover, find, develop or otherwise have available to him or her in any field in which the Company or any of its Subsidiaries is engaged, and further agrees that any such prospects, contracts or other business opportunities shall be the property of the Company.

5.Confidentiality.

(a)The Participant acknowledges that during his or her employment with the Company, he or she has and will necessarily become informed of, and have access to, the

D-4

US-DOCS ###-###-####.3

---

 

Confidential Information of the Company, and that the Confidential Information, even though it may be contributed, developed or acquired in whole or in part by the Participant is the Company’s exclusive property to be held by the Participant in trust and solely for the Company’s benefit. Accordingly, except as required by law, the Participant shall not, at any time, either during or subsequent to his or her employment, as applicable, use, reveal, report, publish, copy, transcribe, transfer or otherwise disclose to any person, corporation or other entity, any of the Confidential Information without the prior written consent of the Company, except to responsible officers and employees of the Company and its Subsidiaries and other responsible persons who are in a contractual or fiduciary relationship with the Company or one of its Subsidiaries and except for information that legally and legitimately is or becomes of general public knowledge from authorized sources other than the Participant.

(b)This RCA shall not prevent Participant from (i) reporting, without prior approval from the Company, possible violations of federal securities laws or regulations to any governmental agency or entity, including but not limited to, the Department of Justice, the Securities and Exchange Commission, the Congress, and any Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation; (ii) filing a charge of discrimination with the Equal Employment Opportunity Commission; (iii) cooperating with the Equal Employment Opportunity Commission in an investigation of alleged discrimination; (iv) revealing evidence of criminal wrongdoing to law enforcement; (v) testifying in any cause of action when required to do so by law, or (vi) divulging Confidential Information pursuant to an order of court or agency of competent jurisdiction. However, with respect to (v) and (vi) only, Participant must promptly inform the Company of any such situations and shall take such reasonable steps to prevent disclosure of the Company’s Confidential Information until the Company has been informed of such requested disclosure and the Company has had an opportunity to respond to the court or agency.

Further, 18 U.S.C. § 1833(b) states: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, the parties to this RCA have the right to disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The parties also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this RCA is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C.§ 1833(b).

6.Prior Restrictive Covenants. The restrictive covenants contained in this RCA are in addition to, and not in lieu of, any other restrictive covenants between the Participant and the Company or any of its Subsidiaries. For the avoidance of doubt, any and all of the Participant’s restrictive covenants agreed to prior to entering into this RCA (“Prior Restrictive Covenants”) will survive and supersede the restrictive covenants set forth in this RCA to the extent that any Prior Restrictive Covenant is for a longer period of time or is more restrictive in scope or location than

D-5

US-DOCS ###-###-####.3

---

 

the restrictive covenants set forth in this RCA. A breach of any such Prior Restrictive Covenant will also constitute a breach of this RCA.

7.Injunctive Relief and Tolling. Participant acknowledges and agrees that if Participant breaches any of the provisions of Sections 2 through 6 hereof, it will cause irreparable damage to the Company and/or its Subsidiaries for which monetary damages alone will not constitute an adequate remedy. In the event of such breach or threatened breach, the Company shall be entitled as a matter of right (without being required to prove damages or furnish any bond or other security) to obtain a restraining order or an injunction to preserve or restore the status quo, and will additionally be entitled to an award of attorneys’ fees incurred in connection with securing any relief hereunder. Such right to equitable or extraordinary relief shall not be exclusive but shall be in addition to all other rights and remedies to which the Company may be entitled at law or in equity, including, without limitation, the right to recover monetary damages for the breach by Participant of any of the provisions of this RCA. Further, Participant understands that if Participant breaches any of the provisions in Sections 2 through 6 of this RCA, the applicable restricted period will be extended for a period of time equal to the period of time Participant spent in breach of this RCA. If the Company is required to seek injunctive relief from such breach, then the applicable restricted period shall be extended for a period of time equal to the pendency of such proceedings, including all appeals.

8.Termination. Participant may terminate the employment relationship for any reason at any time upon giving the Company thirty (30) days prior written notice, as applicable law permits. In the case of a termination by the Company other than a termination for Cause (as defined in the Plan), the Company will provide thirty (30) days prior written notice of termination, as applicable law permits. In each case, the Company may, in its discretion, relieve the Participant of some or all of his/her duties during all or a part of such notice period. Subject to the forgoing notice obligation, the Participant’s employment with the Company shall remain at will, as applicable law permits.

9.Return of Company Property. By no later than the Termination Date, the Participant shall promptly deliver to the Company all property and possessions of the Company and its Subsidiaries, including all drawings, manuals, letters, notes, notebooks, reports, copies, deliverables containing Confidential Information and all other materials relating to the Company and any of its Subsidiaries’ business that are in the Participant’s possession or control.

10.Governing Law, Forum. This RCA and all disputes, claims or controversies arising out of or related to this RCA, shall be governed by the laws of the country in which Participant is employed without regard for reference to any choice or conflict of law principles of any jurisdiction, and the parties agree that any action or proceeding with respect to this RCA or the Participant’s employment with the Company shall be brought exclusively in the courts in the country in which the Participant is employed.

11.Amendment, Modification or Waiver. This RCA may not be changed orally, and no provision of this RCA may be amended or modified unless such amendment or modification is in writing, signed by the Participant 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

D-6

US-DOCS ###-###-####.3

---

 

waiver by the Company must be in writing and signed by a duly authorized officer of the Company to be effective.

12.Severability. In case any one or more of the provisions contained in this RCA 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 RCA, but this RCA shall be construed as if such invalid, illegal, or other unenforceable provision had never been contained herein. If, moreover, any one or more of the provisions contained in this RCA 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.

13.Miscellaneous.

(a)The Participant’s and the Company’s obligations hereunder shall continue in full force and effect in the event that the Participant’s job title, responsibilities, work location or other conditions of his/her employment with the Company change subsequent to the execution of the RCA, without the need to execute a new RCA.

(b)Participant agrees to provide a copy of Sections 1 through 6 of this RCA to any subsequent employers or prospective employers during the applicable period of restriction (including but not limited to the Non-Solicit Restricted Period and the Non-Compete Restricted Period). The Participant specifically authorizes the Company to notify any subsequent employers or prospective employers of the Participant of the restrictions on the Participant contained in this RCA and of any concerns the Company may have about actual or possible conduct by the Participant that may be in breach of this RCA. The Participant agrees to promptly notify the Company of any offers to perform services, any engagements to provide services, and/or actual work of any kind, whether as an individual, proprietor, partner, stockholder, officer, employee, director, consultant, joint venturer, investor, lender, or in any other capacity whatsoever during the period of his/her employment by the Company or any of its Subsidiaries and during the Non-Solicit Restricted Period and the Non-Compete Restricted Period. Such notice must be provided prior to the commencement of any such services or work.

(c)The rights and remedies of the parties under this RCA are cumulative (not alternative) and in addition to all other rights and remedies available to such parties at law, in equity, by contract or otherwise.

(d)The obligations in this RCA shall survive Participant’s termination of employment with the Company or a Subsidiary and the assignment of this RCA by the Company to any successor in interest or other assignee.

 

[remainder of page intentionally blank]

 

D-7

US-DOCS ###-###-####.3