Exhibit
10.1


 


EXECUTIVE RETIREMENT AGREEMENT


 


This Executive Retirement
Agreement (the “Agreement”) is entered into as of December 27, 2007 (the “Effective
Date”), by and between Sepracor Inc. (“Sepracor” or the “Company”) and Timothy
J. Barberich (“Mr. Barberich,” and individually, a “Party,” and
collectively, the “Parties”).


 


WHEREAS, the Company wishes to
retain the services of Mr. Barberich for at least two years and to
compensate him for his willingness to continue to provide such services to the
Company; and


 


WHEREAS, the Company wishes to
provide retirement benefits to Mr. Barberich who has served as the Company’s
chief executive for over 20 years.


 


NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:


 


1.             Term of Service.  The
term of this Agreement shall extend from the Effective Dater through December 31,
2009 (the “Term”).  Sepracor and Mr. Barberich
agree that for the period from the Effective Date through a date no later than May 13,
2008, Mr. Barberich will serve as Executive Chairman of the Company, or in
such other executive position at Sepracor as is agreed to by Sepracor and Mr. Barberich
(each such position being referred to as an “Executive”), subject to the next
paragraph of this Agreement.  In his
capacity as an Executive, Mr. Barberich shall perform such duties
consistent with his position as an Executive as are reasonably assigned to him
by the Board of Directors of the Company or Sepracor’s Chief Executive Officer.


 


At such time on or prior to May 13,
2008 that Mr. Barberich ceases to be an Executive either because he elects
to retire from the Company or because Sepracor elects to terminate his
employment other than for “Cause” (as defined in Section 5(b) below),
Mr. Barberich agrees to serve in a consulting – independent contractor
capacity as an advisor (an “Advisor”) to the Company for the remainder of the
Term.  In his capacity as Advisor, Mr. Barberich
shall provide such advice and perform such projects as are reasonably requested
of him by the Board of Directors of the Company or Sepracor’s Chief Executive
Officer.


 


The right to receive the
compensation set forth in Section 2 below for such portion of the Term
that Mr. Barberich serves as an Advisor is subject to his execution of a
release, substantially in the form of Exhibit A hereto, which shall
include but not be limited to, provisions involving a general release of all
claims, confidentiality, non-competition (in a business capacity), non-disparagement
and return of Company property.


 


2.             Compensation and Benefits. 
During the Term, the Company shall pay Mr. Barberich at the rate of
$1,650,000 per year, except as set forth in Section 7 below. For so long
as he serves as an Executive of the Company, such amount shall be paid, less
applicable taxes and withholdings, in accordance with the Company’s regular
payroll practices.  While Mr. Barberich
is serving as an Advisor to the Company, such amount shall be paid in regular
monthly installments at the annualized rate of $1,650,000 and Mr. Barberich
shall be solely responsible for all state and federal income taxes,
unemployment insurance and social security 


 

















 


taxes and for maintaining
adequate workers’ compensation insurance for himself, consistent with his
independent contractor status.


 


During the Term, in addition to
the amounts payable under the first paragraph of this Section 2, Mr. Barberich
shall continue (a) to receive a salary and continue to be eligible for
bonus and equity compensation for so long as he serves as an Executive (in such
amounts as are determined by the Compensation Committee of the Board of
Directors), and (b)  to be eligible to receive the health and dental
benefits which he currently enjoys under the Company’s plans and policies under
the same terms that applied to him immediately prior to the Effective Date,
subject to the terms of those plans and policies.


 


The Company shall reimburse Mr. Barberich
for all reasonable travel, entertainment and other expenses incurred or paid by
Mr. Barberich during the Term in connection with, or related to, the
performance of his duties, responsibilities or services under this Agreement,
upon presentation by Mr. Barberich of documentation, expense statements,
vouchers and/or such other supporting information as the Company may request.


 


3.             Restricted Stock.  The
Company agrees to grant to Mr. Barberich under the Company’s 2000 Stock
Incentive Plan (the “Stock Plan”) 47,500 restricted shares of common stock (the
“Restricted Stock”).  The Restricted
Stock shall vest in two equal annual installments on each of the first two
anniversaries of the grant date, and shall be contingent upon continued service
as an Executive of, or Advisor to, the Company, and shall contain such other
terms are as set forth in the award agreement attached hereto as Exhibit B.


 


4.             Service as Member of Board of Directors.  Mr. Barberich serves as member of the
Board of Directors of Sepracor.  This
Agreement is not intended to address or interfere with Mr. Barberich’s position
as a director.


 


5.             Employment Termination. 
The employment of Mr. Barberich shall terminate no later than May 13,
2008 and this Agreement shall terminate no later than the expiration date of
the Term. In addition, prior to May 13, 2008, the employment of Mr. Barberich
by the Company shall terminate upon the occurrence of any of the following:


 


a.             At
the election of the Company, for “Cause” (as defined below) immediately upon
written notice by the Company to Mr. Barberich, which notice shall identify
the Cause upon which termination is based.


 


For purposes
of this Section 5(a), Cause shall mean:


 


(i)            Mr. Barberich’s
willful and continued failure to substantially perform his reasonably assigned
duties (other than any such failure resulting from incapacity due to physical
or mental illness) which failure continues, in the reasonable judgment of the
Board of Directors of the Company, after written notice to Mr. Barberich
by the Board; or


 


(ii)           Mr. Barberich’s
willful engagement in illegal conduct or gross misconduct which is materially
and demonstrably injurious to the Company.


 


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For purposes
of this Section 5(a), no act or failure to act by Mr. Barberich shall
be considered “willful” unless it is done, or omitted to be done, in bad faith
and without reasonable belief that Mr. Barberich’s action or omission was
in the best interests of the Company.


 


b.             Upon
the death or disability of Mr. Barberich. 
As used in this Agreement, the term “disability” shall mean Mr. Barberich’s
absence from the full-time performance of his duties with the Company for one
hundred eighty (180) consecutive calendar days as a result of incapacity due to
mental or physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers.


 


c.             At
the election of Mr. Barberich upon not less than sixty (60) days’ written
notice to the Company.


 


d.             At
the election of the Company, without Cause, upon not less than sixty (60) days’
written notice to Mr. Barberich.


 


6.             Termination of Advisor Engagement. 
The engagement of Mr. Barberich as an Advisor by the
Company under this Agreement shall terminate upon the occurrence of any of the
following:


 


a.             On
the expiration date of the Term.


 


b.             A
breach by Mr. Barberich of his Advisor obligations.


 


c.             At
the election of Mr. Barberich upon not less than sixty (60) days’ written
notice to the Company.


 


d.             At
the election of the Company upon not less than sixty (60) days’ written notice
to Mr. Barberich.


 


7.                                      Effect of Termination of Employment or Termination of Advisor
Engagement.


 


a.             In
the event Mr. Barberich’s employment is terminated for Cause by the
Company pursuant to Section 5(a) or his Advisor engagement is
terminated by the Company pursuant to Section 6(b) or at the election
of Mr. Barberich pursuant to Section 6(c), the Company shall pay to Mr. Barberich
a pro-rated portion of his compensation and benefits otherwise payable to him
under Section 2 through the last calendar day of his actual employment by
the Company or services as an Advisor.


 


b.             In
the event Mr. Barberich’s employment is terminated because of his death
pursuant to Section 5(b), the Company shall pay to the estate of Mr. Barberich
a pro-rated portion of the compensation which would otherwise be payable to Mr. Barberich
up to the end of the month in which his death occurs.  In the event Mr. Barberich’s employment
is terminated because of disability pursuant to Section 5(b), the Company
shall pay to Mr. Barberich a pro-rated portion of the compensation which
would otherwise be payable to Mr. Barberich under Section 2 up
through the last calendar day of his actual employment by the Company.


 


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c.             In
the event Mr. Barberich’s employment is terminated by Mr. Barberich
pursuant to Section 5(c) or by the Company pursuant to Section 5(d),
and Mr. Barberich agrees to serve as an Advisor to the Company following
such termination, this Agreement shall remain in effect and Section 2
shall apply for the remainder of the Term, unless and until Mr. Barberich’s
service as an Advisor is earlier terminated, at which point Section 7(a) or
Section 7(d) shall apply, as applicable.


 


d.             In
the event the Company terminates Mr. Barberich’s service as an Advisor
pursuant to Section 6(d) or Mr. Barberich’s employment is
terminated by the Company pursuant to Section 5(d) and does not
engage Mr. Barberich as Advisor, the Company shall pay to Mr. Barberich
the compensation and benefits otherwise payable to him under Section 2 in
accordance with the provisions of Section 2 through the end of the Term
and all unvested shares of Restricted Stock shall immediately vest.


 


e.             Notwithstanding
anything to the contrary contained herein, in the event Mr. Barberich
receives compensation and/or benefits in connection with a Change in Control
under the terms of the Executive Retention Agreement between Mr. Barberich
and the Company, dated February 1, 2002 (the “ERA”), his right to
compensation and benefits under this Agreement shall cease immediately upon
such Change in Control.  For purposes of
this Agreement, Change in Control shall have the meaning set forth in the ERA.


 


8.             Section 409A.


 


a.             Distributions.  The following rules shall apply with
respect to distribution of the payments and benefits, if any, to be provided to
Mr. Barberich under Section 2:


 


(i)            It
is intended that each installment of the payments and benefits provided under Section 2
shall be treated as a separate “payment” for purposes of Section 409A of
the U.S. Internal Revenue Code of 1986, as amended, and the guidance issued
thereunder (“Section 409A”). 
Neither the Company nor Mr. Barberich shall have the right to
accelerate or defer the delivery of any such payments or benefits except to the
extent specifically permitted or required by Section 409A;


 


(ii)           If,
as of the date of the “separation from service” of Mr. Barberich from the
Company (as defined below), Mr. Barberich is not a “specified employee”
(within the meaning of Section 409A), then each installment of the
payments and benefits shall be made on the dates and terms set forth in Section 2;
and


 


(iii)          If,
as of the date of the “separation from service” of Mr. Barberich from the
Company, Mr. Barberich is a “specified employee” (within the meaning of Section 409A),
then:


 


(A)          Each
installment of the payments and benefits due under Section 2 that, in
accordance with the dates and terms set forth herein, will in all
circumstances, regardless of when the separation from service occurs, be paid
within the Short-Term Deferral Period (as hereinafter defined) shall be treated
as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to
the maximum extent permissible under Section 409A.  For purposes of this Agreement, the “Short-Term
Deferral Period” means the period 


 


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ending on the later of the 15th
day of the third month following the end of Mr. Barberich’s tax year in
which the separation from service occurs and the 15th day of the
third month following the end of the Company’s tax year in which Mr. Barberich’s
separation from service occurs; and


 


(B)           Each
installment of the payments and benefits due under Section 2 that is not
paid within the Short-Term Deferral Period and that would, absent this
subsection, be paid within the six-month period following the “separation from
service” of Mr. Barberich from the Company shall not be paid until the
date that is six months and one day after such separation from service (or, if
earlier, Mr. Barberich’s death), with any such installments that are
required to be delayed being accumulated during the six-month period and paid
in a lump sum on the date that is six months and one day following Mr. Barberich’s
separation from service and any subsequent installments, if any, being paid in
accordance with the dates and terms set forth herein.


 


b.             The
determination of whether and when a separation from service has occurred shall
be made and in a manner consistent with, and based on the presumptions set forth
in, Treasury Regulation Section 1.409A-1(h).


 


c.             All
reimbursements and in-kind benefits provided under the Agreement shall be made
or provided in accordance with the requirements of Section 409A to the
extent that such reimbursements or in-kind benefits are subject to Section 409A.


 


d.             The
Company makes no representation or warranty and shall have no liability to Mr. Barberich
or any other person if any provisions of this Agreement are determined to
constitute deferred compensation subject to Section 409A but do not
satisfy an exemption from, or the conditions of, such section.


 


9.             Health Benefits. 
Following the Term, Mr. Barberich will be eligible to participate
in the executive retiree health benefit program adopted by the Board of
Directors of Sepracor on February 27, 2007, and as further described on Exhibit C.  For such time that Mr. Barberich elects
to participate in any such program, Mr. Barberich will reimburse Sepracor
at the lesser of (a) the actual cost to Sepracor for his participation and
(b) the rate applicable to former Sepracor employees who elect COBRA
health coverage.


 


10.          Cooperation.  During
and after the Term, Mr. Barberich agrees reasonably to cooperate with the
Company in the defense or prosecution of any threatened or actual claims or
actions which may be brought by, against or on behalf of the Company, its
predecessors or any of its current or former partners, agents, employees,
directors or affiliates and which relate to events or occurrences that
transpired or are alleged to have transpired during his employment with the
Company or service as an Advisor.  Such
cooperation shall include, without implication of limitation, being available
to meet with the Company’s counsel to prepare for discovery or trial or an
administrative hearing or government investigation or alternative dispute
resolution procedure and to testify truthfully as a witness when reasonably
requested by the Company at reasonable times and for reasonable time
periods.  In the event any such
cooperation is required following the expiration of the Term and requires more
than de minimis time or effort, the Company
agrees to reimburse Mr. Barberich for reasonable travel, food and lodging
expenses for any cooperation provided after the Term under this Section 10.


 


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11.          Indemnification. 
Nothing contained in this Agreement shall constitute a relinquishment or
waiver by Mr. Barberich of his right to be indemnified by the Company
pursuant to the terms of the Company’s Restated Certificate of Incorporation,
as amended (the “Indemnification Provisions”), with respect to conduct or
events occurring during, or relating to, his employment by, or while serving as
a director of, Sepracor, or of any right that he may have under, or with
respect to, the Company’s Directors and Officers liability insurance policies.


 


12.          Binding Nature of Agreement. 
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective heirs, administrators, representatives, executors,
successors and assigns.


 


13.          Use of the Agreement as Evidence.  This Agreement may not be used as evidence in
any subsequent proceeding of any kind, except one in which either Party alleges
a breach of the terms of this Agreement or elects to use this Agreement as a
defense to any claim.


 


14.          Entire Agreement; Modifications.  With the exception of the stock option and
restricted stock agreements between the Company and Mr. Barberich, the
Company’s stock option and incentive stock plan under which such equity
incentives were granted, the Employee, Non-Disclosure Agreement executed by Mr. Barberich,
dated June 27, 1985, and the ERA, which will survive and remain in full
force and effect, this Agreement contains the entire agreement among the
Parties hereto with respect to the matters covered hereby, and supersedes all
prior and contemporaneous communications, e-mails, agreements, representations,
understandings or negotiations between Mr. Barberich, the Company and/or
their agents and attorneys.  This Agreement
may be modified only by a written agreement signed by an authorized
representative of each of the Parties hereto. 
No waiver of this Agreement or any provision hereof shall be binding
upon the Party against whom enforcement of such waiver is sought unless it is
made in writing and signed by or on behalf of such Party.


 


15.          Further Assurances. 
The Parties agree to execute, acknowledge (if reasonably requested), and
deliver such documents, certificates or other instruments and take such other
actions as may be reasonably required from time to time to carry out the
intents and purposes of this Agreement, provided they do not impose any
material additional obligations upon either Party.


 


16.          Acknowledgments and Other Terms.  Mr. Barberich agrees that he has
carefully read and understands all of the provisions of this Agreement, that he
has been advised to consult with and has consulted with an attorney, and that
he is voluntarily entering this Agreement. 
Mr. Barberich further represents and acknowledges that in executing
this Agreement, he is not relying and has not relied upon any representation or
statement made by the Company with regard to the subject matter, basis or
effect of this Agreement.


 


17.          Interpretation.  The
language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of
the Parties.  This Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision hereof shall be prohibited or invalid under any such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating or nullifying the remainder of such provision
or any other provisions of this 


 


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Agreement.  The captions of the sections of this
Agreement are for convenience of reference only, and in no way define, limit or
affect the scope or substance of any section of this Agreement.


 


18.          Counterparts.  This
Agreement may be executed in any number of counterparts and may be delivered by
facsimile, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.


 


19.          Governing Law; Prevailing Party.  This Agreement shall take effect as an
instrument under seal and shall be governed and construed in accordance with
the laws of Massachusetts, without regard to its conflicts of laws principles.  In the event either Party retains legal
counsel in connection with the enforcement of its rights under this Agreement
and the other Party is found by a court having competent jurisdiction to have
breached its obligations hereunder, the prevailing Party shall be entitled to
recover all reasonable legal fees and related reasonable charges and
disbursements incurred by it in connection with such enforcement action and any
negotiations leading up to it.


 


IN WITNESS
WHEREOF, the Parties hereto have executed this Agreement as an instrument under
seal as of the Effective Date.


 


 


	
   

  	
  SEPRACOR
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adrian Adams

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Adrian Adams

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Timothy
  J. Barberich

  	
   

  	
   

  
	
  TIMOTHY
  J. BARBERICH

  	
   

  
								



 


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EXHIBIT
A


 


FORM OF
SEPARATION AGREEMENT AND RELEASE OF CLAIMS


 


In connection with your employment separation
from Sepracor Inc. (the “Company”)
on [INSERT TERMINATION DATE], and in order
to receive the benefits as set forth in Section 2 of the Executive
Retirement Agreement dated December 27, 2007 by and between you and the
Company (the “Executive Retirement Agreement”),  this agreement must become binding between you and the
Company.  By signing and returning this
agreement, you will be entering into a binding agreement with the Company and
will be agreeing to the terms and conditions set forth in the numbered
paragraphs below, including the release of claims set forth in paragraph
1.  Therefore, you are advised to consult
with an attorney before signing this agreement and you have been given more
than twenty-one (21) days to do so.  If
you sign this agreement, you may change your mind and revoke your agreement
during the seven (7) day period after you have signed it.  If you do not so revoke, this agreement will
become a binding agreement between you and the Company upon the expiration of
the seven (7) day revocation period.


 


The following numbered paragraphs set forth
the terms and conditions which will apply if you timely sign and return this
agreement and do not revoke it within the seven (7) day revocation period:


 


1.                                      Mutual Releases - In consideration
of the payments set forth in Section 2 of the Executive Retirement
Agreement, which you acknowledge you would not otherwise be entitled to
receive, you hereby fully, forever, irrevocably and unconditionally release,
remise and discharge the Company, its officers, directors, stockholders,
corporate affiliates, subsidiaries, parent companies, successors and assigns,
agents and employees (each in their individual and corporate capacities)
(hereinafter, the “Released Parties”) from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights, debts, sums of
money, costs, accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys’ fees and costs), of every kind and nature which you ever
had or now have against the Released Parties, including, but not limited to,
those claims arising out of your employment with and/or separation from the
Company, including, but not limited to, all claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
the Age Discrimination in Employment Act, 29 U.S.C. § 621 et  seq.,
the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et  seq.,
the Family and Medical Leave Act, 29 U.S.C. § 2601 et  seq., the
Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. § 2101 et
seq., Section 806 of the Corporate and Criminal Fraud Accountability
Act of 2002, 18 U.S.C. § 1514(A), the Rehabilitation Act of 1973, 29 U.S.C. §
701 et  seq., Executive Order 11246, Executive Order 11141, the
Fair Credit Reporting Act, 15 U.S.C. § 1681 et
seq., the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et
seq., the Massachusetts Fair Employment
Practices Act., M.G.L. c. 151B, § 1 et seq.,
the Massachusetts Civil Rights Act, M.G.L. c. 12, §§ 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c. 93, § 102 and M.G.L. c. 214, § 1C,
the Massachusetts Labor and Industries Act, M.G.L. c. 149, § 1 et  seq.,
the Massachusetts Privacy Act, M.G.L. c. 214, § 1B, and the Massachusetts
Maternity Leave Act, M.G.L. c. 149, § 105D, all as 


 

















 


amended; all
common law claims including, but not limited to, actions in tort, defamation
and breach of contract; all claims to
any non-vested ownership interest in the Company, contractual or otherwise,
including, but not limited to, claims to stock or stock options; and any
claim or damage arising out of your employment with or separation from the
Company (including a claim for retaliation) under any common law theory or any
federal, state or local statute or ordinance not expressly referenced above;
provided, however, that nothing in this Agreement prevents you from filing,
cooperating with, or participating in any proceeding before the EEOC or a state
Fair Employment Practices Agency (except that you acknowledge that you may not
be able to recover any monetary benefits in connection with any such claim,
charge or proceeding).  Notwithstanding
the foregoing, the release set forth in this Section 1 shall not apply to (a) any
claim to payments under the Executive Retirement Agreement or your rights under
this agreement, (b) any vested equity interest in the Company, including
vested stock options or (c) any rights you have to be indemnified by the
Company pursuant to the terms of the Company’s Restated Certificate of
Incorporation, as amended with respect to conduct or events occurring during,
or relating to, your employment by, or while serving as a director of, the
Company, or of any rights that you may have under, or with respect to, the
Company’s Directors and Officers liability insurance policies.


 


The Company hereby fully,
forever, irrevocably and unconditionally releases, remises and discharges you
from any and all claims, charges, complaints, demands, actions, causes of
action, suits, rights, debts, sums of money, costs, accounts, reckonings,
covenants, contracts, agreements, promises, doings, omissions, damages,
executions, obligations, liabilities and expenses (including attorney’s fees
and costs), of every kind and nature that the Company ever had or now has
against you as of the date of this agreement.


 


2.                                      Non-Disclosure, Non-Competition and Non-Solicitation
Obligations – You acknowledge and reaffirm your obligation to
keep confidential and not to disclose any and all non-public information
concerning the Company which you acquired during the course of your employment
with the Company, including, but not limited to, any non-public information
concerning the Company’s business affairs, business prospects and financial
condition, as is stated more fully in your non-disclosure agreement with the
Company dated June 27, 1985 (the “NDA Agreement”).  You further acknowledge and reaffirm your
non-competition and non-solicitation obligations under the NDA Agreement for
the benefit of the Company.


 


3.                                      Return of Company Property – Except
for any property that you and the Company agree you may retain in connection
with your service to the Company as an Advisor (as defined in the Executive
Retirement Agreement) and which you agree to return to the Company upon
termination of your service as an Advisor, you confirm that you have returned
to the Company all keys, files, records (and copies thereof), equipment
(including, but not limited to, computer hardware, software and printers,
wireless handheld devices, cellular phones, pagers, etc.), Company
identification, Company vehicles and any other Company-owned property in your
possession or control and have left intact all electronic Company documents,
including but not limited to, those that you developed or helped develop during
your employment.  You further confirm
that, except 


 

















 


for those
accounts you and the Company agree may be maintained in connection with your
service to the Company as an Advisor and which you agree to cancel upon
termination of your service as an Advisor, you have cancelled all accounts for
your benefit, if any, in the Company’s name, including but not limited to,
credit cards, telephone charge cards, cellular phone and/or pager accounts and
computer accounts.


 


4.                                      Business Expenses and Compensation
- You acknowledge that you have been reimbursed by the Company for all business
expenses incurred in conjunction with the performance of your employment and
that no other reimbursements are owed to you. 
You further acknowledge that you have received payment in full for all
services rendered in conjunction with your employment by the Company and that no
other compensation is owed to you except as provided herein.


 


5.                                      Non-Disparagement
- You understand and agree that, as a condition for payment to you of the
consideration herein described, you shall not make any false, disparaging or
derogatory statements to any media outlet, industry group, financial
institution or current or former employee, consultant, client or customer of
the Company regarding the Company or any of its directors, officers, employees,
agents or representatives or about the Company’s business affairs and financial
condition; provided, however, that nothing herein shall prevent
you from making truthful disclosures to any governmental entity or in any
litigation or arbitration.  The Company
agrees not to make any false, disparaging or derogatory statements about you to
any media outlet, industry group, financial institution, or current or former
employee, consultant, client, or customer; provided, however,
that nothing herein shall prevent the Company from making truthful disclosures
to any governmental entity or in any litigation or arbitration.  In the event that any inquiries are directed
to the Company’s Human Resources Office regarding you from prospective
employers, the Company will explain its neutral reference policy, confirm only the
fact of your former employment with the Company, starting and ending dates, and
your job title in the last position held.


 


6.                                      Amendment -
This agreement shall be binding upon the parties and may not be modified in any
manner, except by an instrument in writing of concurrent or subsequent date
signed by duly authorized representatives of the parties hereto.  This agreement is binding upon and shall
inure to the benefit of the parties and their respective agents, assigns,
heirs, executors, successors and administrators.


 


7.                                      Waiver of Rights - No delay or
omission by the Company in exercising any right under this agreement shall
operate as a waiver of that or any other right. 
A waiver or consent given by the Company on any one occasion shall be
effective only in that instance and shall not be construed as a bar or waiver
of any right on any other occasion.


 


8.                                      Validity -
Should any provision of this agreement be declared or be determined by any
court of competent jurisdiction to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term or provision shall be deemed not to be a part of
this agreement.


 

















 


9.                                      Nature of Agreement - You
understand and agree that this agreement does not constitute an admission of
liability or wrongdoing on the part of the Company.


 


10.                               Acknowledgments - You acknowledge
that you have been given at least twenty-one (21) days to consider this
agreement and that the Company advised you to consult with an attorney of your
own choosing prior to signing this agreement. 
You understand that you may revoke this agreement for a period of seven (7) days
after you sign this agreement, and the agreement shall not be effective or
enforceable until the expiration of this seven (7) day revocation
period.  You
understand and agree that by entering into this agreement you are waiving any
and all rights or claims you might have under The Age Discrimination in
Employment Act, as amended by The Older Workers Benefit Protection Act, and
that you have received consideration beyond that to which you were previously
entitled.


 


11.                               Voluntary
Assent - You affirm that no other promises or agreements of any
kind have been made to or with you by any person or entity whatsoever to cause
you to sign this agreement, and that you fully understand the meaning and
intent of this agreement.  You state and
represent that you have had an opportunity to fully discuss and review the
terms of this agreement with an attorney. 
You further state and represent that you have carefully read this
agreement, understand the contents herein, freely and voluntarily assent to all
of the terms and conditions hereof, and sign your name of your own free act.


 


12.                               Applicable
Law - This agreement shall be interpreted and construed by the
laws of the Commonwealth of Massachusetts, without regard to conflict of laws
provisions.  You hereby irrevocably
submit to and acknowledge and recognize the jurisdiction of the courts of the
Commonwealth of Massachusetts, or if appropriate, a federal court located in
Massachusetts (which courts, for purposes of this agreement, are the only
courts of competent jurisdiction), over any suit, action or other proceeding
arising out of, under or in connection with this agreement or the subject
matter hereof.


 


 


Sepracor Inc.


 


 


	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Title:

  



 


I hereby agree to the terms and conditions
set forth above.  I have been given at
least twenty-one (21) days to consider this agreement and I have chosen to
execute this on the date below.  I intend
that this agreement become a binding agreement between me and the Company if I
do not revoke my acceptance in seven (7) days by notifying                                               
in writing.


 


	
   

  	
   

  	
  Date

  	
   

  
	
  Employee
  Name:

  	
   

  	
   

  



 

















 


EXHIBIT B


 


SEPRACOR INC.


 


Restricted
Stock Agreement


 


	
  Name of
  Recipient:

  	
   

  	
   

  
	
   

  	
   

  
	
  Number of
  shares of restricted common

  stock awarded:

  	
   

  	
   

  
	
   

  	
   

  
	
  Grant Date:

  	
   

  	
   

  



 


Sepracor Inc. (the “Company”)
has selected you to receive the restricted stock award described above, which
is subject to the provisions of the Company’s 2000 Stock Incentive Plan (the “Plan”)
and the terms and conditions contained in this Restricted Stock Agreement.  Please confirm your acceptance of this
restricted stock award and of the terms and conditions of this Agreement by
signing a copy of this Agreement where indicated below.


 


	
   

  	
  SEPRACOR INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  [insert name and title]

  
	
  Accepted and Agreed:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [insert name of
  recipient]

  	
   

  
						



 

















 


SEPRACOR INC.


 


Restricted Stock Agreement


 


The terms and conditions of the
award of shares of restricted common stock of the Company (the “Restricted
Shares”) made to the Recipient, as set forth on the cover page of this
Agreement, are as follows:


 


1.             Issuance
of Restricted Shares.


 


a.             The
Restricted Shares are issued to the Recipient, effective as of the Grant Date
(as set forth on the cover page of this Agreement), in consideration of
employment services rendered and to be rendered by the Recipient to the
Company.


 


b.             The
Restricted Shares will initially be issued by the Company in book entry form
only, in the name of the Recipient. 
Following the vesting of any Restricted Shares pursuant to Section 2
below, the Company shall, if requested by the Recipient, issue and deliver to
the Recipient a certificate representing the vested Restricted Shares.    The Recipient agrees that the Restricted
Shares shall be subject to the forfeiture provisions set forth in Section 3
of this Agreement and the restrictions on transfer set forth in Section 4
of this Agreement.


 


2.             Vesting.


 


a.             Vesting
Schedule.  Unless otherwise provided
in this Agreement or the Plan, the Restricted Shares shall vest in accordance
with the following vesting schedule:  50%
of the total number of Restricted Shares shall vest on the first anniversary of
the Grant Date and 50% of the total number of Restricted Shares shall vest on
the second anniversary thereafter.   Any
fractional number of Restricted Shares resulting from the application of the
foregoing percentages shall be rounded down to the nearest whole number of
Restricted Shares.


 


b.             Acceleration
of Vesting.  Notwithstanding the
foregoing vesting schedule, all unvested Restricted Shares  shall vest effective (i) immediately
prior to a Change in Control Event (as defined in the Plan) and/or (ii) upon
the Company’s termination of the Recipient’s employment or service as an
Advisor pursuant to Section 5(d) or Section 6(d) of the
Executive Retirement Agreement entered into between you and the Company dated
as of December 27, 2007.


 


3.             Forfeiture
of Unvested Restricted Shares Upon Employment Termination.


 


In the event that the Recipient
ceases to be employed by, a director of, or a consultant or advisor to, the
Company for any reason or no reason, with or without cause all of the
Restricted Shares that are unvested as of the time of such employment
termination shall be forfeited immediately and automatically to the Company,
without the payment of any consideration to the Recipient, effective as of such
termination of employment.  The Recipient
shall have no further rights with respect to any Restricted Shares that are so
forfeited.  If the Recipient is employed
by a subsidiary of the Company, any references in this Agreement to employment
with the Company shall instead be deemed to refer to employment with such
subsidiary.


 

















 


4.             Restrictions
on Transfer.


 


The Recipient shall not sell,
assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of
law or otherwise (collectively “transfer”) any Restricted Shares, or any
interest therein, until such Restricted Shares have vested, except that the
Recipient may transfer such Restricted Shares as part of the sale of all or
substantially all of the shares of capital stock of the Company (including
pursuant to a merger or consolidation). 
The Company shall not be required (i) to transfer on its books any
of the Restricted Shares which have been transferred in violation of any of the
provisions of this Agreement or (ii) to treat as owner of such Restricted
Shares or to pay dividends to any transferee to whom such Restricted Shares
have been transferred in violation of any of the provisions of this Agreement.


 


5.             Restrictive
Legends.


 


The book entry account
reflecting the issuance of the Restricted Shares in the name of the Recipient
shall bear a legend or other notation upon substantially the following terms:


 


“These shares of stock are
subject to forfeiture provisions and restrictions on transfer set forth in a
certain Restricted Stock Agreement between the corporation and the registered
owner of these shares (or his or her predecessor in interest), and such
Agreement is available for inspection without charge at the office of the
Secretary of the corporation.”


 


6.             Rights
as a Shareholder.


 


Except as otherwise provided in
this Agreement, for so long as the Recipient is the registered owner of the
Restricted Shares, the Recipient shall have all rights as a shareholder with
respect to the Restricted Shares, whether vested or unvested, including,
without limitation, any rights to receive dividends and distributions with
respect to the Restricted Shares and to vote the Restricted Shares and act in
respect of the Restricted Shares at any meeting of shareholders.


 


7.             Provisions
of the Plan.


 


This Agreement is subject to
the provisions of the Plan, a copy of which is furnished to the Recipient with
this Agreement.  As provided in the Plan,
upon the occurrence of a Acquisition Event that is not a Change in Control
Event (as such terms are defined in the Plan), the rights of the Company hereunder
(including the right to receive forfeited Restricted Shares) shall inure to the
benefit of the Company’s successor and, unless the Board determines otherwise,
shall apply to the cash, securities or other property which the Restricted
Shares were converted into or exchanged for pursuant to such Acquisition Event
in the same manner and to the same extent as they applied to the Restricted
Shares under this Agreement.


 


8.             Tax
Matters.


 


a.             Acknowledgments;
Section 83(b) Election. 
The Recipient acknowledges that he or she is responsible for obtaining
the advice of the Recipient’s own tax advisors with respect to the acquisition
of the Restricted Shares and the Recipient is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents with respect to the tax consequences relating to the Restricted
Shares.  The Recipient understands that 


 

















 


the Recipient (and not the Company) shall be
responsible for the Recipient’s tax liability that may arise in connection with
the acquisition, vesting and/or disposition of the Restricted Shares.  The Recipient acknowledges that he or she has
been informed of the availability of making an election under Section 83(b) of
the Internal Revenue Code, as amended, with respect to the issuance of the
Restricted Shares and that the Recipient has decided not to file a Section 83(b) election.


 


b.             Withholding.
The Recipient acknowledges and agrees that the Company has the right to deduct
from payments of any kind otherwise due to the Recipient any federal, state,
local or other taxes of any kind required by law to be withheld with respect to
the vesting of the Restricted Shares.  On
each date on which Restricted Shares vest, the Company shall deliver written
notice to the Recipient of the amount of withholding taxes due with respect to
the vesting of the Restricted Shares that vest on such date; provided, however,
that the total tax withholding cannot exceed the Company’s minimum statutory
withholding obligations (based on minimum statutory withholding rates for
federal and state tax purposes, including payroll taxes, that are applicable to
such supplemental taxable income).  The
Recipient shall satisfy such tax withholding obligations by making a cash
payment to the Company on the date of vesting of the Restricted Shares, in the
amount of the Company’s withholding obligation in connection with the vesting
of such Restricted Shares.


 


9.             Miscellaneous.


 


a.             No
Right to Continued Employment.  The
Recipient acknowledges and agrees that, notwithstanding the fact that the
vesting of the Restricted Shares is contingent upon his or her continued
employment by the Company, this Agreement does not constitute an express or
implied promise of continued employment or confer upon the Recipient any rights
with respect to continued employment by the Company.


 


b.             Governing
Law.  This Agreement shall be
construed, interpreted and enforced in accordance with the internal laws of the
State of Delaware without regard to any applicable conflicts of laws
provisions.


 

















 


EXHIBIT C


 


Retirement
Health Benefits


 


Sepracor Inc. shall provide continued access to health benefits to the
officer under, at the election and expense of the officer, Sepracor’s Blue
Cross Blue Shield PPO policy or BlueChoice policy (the “Policies”), following
the officer’s retirement from Sepracor, for so long as (i) Sepracor
continues to offer such Policy and (ii) the Policy allows for such
continued access; and, to the extent Sepracor no longer maintains at least one
of the Policies, or access is no longer allowed under either of the Policies,
Sepracor shall allow the officer continued access to health benefits under a
successor policy, or otherwise, for so long as it offers health benefits to its
employees.