Contract
EMPLOYMENT
AGREEMENT
(this
“Agreement”),
dated
as of August 7, 2007 between inVentiv Health, Inc., a Delaware corporation
with
an office at 000 Xxxxxxxxxx Xxxx, Xxxxxxx Court North, Somerset, New Jersey
08873 (the “Employer”),
and
R. Xxxxx Xxxxxx, an individual whose current residence is as reflected in the
Employer’s records (the “Executive”).
In
consideration of the mutual covenants and promises contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties agree as follows:
| 1. |
Term
of Employment; Title; Duties; Authority.
|
| (a) |
The
Employer hereby employs the Executive, and the Executive hereby accepts
employment with the Employer, upon the terms set forth in this Agreement,
effective as of July 1, 2007 (the “Effective
Date”)
and continuing until the date of the termination of the Executive’s
employment hereunder in accordance with the terms of this Agreement
(the
“Termination
Date”).
The Executive shall serve as the President of the Employer from and
after
July 1, 2007, with such authority, duties and responsibilities as
are
commensurate with such position.
|
| (b) |
During
the term of his employment hereunder, the Executive shall report
to the
Chief Executive Officer of the Employer. The Employer will cause
Communications to comply with, and the Executive is an intended
third-party beneficiary of, the obligations of Communications under
Section 4.8 of the Acquisition Agreement dated as of September 6,
2005 (the “Acquisition
Agreement”),
relating to the acquisition by a subsidiary of the Employer of inVentiv
Communications, Inc. (“Communications”)
until January 1, 2008. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Acquisition
Agreement.
|
| 2. |
Extent
of Services.
|
During
the term of his employment hereunder, the Executive agrees to devote his entire
business time and attention to the performance of his duties under this
Agreement. The Executive shall perform his duties to the best of his ability
and
shall use his reasonable best efforts to further the interests of the Employer.
The Executive agrees to comply with his obligations under Section 4.8 of the
Acquisition Agreement during the period ending January 1, 2008. The Executive
shall not, while employed by the Employer, unless otherwise agreed to in advance
in writing by the Employer, commence employment with any other party or become
self-employed, provided that it shall not constitute a breach of the Executive’s
obligations under this Section 2(a) to (i) serve on corporate, civic or
charitable boards or committees, subject to Section 8 of this Agreement,
(ii) deliver lectures or fulfill speaking engagements, subject to Section 9
of this Agreement, or (iii) manage personal investments, in each case so
long as such activities do not materially interfere with the Executive’s
performance of his duties to the Employer. It is expressly understood and agreed
that, to the extent that any such activities are being conducted by the
Executive as of the date of this Agreement, the continued conduct of such
activities (or the conduct of activities similar in nature and scope thereto)
in
a substantially similar manner and degree subsequent to the date of this
Agreement shall be deemed not to materially interfere with the performance
of
the Executive’s duties to the Employer under this Agreement. The Executive shall
not be required to be based at any office or location outside the greater
Columbus, Ohio metropolitan area or to relocate his residence.
| (a) |
The
Executive represents and warrants to the Employer that he is able
to enter
into this Agreement and that his ability to enter into this Agreement
and
to fully perform his duties hereunder are not limited to or restricted
by
any agreements or understandings between the Executive and any other
person. For the purposes of this Agreement, the term “person”
means any natural person, corporation, partnership, limited liability
partnership, limited liability company or any other entity of any
nature.
|
3. Compensation.
| (a) |
The
Employer shall pay the Executive a base salary at an annualized rate
of
$490,000 retroactive to July 1, 2007, subject to annual review by
the
Board of Directors of the Employer (the “Board”)
or the Compensation Committee thereof, which may increase, but not
decrease, the amount (the “Base
Salary”).
The Base Salary shall be paid periodically in accordance with the
Employer’s ordinary payroll practices for executive personnel, less
deductions required by law or pursuant to the benefit plans and policies
of the Employer and its affiliates.
|
| (b) |
The
Executive shall be eligible for a bonus in each calendar year, commencing
with calendar year 2007, based
on the Executive’s success in reaching or exceeding performance
objectives as determined by the Chief Executive Officer of the Employer
(the “Bonus”),
the amount of such Bonus, if any, to be determined in the discretion
of
the Employer, and (unless the Executive’s employment is terminated by the
Employer without Cause between January 1 and January 15 of the year
following the year with respect to which the Bonus is earned) subject
to
the Executive remaining employed by the Employer through January
15 of the
year following the year with respect to which the Bonus is earned
(the
“Payment
Eligibility Condition”).
The Executive shall be eligible for a prorated Bonus with respect
to the
period from July 1, 2007 until December 31, 2007 based on the Executive’s
success in reaching or exceeding performance objectives, as determined
by
the Chief Executive Officer of the Employer for such period.
Notwithstanding the foregoing, any portion of the Bonus that is paid
under
a plan or program administered by the Board or the Compensation Committee
thereof shall be determined by the Board or the Compensation Committee
(with appropriate input from the Chief Executive Officer of the Employer).
Any Bonus will be paid at the same time bonuses are paid to executive
officers generally. The Executive’s target Bonus in each calendar year
shall be 75% of the Executive’s then current Base Salary and the maximum
Bonus that may be paid shall be 150% of the Executive’s then current Base
Salary. The amount of the Bonus, if any, that is actually awarded
shall be
determined at the discretion of the Employer. All or any portion
of the
Bonus may be awarded pursuant to a plan satisfying the requirements
of
Section 162(m) of the Internal Revenue Code of 1986, as amended (the
“Code”).
|
| (c) |
Subject
to the execution by the Executive of the Employer’s applicable award
documentation, the Employer shall grant to the Executive (i) in respect
of
the Executive’s promotion to President of the Employer, a special equity
incentive award grant on or about July 1, 2007 having a value of
approximately $1,500,000; and (ii) an equity incentive award with
a value
of approximately $750,000 as part of its 2008 annual grants to the
Employer’s executives. The award documentation for the awards described in
clause (i) shall be in substantially the forms attached hereto as
Appendix
A and the award documentation for the awards described in clause
(ii)
shall be in substantially the form used for grants to other executive
officers of the Employer. The value of equity awards shall be determined
in accordance with Statement of Financial Accounting Standards No.
123R.
The Executive will be eligible for annual equity grants commensurate
with
the Executive’s position for 2009 and beyond, with each such grant, if
any, subject to the discretion of the Compensation Committee of the
Board
of the Employer. All grants provided for herein shall be subject
to (i)
the terms and conditions of the inVentiv Health, Inc. 2006 Long-Term
Incentive Plan (or any successor plan), (ii) the determination of
the
Compensation Committee as to vesting schedule, allocation as between
different forms of equity grant and allocation between performance-based
and non-performance-based grants, and (iii) the Executive remaining
employed until the time of grant.
|
| 4. |
Fringe
Benefits.
|
| (a) |
The
Executive shall be entitled to participate in all benefit plans,
policies,
programs or arrangements which the Employer provides to its executive
officers in accordance with the terms thereof as in effect from time
to
time. The Employer represents, and the Executive acknowledges that,
the
Employer does not maintain any retirement programs as of the date
hereof
other than the Employer’s 401(k)
plan.
|
| (b) |
The
Executive shall be entitled to four (4) weeks of vacation during
each year
of employment, to be prorated monthly for partial years. Such vacation
shall be taken at such time or times consistent with the reasonable
needs
of the business of the Employer. The Executive shall be entitled
to sick
leave and holidays in accordance with the policies of the
Employer.
|
| (c) |
During
the period of the Executive’s employment, the Employer shall pay to the
Executive as a car allowance the net amount of $833 per month paid
as
taxable wages. The allowance will end effective with the Executive’s
termination.
|
| (d) |
The
Employer shall provide the Executive with at least one million dollars
($1,000,000) in term life insurance
coverage.
|
| (e) |
For
so long as the Executive is an officer or director of the Employer
or any
of its subsidiaries and thereafter for so long as such insurance
is
carried by the Employer, the Employer shall provide, at its expense,
director’s and officer’s insurance and indemnity coverage covering the
Executive, in each case on the same terms as it provides to other
executive officers and directors of the Employer or its subsidiaries
or,
for any period during which the Executive is no longer employed,
on the
same terms as it provides to other former executive officers and
directors
of the Employer or its
subsidiaries.
|
| 5. |
Reimbursement
of Business Expenses.
|
The
Employer shall reimburse the Executive in accordance with the Employer’s
policies generally applicable to executive officers for all reasonable
out-of-pocket costs (including, without limitation, the cost of chartered
airplane travel when reasonable alternative travel is not practicable) incurred
or paid by the Executive in connection with, or related to, the performance
of
his duties, responsibilities or services under this Agreement, upon presentation
by the Executive of documentation, expense statements, vouchers and/or such
other supporting information as the Employer may reasonably
request.
| 6. |
Disability.
|
For
purposes of this Agreement, “Disabled”
or
“Disability”
means
the suffering of a physical or mental incapacity as a result of which the
Executive becomes unable to continue to perform fully his duties, with
“reasonable accommodation,” as defined in the Americans with Disabilities Act
and applicable state laws, hereunder for a consecutive period of one hundred
twenty (120) days. The Employer may terminate the Executive’s employment by
reason of Disability upon ten (10) days’ prior written notice. At the Employer’s
option, such physical or mental incapacity may be determined by a physician
selected by the Employer and reasonably acceptable to Executive or presumed
by
the Employer on the basis of Executive’s failure to perform the duties and
services of his position for a period of one hundred twenty (120)
days.
| 7. |
Termination.
|
| (a) |
The
Executive’s employment shall be “at will” and may be terminated at any
time by the Employer with or without Cause, subject to the terms
of this
Agreement and clause (c)(vi) of Section 4.8 of the Acquisition Agreement.
|
| (b) |
For
the purposes of this Agreement, “Cause”
shall mean any of the following: (i) a material breach by the
Executive of this Agreement, including without limitation the provisions
of Section 8 or 9 of this Agreement, or, until January 1, 2008, Section
4.8 of the Acquisition Agreement, which, to the extent susceptible
of
cure, is not cured within ten (10) business days after written notice
to
the Executive (or any shorter notice period reasonably necessary
to avoid
material harm to the Employer or Communications) that identifies
with
reasonable specificity the manner in which the Employer believes
the
Executive has breached; (ii) the Executive willfully engaging in
misconduct which is materially injurious to the Employer or any of
its
Affiliates (including Communications); (iii) the Executive’s willful gross
neglect of his duties for which he is employed or refusal or failure
to
follow the material, lawful directives of the Chief Executive Officer
of
the Employer in any material respect, in either case, where such
neglect,
refusal or failure is not due to the Executive’s physical or mental
incapacity and, which to the extent susceptible of cure, is not cured
within ten (10) business days after written notice to the Executive
(or
any shorter notice period reasonably necessary to avoid material
harm to
the Employer) that identifies with reasonable specificity the willful
gross neglect or failure to follow directives; and (iv) the Executive’s
conviction of a felony or any misdemeanor involving dishonesty, fraud
or
moral turpitude or the entry of a guilty or nolo contendere
plea with respect thereto. For purposes of this Section 7(b), no
act or
failure to act on the part of the Executive shall be considered
“willful”
unless it is done, or omitted to be done, by the Executive in bad
faith or
without reasonable belief that the Executive’s act or omission was in the
best interests of the Employer. Any act, or failure to act, based
upon
express authority given pursuant to the written direction of the
Chief
Executive Officer of the Employer or the Board with respect to such
act or
omission shall be presumed to be done, or omitted to be done, by
the
Executive in good faith and in the best interests of the Employer.
The
termination of the Executive’s employment for Cause shall not be deemed to
be effective unless and until the Employer’s Chief Executive Officer and
Board find (after reasonable notice, specifying the particulars thereof
in
reasonable detail, is provided to the Executive and the Executive
is given
an opportunity, together with counsel, to be heard before the Board),
that, in the good faith opinion of the Board, the Executive is guilty
of
the conduct described in clause (i), (ii), (iii) or (iv)
above.
|
| (c) |
The
Executive may terminate his employment with the Employer for “Good Reason”
by notice to the Employer (i) within ninety (90) days of the occurrence
or
the events or circumstances in which such termination for “Good Reason” is
based and (ii) following, in the case of any termination for “Good Reason”
pursuant to clause (i), (ii), (iii) or (v) below, reasonable notice,
specifying the particulars thereof in reasonable detail, to the Chief
Executive Officer of the Employer an opportunity for the Chief Executive
Officer, together with counsel, to confer with the Executive. For
purposes
of this Agreement, “Good
Reason”
shall mean any of the following: (i) the assignment to the Executive
of
any duties materially inconsistent with the Executive’s position as
President (including status, offices, title(s) and reporting
requirements), authority, duties or responsibilities, or any other
action
by the Employer which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose
any
action not taken in bad faith and which is remedied by the Employer
within
ten (10) business days after receipt of written notice thereof given
by
the Executive that identifies with reasonable specificity the manner
in
which the Executive believes the Employer has violated this clause;
(ii)
any failure of the Executive to be nominated for election as a director
of
the Employer or the removal of the Executive as a director of the
Employer
by the Board other than for Cause; (iii) any material breach of this
Agreement or (subject to Section 16(c) of this Agreement), until
January
1, 2008, Section 4.8 of the Acquisition Agreement by the Employer or
inChord Holding Corporation or its subsidiaries, that is not remedied
by
the Employer within ten (10) business days after written notice to
the
Employer that identifies with reasonable specificity the manner in
which
the Executive believes the Employer or subsidiary, as applicable,
has
breached this Agreement or Section 4.8 of the Acquisition Agreement;
(iv) any purported termination by the Employer of the Executive’s
employment otherwise than as expressly permitted by this Agreement;
(v)
any failure by the Employer to comply with and satisfy Section 16(g)
of
this Agreement which is not remedied within ten (10) business days
after
the closing of a transaction contemplated by subparagraph (ii) of
Section
16(g) of this Agreement; or (vi) any
termination of employment by the Executive during the 30-day period
following the one (1) year anniversary of a Change in Control.
|
| (d) |
The
Executive may terminate his employment other than for Good Reason,
provided that prior to any termination pursuant to this Section 7(d),
the
Executive shall provide not less than (i) six (6) months’ prior written
notice thereof to the Chief Executive Officer of the Employer if
such
notice is given prior to January 1, 2008 or (ii) forty-five (45)
days’
prior written notice thereof to the Chief Executive Officer of the
Employer if such notice is given on or after January 1,
2008.
|
| (e) |
Upon
any termination of employment, regardless of the reason therefor,
the
Employer shall pay to the Executive or his estate (i) the Base Salary
through the date of termination, (ii) subject to satisfaction of
the
Payment Eligibility Condition, any earned but unpaid Bonus amount,
(iii)
any expenses subject to reimbursement in accordance with Section
5 of this
Agreement and (iv) any
benefits due to Executive under any employee benefit plan of the
Employer
and any payments due to Executive under the terms of any Employer
program,
arrangement or agreement, excluding any severance program or policy,
in
each case at the times and in the amounts determined in accordance
with
the terms of such plan, program, arrangement or agreement (the
“Accrued
Amounts”).
Upon any termination of employment by the Employer for Cause or by
the
Executive other than for Good Reason, or death or Disability, the
Executive shall be entitled only to the Accrued Amounts and the Employer
shall, except as required by law, have no other obligations hereunder
or
otherwise with respect to the Executive’s employment from and after the
termination date and shall have no other obligations to the Executive
in
respect of such termination (including under any severance plan or
policy
of the Employer or any of its affiliates), and the Employer shall
continue
to have all other rights available hereunder.
|
| (f) |
(i)
If the Executive’s employment is terminated by the Employer without Cause
(whether or not clause (c)(vi) of Section 4.8(a) of the Acquisition
Agreement is applicable) or if the Executive terminates his employment
for
Good Reason, in each case prior to a Change in Control, then in addition
to the payment of the Accrued Amounts, the Executive shall be entitled
to:
(a) a lump sum payment, payable, subject to Section 13, within the
(10)
business days of the date of the Executive’s termination, equal to the sum
of (I) the aggregate of the Base Salary that would otherwise have
been
payable if the Executive continued the Executive’s employment hereunder
for twelve (12) months following the date of such termination and
(II) the
average annualized Bonus paid to the Executive for the three (3)
preceding
fiscal years, disregarding any fiscal years for which the Executive
was
not eligible for a Bonus in accordance with the terms hereof (or,
if such
termination occurs prior to January 15, 2008, an amount equal to
75% of
the annual Base Salary); and (b) vesting of the portion of all equity
incentive awards, including options, stock appreciation rights, restricted
stock units and restricted shares previously granted to the Executive,
that would have vested had the Executive’s employment continued until the
first anniversary of the effective date of such termination (and
with
respect to any performance-based awards, based on the deemed attainment
of
applicable performance objectives at target levels), and each such
equity
incentive award shall remain exercisable, where applicable (but subject
to
the terms of the equity plan under which such awards were granted
relating
to extraordinary transactions and forfeiture for misconduct), to
the
applicable date provided in Section 13 of this Agreement. Such severance
pay shall be paid, net of payroll taxes and other legally required
deductions. The Employer shall, except as required by law and as
described
in Section 7(i) of this Agreement, have no other obligations hereunder
or
otherwise with respect to the Executive’s employment from and after the
termination date and shall have no other obligations to the Executive
in
respect of a termination described in the first sentence of this
Section
7(f)(i) (including under any severance plan or policy of the Employer
or
any of its affiliates), and the Employer shall continue to have all
other
rights available hereunder.
|
(ii)
If
the Executive dies or his employment is terminated by the Employer because
of
his Disability, in each case prior to a Change in Control, then in addition
to
the payment of the Accrued Amounts, the Executive shall be entitled to a lump
sum payment, payable, subject to Section 13 of this Agreement, within the ten
(10) business days of the date of the Executive’s termination, equal to the sum
of (a) the aggregate of the Base Salary that would otherwise have been payable
if the Executive continued the Executive’s employment hereunder for twelve (12)
months following the date of such termination and (b) the average annualized
Bonus paid to the Executive for the three (3) preceding fiscal years,
disregarding any fiscal years for which the Executive was not eligible for
a
Bonus in accordance with the terms hereof (or, if such termination occurs prior
to January 15, 2008, an amount equal to 75% of the annual Base Salary). Such
severance pay shall be paid, net of payroll taxes and other legally required
deductions. The Employer shall, except as required by law and as described
in
Section 7(i) of this Agreement, have no other obligations hereunder or otherwise
with respect to the Executive’s employment from and after the termination date
and shall have no other obligations to the Executive in respect of a termination
described in the first sentence of this Section 7(f)(ii) (including under any
severance plan or policy of the Employer or any of its affiliates), and the
Employer shall continue to have all other rights available
hereunder.
| (g) |
Upon
a Change in Control during the Executive’s employment hereunder, the
Executive shall be entitled to: (i) a lump sum payment equal to the
sum of
(A) the aggregate of the Base Salary that would otherwise have been
payable if the Executive continued the Executive’s employment hereunder
for nine (9) months following such Change in Control and (B) 75%
of the
average annual Bonus paid to the Executive for the three (3) preceding
fiscal years, disregarding any fiscal years for which the Executive
was
not eligible for a Bonus in accordance with the terms hereof (or,
if such
Change in Control occurs prior to January 15, 2008, an amount equal
to
56.25% of the annual Base Salary); (ii) full vesting of all equity
incentive awards, including options, stock appreciation rights, restricted
stock units and restricted shares previously granted to the Executive
(and
with respect to any such equity awards that may be performance-based,
based on the deemed attainment of applicable performance objectives
at
target levels), and each such equity incentive award shall remain
exercisable, where applicable (but subject to the terms of the equity
plan
under which such awards were granted relating to extraordinary
transactions and forfeiture for misconduct), to the applicable date
provided in Section 13(a) of this Agreement; and (iii) any Gross-Up
Payment due in accordance with Section 7(l) of this Agreement. The
amount
described in clauses (i) and (iii) of the preceding sentence shall
be
payable net of payroll taxes and other legally required deductions.
The
Employer shall have no other obligations to the Executive in respect
of a
Change of Control (including under any severance plan or policy of
the
Employer or any of its affiliates) and the Employer and Executive
shall
continue to have all other rights available
hereunder.
|
| (h) |
If
the Executive is terminated by the Employer without Cause (whether
or not
clause (c)(vi) of Section 4.8 of the Acquisition Agreement is applicable),
if the Executive terminates his employment for Good Reason or if
the
Executive dies or is terminated for Disability, in each case within
thirteen (13) months after a Change in Control, then in addition
to the
payment of the Accrued Amounts, the Executive shall be entitled to
receive
a lump sum payment, subject to Section 13, equal to the sum of: (i)
the
aggregate of the Base Salary that would otherwise have been payable
if the
Executive continued the Executive’s employment hereunder for nine (9)
months following such termination; (ii) 75% of the average annualized
Bonus paid to the Executive for the three (3) preceding fiscal years,
disregarding any fiscal years for which the Executive was not eligible
for
a Bonus in accordance with the terms hereof (or, if such termination,
Disability or death occurs prior to January 15, 2008, an amount equal
to
56.25% of the annual Base Salary); and (iii) any Gross-Up Payment
due in
accordance with Section 7(l) of this Agreement. Such severance pay
shall
be payable, net of payroll taxes and other legally required deductions.
The Employer shall, except as required by law and as described in
Section
7(i) of this Agreement, have no other obligations hereunder or otherwise
with respect to the Executive’s employment from and after the termination
date and shall have no other obligations to the Executive in respect
of a
termination described in the first sentence of this Section 7(h)
(including under any severance plan or policy of the Employer or
any of
its affiliates), and the Employer shall continue to have all other
rights
available hereunder.
|
| (i) |
(i)
If
the Executive is terminated by the Employer without Cause (whether
or not
clause (c)(vi) of Section 4.8 of the Acquisition Agreement is applicable),
if the Executive terminates his employment for Good Reason, if the
Executive's employment terminates by reason of his death or if the
Executive is terminated for Disability, the Executive will be entitled
to:
(A) except where the Executive's employment terminates by reason
of his
death, for a period of eighteen (18) months following such termination
of
employment, continued coverage under any Employer-provided life insurance
in which the Executive was participating or covered immediately prior
to
the date of termination (with respect to group plans, on the same
basis as
such coverage is made available to senior executives of the Employer
during such period) and (B) subject to the Executive making a timely
election to continue coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”), for a period of eighteen
(18) months following the termination of the Executive’s employment, or
such longer period as any plan, program, practice or policy may provide
(the “Initial
Welfare Continuation Period”),
the Employer shall continue health benefits to the Executive (and/or
his
spouse and eligible dependents, if any) equivalent to those which
would
have been provided to them in accordance with the plans, programs,
practices and policies as made available to actively employed executives
of the Employer (including, without limitation, co-pays, deductibles
and
other required payments and limitations) as then in effect (the
“Welfare
Plans”).
The Employer shall use commercially reasonable best efforts to provide,
upon the end of the Initial Welfare Continuation Period, the Executive
(and/or his spouse and eligible dependents, if any) with the right
to
elect coverage for a period of eighteen (18) months (or, in the case
of a
termination for Disability, seven (7) months) from the end of the
Initial
Welfare Continuation Period (the "Secondary Welfare Continuation
Period")
on the same basis as COBRA coverage made available to other participants
under the Welfare Plans as if the last day of the Initial Welfare
Continuation Period was, itself, a “qualifying event” under COBRA.
Notwithstanding the foregoing, if the Executive becomes reemployed
with
another employer and is eligible to receive medical or other welfare
benefits under another employer-provided plan, the health benefits
described herein shall be secondary to those provided under such
other
plan during such Secondary Welfare Continuation Period. The benefits
provided pursuant to this Section following the Initial Welfare
Continuation Period that are not “death benefit” plans within the meaning
of Treasury Regulation Section 1.409A-1(a)(5) shall be treated as
follows,
notwithstanding any other provision hereof: the amount of such benefits
provided during one (1) calendar year shall not affect the amount
of such
benefits provided in any other taxable year. To the extent that any
such
benefits consist of reimbursement of eligible expenses, such reimbursement
must be made on or before the last day of the calendar year following
the
calendar year in which the expense was incurred. No such benefit
may be
liquidated or exchanged for another
benefit.
|
(ii) In
the
event that the continued
health coverage is not provided following the Initial Welfare Continuation
Period for
the
Executive (and/or his spouse and eligible dependents, if any) as described
in
subparagraph (i) above, the Employer shall reimburse the Executive for the
premiums for any health insurance coverage that the Executive obtains for
himself (and/or his spouse and eligible dependents, if any) during the Secondary
Welfare Continuation Period other than coverage obtained under another
employer-provided plan; provided that the maximum amount of such reimbursement
shall not exceed 200% of the amount that the Executive would have paid under
the
Employer’s group health plan had the Employer not been precluded from providing
such continued coverage following the Initial Welfare Continuation Period.
Any
such reimbursements are intended to be non-taxable medical
reimbursements.
| (j) |
Notwithstanding
the foregoing, the Executive shall not be entitled to any payment
or
benefit pursuant to Section 7(f), (h) or (i) of this Agreement unless
(i)
the Executive remains in material compliance with the Executive’s
obligations under Sections 8 and 9 of this Agreement (it being understood
that the Executive’s failure to remain in compliance with the Executive’s
obligations under this Agreement will not give rise to any right
of the
Employer to reclaim any benefit previously paid or provided) and
(ii) the
Executive (or, in the case of the Executive’s death, his estate) executes
a general release of the Employer and its affiliates, and their respective
officers, directors, employees and agents in substantially the form
and
substance attached hereto as Appendix B not later than thirty (30)
days
following the date of termination occurs.
|
| (k) |
For
purposes of this Agreement, “Change
in Control”
means
|
(i) The
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”))
(a
“Person”),
of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of more than 50% of either (A) the then-outstanding shares of
common stock (or other equity if the Employer is not a corporation) of the
Employer (the “Outstanding
Employer Common Stock”)
or
(B) the combined voting power of the then-outstanding voting securities of
the Employer entitled to vote generally in the election of directors (the
“Outstanding
Employer Voting Securities”);
provided,
however,
that,
for purposes of this Section 7(k) the following acquisitions shall not
constitute a Change in Control: (i) any acquisition directly from the
Employer; (ii) any acquisition by the Employer; or (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Employer or any Affiliated Employer;
(ii) Individuals
who, as of the Effective Date, constituted the Board (the “Incumbent
Board”)
cease
for any reason to constitute at least a majority of the Board; provided,
however,
that
any individual becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Employer’s stockholders, was
approved by a vote of at least a majority of the directors then comprising
the
Incumbent Board shall be considered as though such individual were a member
of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of
a
Person other than the Board;
(iii) Consummation
of a reorganization, merger, consolidation or sale or other disposition of
all
or substantially all of the assets of the Employer (a “Business
Combination”),
in
each case, unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the beneficial
owners of the Outstanding Employer Common Stock and the Outstanding Employer
Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of the then-outstanding shares of
common stock and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors, as the
case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation that, as a result of such transaction, owns
the Employer or all or substantially all of the Employer’s assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership immediately prior to such Business Combination
of
the Outstanding Employer Common Stock and the Outstanding Employer Voting
Securities, as the case may be, and (B) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution
of
the initial agreement or of the action of the Board providing for such Business
Combination; or
(iv) Approval
by the stockholders of the Employer of a complete liquidation or dissolution
of
the Employer.
| (l) |
Gross-Up
Payment.
|
(i) Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, award, benefit or distribution (or any acceleration
of any payment, award, benefit or distribution) by the Employer (or any of
its
affiliated entities) or any entity which effectuates a Change in Control to
or
for the benefit of the Executive (whether pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 7(l)) (the “Payments”)
would
be subject to the excise tax imposed by Section 4999 of the Code, or any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise
Tax”),
then
the Employer shall pay to the Executive an additional payment (a “Gross-Up
Payment”)
in an
amount such that after payment by the Executive of all taxes (including any
Excise Tax, but excluding any tax, penalty or interest imposed under Section
409A of the Code) imposed upon the Gross-Up Payment, the Executive retains
an
amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed
upon the Payments and (y) the product of any deductions disallowed because
of
the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income
and the highest applicable marginal rate of federal income taxation for the
calendar year in which the Gross-Up Payment is to be made. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed
to
(i) pay federal income taxes at the highest marginal rates of federal income
taxation for the calendar year in which the Gross-Up Payment is to be made,
(ii)
pay applicable state and local income taxes at the highest marginal rate of
taxation for the calendar year in which the Gross-Up Payment is to be made,
net
of the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes and (iii) have otherwise allowable
deductions for federal income tax purposes at least equal to those which could
be disallowed because of the inclusion of the Gross-Up Payment in the
Executive’s adjusted gross income.
(ii) Subject
to the provisions of Section 7(l)(i), all determinations required to be made
under this Section 7(l), including whether and when a Gross-Up Payment is
required, the amount of such Gross-Up Payment and the assumptions to be utilized
in arriving at such determinations, shall be made by the public accounting
firm
that is retained by the Employer as of the date immediately prior to the Change
in Control (the “Accounting
Firm”)
which
shall provide detailed supporting calculations both to the Employer and the
Executive within fifteen (15) business days of the receipt of notice from the
Employer or the Executive that there has been a Payment, or such earlier time
as
is requested by the Employer (collectively, the “Determination”).
In
the event that the Accounting Firm is serving as accountant or auditor for
the
individual, entity or group effecting the Change in Control, the Employer and
the Executive shall jointly appoint another nationally recognized public
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees
and
expenses of the Accounting Firm shall be borne solely by the Employer and the
Employer shall enter into any agreement requested by the Accounting Firm in
connection with the performance of the services hereunder. The Gross-Up Payment
under this Section 7(l) with respect to any Payments shall be made no later
than
thirty (30) days following such Payment. The Determination by the Accounting
Firm shall be binding upon the Employer and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
Determination, it is possible that Gross-Up Payments which will not have been
made by the Employer should have been made (“Underpayment”)
or
Gross-Up Payments are made by the Employer which should not have been made
(“Overpayment”),
consistent with the calculations required to be made hereunder. In the event
that the Executive thereafter is required to make payment of any Excise Tax
or
additional Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment (together with interest
at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly
paid by the Employer to or for the benefit of the Executive but in no event
later than the date specified in Section 13. In the event the amount of the
Gross-Up Payment exceeds the amount necessary to reimburse the Executive for
his
Excise Tax, the Accounting Firm shall determine the amount of the Overpayment
that has been made and any such Overpayment (together with interest at the
rate
provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the
Executive (to the extent he has received a refund if the applicable Excise
Tax
has been paid to the Internal Revenue Service) to or for the benefit of the
Employer. The Executive shall cooperate, to the extent his expenses are
reimbursed by the Employer, with any reasonable requests by the Employer in
connection with any contests or disputes with the Internal Revenue Service
in
connection with the Excise Tax.
| 8. |
Non-Solicitation
and Non-Competition.
|
| (a) |
The
Executive acknowledges and agrees to be bound by the provisions of
Section
4.2 of the Acquisition Agreement, which are incorporated by reference
herein. The duration of the covenants contained in said Section 4.2,
as
incorporated herein, will be unaffected by any termination of the
Executive’s employment (regardless of the reason therefor). The Executive
agrees in addition to be bound by identical covenants hereunder (as
well
as a covenant prohibiting the Executive, for his own benefit or the
benefit of any person (other than Xxxxx Xxxxxx) or entity other than
an
inVentiv Entity, from (i) hiring any present or former officer, director
or employee or (ii) engaging any present or former officer, director
or
employee as a partner, contractor, sub-contractor, employee, consultant
or
other business associate of Executive) with respect to each inVentiv
Entity, including inVentiv Communications, Inc. (f/k/a inChord
Communications, Inc.) and the Company Subsidiaries, commencing on
the date
hereof and continuing until the first anniversary of the termination
of
the Executive’s employment for any reason (or, if such termination occurs
prior to October 5, 2010, the second anniversary of such termination),
provided that for purposes of this sentence, “Restricted
Business”
means any business conducted by any inVentiv Entity as of the date
hereof
or at any time prior to the Termination Date during the Executive’s
employment by the Employer. The preceding sentence amends Section
8 of the
Employment Agreement dated as of September 6, 2005 between the Executive
and inVentiv Communications, Inc.
|
| (b) |
The
Executive agrees and acknowledges that in order to assure the inVentiv
Entities that they will retain the value of their business operations,
it
is necessary that the Executive undertake not to utilize the Executive’s
special knowledge of such business operations and the Executive’s
relationships with customers to compete with the inVentiv’s Entities.
Executive further acknowledges that:
|
(i) the
Executive is engaged in, is knowledgeable about, and provides services in
connection with all aspects of the Employer’s business;
(ii) the
Executive will occupy a position of trust and confidence with the Employer,
and
during the term of the Executive’s employment hereunder, the Executive may
become familiar with the inVentiv Entities’ trade secrets and with other
Confidential Information (as defined below) concerning the inVentiv Entities
and
the business operations of the inVentiv Entities;
(iii) the
agreements and covenants contained in Sections 8 and 9 are
essential to protect the inVentiv Entities and the goodwill of the business
operations of the inVentiv Entities and compliance with such agreements and
covenants will not impair the Executive’s ability to procure subsequent and
comparable employment; and
(iv) the
Executive’s employment with the Employer has special, unique and extraordinary
value to the inVentiv Entities and each inVentiv Entity would be irreparably
damaged if the Executive were to violate the provisions of Section 8 or
9.
| (c) |
For
purposes of Sections 8 and 9 of this Agreement, the “inVentiv
Entities”
shall be deemed to refer to the Employer and each of its subsidiaries
in
existence during the Executive’s employment with the Employer and their
successors.
|
| 9. |
Confidential
Information.
|
| (a) |
During
the Executive’s employment under this Agreement and for a period equal to
the later of one (1) year after termination hereof and the expiration
of
any non-competition or non-solicitation covenants to which the Executive
shall be bound under this Agreement or the Acquisition Agreement,
the
Executive shall hold in strict confidence, and shall not use other
than in
the conduct of the business of any inVentiv Entity (including the
Employer), all information concerning the businesses and affairs
of the
inVentiv Entities (“Confidential
Information”).
Notwithstanding the foregoing, (i) the Executive may disclose Confidential
Information (A) if the same currently is in the public domain or
hereafter
is in the public domain other than as a result of a breach of this
Section
9(a) by the Executive or (B) if the same is later acquired by the
Executive from another source and the Executive did not know that
such
source was under a contractual, legal or fiduciary obligation to
another
person to keep such information confidential and (ii) the Executive
may
disclose such of the Confidential Information as is required by law
(including by oral questions, interrogatories, requests for information
or
documents in legal proceedings, subpoena, civil investigative demand,
rule
of civil procedure or other similar process), or in connection with
his
preparation of tax returns or in response to tax audits or similar
proceedings, so long as (x) the Executive provides the Employer with
prompt written notice of any disclosure (unless such information
is
disclosed solely by virtue of including such information in a tax
return)
so that the Employer may seek a protective order or other appropriate
remedy or (y) with respect to any disclosure in connection with his
preparation of tax returns or in response to non-public tax audit
proceedings, such disclosure is made on a confidential
basis.
|
| (b) |
Upon
the effective date of notice of the Executive’s or the Employer’s election
to terminate the Executive’s employment with the Employer or upon any
termination pursuant to Section 6 of this Agreement, or at any time
upon
the request of any inVentiv Entity, the Executive (or his heirs or
personal representatives) shall deliver to the Employer or any other
applicable inVentiv Entity all documents and materials containing
Confidential Information as described herein and all documents, materials
and other property belonging to the Employer or such inVentiv Entity,
which in either case are in the possession or under the control of
the
Executive (or his heirs or personal
representatives).
|
| (c) |
All
discoveries and works made or conceived by the Executive during and
in the
course of his employment by the Employer, jointly or with others,
that
relate to the Employer’s activities shall be owned and assignable by the
Employer. The terms “discoveries” and “works” include, by way of example,
inventions, computer programs (including documentation of such programs),
technical improvements, processes, drawings and works of authorship
(excluding solely works intended for publication and public dissemination
in an individual capacity) that relate to the Employer’s business or the
business, operations or activities of any customer or client of the
Employer. The Executive shall promptly notify and make full disclosure
to,
and execute and deliver any documents requested by, the Employer
to
evidence or better assure title to such discoveries and works by
the
Employer, assist the Employer in obtaining or maintaining, at the
Employer’s expense, United States and foreign patents, copyrights, trade
secret protection and other protection of any and all such discoveries
and
works, and promptly execute, whether during his employment or thereafter,
all applications or other endorsements necessary or appropriate to
maintain patents and other rights for the Employer or its assignees
and to
protect its title thereto. Any discoveries and works which, within
six (6)
months after the termination of the Executive’s employment hereunder, are
made, disclosed, reduced to a tangible or written form or description,
or
are reduced to practice by the Executive and which pertain to work
performed by the Executive while with, and in his capacity as an
employee
of, the Employer shall, as between the Executive and the Employer,
be
presumed to have been made during the Executive’s employment by the
Employer.
|
| 10. |
Enforcement.
|
The
Executive agrees that because damages arising from violations of Sections 8
and
9 of this Agreement are extremely difficult to quantify with certainty,
injunctive relief may be necessary to effect the intent of such Sections 8
and 9
of this Agreement. Accordingly, the Executive hereby consents to the imposition
of a preliminary or permanent injunction as a remedy to his breach of Sections
8
and 9 of this Agreement (without any requirement that the Employer post a
bond).
It
is the
desire and intent of the parties hereto that the restrictions set forth in
Sections 8 and 9 of this Agreement shall be enforced and adhered to in every
particular, and in the event that any provision, clause or phrase shall be
declared by a court of competent jurisdiction to be judicially unenforceable
either in whole or in part, whether the fault be in duration, geographic
coverage or scope of activities precluded, the parties agree that the provisions
of Sections 8 and 9 of this Agreement should be interpreted and enforced to
the
maximum extent that such court deems reasonable.
| 11. |
Property
of Employer.
|
The
Executive acknowledges that from time to time in the course of providing
services pursuant to this Agreement, he shall have the opportunity to inspect
and use certain property, both tangible and intangible, of the Employer, and
the
Executive hereby agrees that such property shall remain the exclusive property
of the Employer and the Executive shall have no right or proprietary interest
in
such property, whether tangible or intangible, including, without limitation,
the customer and supplier lists, contract forms, books of account, computer
programs and similar property of the Employer.
| 12. |
Indemnification.
|
The
Employer shall indemnify the Executive against any and all losses, liabilities,
damages, expenses (including attorneys’ fees) judgments, fines and amounts paid
in settlement incurred by the Executive in connection with any claim, action,
suit or proceeding (whether civil, criminal, administrative or investigative),
including any action by or in the right of the Employer, by reason of any act
or
omission to act in connection with the performance of his duties hereunder
or
the Prior Employment Agreement, as defined in Section 16(c), to the fullest
extent that the Employer is permitted to indemnify a director, officer, employee
or agent against the foregoing under applicable law. If the Employer enters
into
indemnification agreements with any of its other executive officers of the
Employer, the Executive will be provided with contractual indemnification on
substantially the same terms as are provided to such other executive officers
of
the Employer. The indemnification authorized by this Section 12 shall not be
exclusive of, and shall be in addition to, any other rights granted to the
Executive under the Employer’s articles or by-laws (it being understood that the
amendment of the Employer’s articles or by-laws shall not be a breach hereof),
any other agreement (including without limitation the Acquisition Agreement)
or
otherwise, both as to action in his official capacity as an employee of the
Employer or its subsidiaries or an executive officer of the Employer or its
subsidiaries and as to action in another capacity while holding his positions,
and shall continue whether the Executive has ceased to be a director, officer,
employee or other representative and shall inure to the benefit of his heirs,
executors and administrators.
| 13. |
Section
409A.
|
The
parties acknowledge and agree that, to the extent applicable, this Agreement
shall be interpreted in accordance with Section 409A of the Code and the
Department of Treasury Regulations and other interpretive guidance issued
thereunder, including without limitation any such regulations or other guidance
that may be issued in the future (“Section
409A”).
The
Employer shall take, and the Executive shall cooperate with the Employer in
taking, all steps reasonably necessary to have such benefits not be deferred
compensation arrangements under Section 409A or complying with the requirements
of Section 409A, including adopting such mutually-agreed upon amendments to
this
Agreement and appropriate policies and procedures by December 31, 2007,
including amendments and policies with retroactive effect, that are reasonably
necessary or appropriate to preserve the intended tax treatment of the benefits
provided by this Agreement, provided that (i) the Employer will not be required
to take any such steps that impose any material additional costs on the Employer
and shall not take any such steps that impose any material additional costs
on
the Executive (unless the Executive otherwise consents thereto) and (ii) the
Employer will not be liable for the imposition of any tax or penalty pursuant
to
Section 409A.
Without
limitation of the preceding paragraph, the parties agree that:
| (a) |
With
respect to the time period within which the Executive may exercise
any
outstanding stock options or stock appreciation rights, the parties
agree
to avoid the imposition of Section 409A, the Executive shall be entitled
to exercise such options and rights through the earliest of (i) the
maximum date that is permitted under Section 409A, (ii) the second
anniversary of the date of the Executive’s termination or death, as
applicable (or any longer period during which executive officers
generally
are permitted to exercise stock options or stock under such circumstances)
and (iii) if the Executive's employment is terminated by the Employer
for
Cause or by the Executive other than for Good Reason (and not by
reason of
death), such date as is prescribed under the applicable incentive
plan and
grant documentation, provided that in no event will the option or
stock
appreciation right remain exercisable beyond its original term;
|
| (b) |
For
purposes of Section 7(l) of this Agreement, the Employer shall pay
the
fees and expenses of the Accounting Firm not later than the end of
the
calendar year following the calendar year in which the related work
is
performed or the expenses are incurred by the Accounting Firm and
the
Employer shall pay all other amounts that it is required to pay to
or on
behalf of the Executive under Section 7(l) of this Agreement not
later
than the end of the calendar year following the calendar year in
which the
related Taxes are remitted to the applicable taxing
authority;
|
| (c) |
Subject
to paragraph (d) below, except as otherwise provided herein, each
lump sum
payment that is to be made pursuant to this Agreement, other than
the
payment described in Section 7(f) of this Agreement, shall be made
not
later than ninety (90) days following the date of the event giving
rise to
such lump sum cash payment;
|
| (d) |
If
the Executive is a “specified employee,” defined under Section 409A and as
determined by the Employer in good faith in accordance with the Employer’s
policies, on the date of his termination from employment with the
Employer, to the extent required in order to comply with Section
409A,
cash amounts to be paid under Section 7 of this Agreement on account
of
the Executive’s termination of employment for any reason other than death
(other than Accrued Amounts) shall be paid to the Executive on the
first
business day after the date that is six (6) months following the
Executive’s “separation from service” within the meaning of Section 409A,
with interest from the date on which payment would otherwise have
been
made, calculated at the applicable federal rate provided under Section
7872(f)(2)(A) of the Code;
|
| (e) |
Any
tax gross-up payment described in Section 7(l) and any payments or
reimbursements of expenses pursuant to Section 7(i) or 14 shall be
made by
the end of the calendar year next following the calendar year in
which the
related taxes are remitted to the taxing authority by the
Executive;
|
| (f) |
Any
payment to be made pursuant to Section 7(g) of this Agreement shall
be
made upon the Change of Control but in no event later than two and
one-half (2½) months following the year in which the Change of Control
occurred; and
|
| (g) |
Each
of the payments described in this Agreement shall be classified as
a
“separate payment” under Section 409A. As used in this Agreement, a
“termination of employment” shall be mean a “separation from service”
under Code Section 409A (and the Treasury Regulations promulgated
thereunder).
|
| 14. |
Attorney’s
Fees and Costs.
|
In
the
event the Executive institutes any action to enforce his rights under this
Agreement and prevails on at least one material claim in such action, the
Employer shall pay the Executive’s reasonable cost and expenses (including legal
fees) incurred in connection with such action.
| 15. |
Mitigation.
|
In
no
event shall the Executive be obligated to seek other employment or take other
action by way of mitigation of the amounts payable to the Executive under any
of
the provisions of this Agreement and such amounts shall not be subject to offset
or otherwise reduced whether or not the Executive obtains other employment.
| 16. |
Miscellaneous.
|
| (a) |
All
notices required or permitted under this Agreement shall be given
as
provide in the Acquisition Agreement, addressed to the other party
at the
address provided therein (with respect to the Employer) or herein
(with
respect to the Executive), or at such other address or addresses
as either
party shall designate to the other in writing from time to
time.
|
| (b) |
Whenever
the context may require, any pronouns used in this Agreement shall
include
the corresponding masculine, feminine or neuter forms, and the singular
forms of nouns and pronouns shall include the plural, and vice
versa.
|
| (c) |
This
Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written
or
oral, relating to the subject matter of this Agreement (including
any
existing employment agreement between the Employer or any of its
affiliates and the Executive (including without limitation the Employment
Agreement dated as of September 6, 2005 between inVentiv Communications,
Inc. (f/k/a inChord Communications, Inc.) and the Executive (the
“Prior
Agreement”)),
which existing employment agreement shall be deemed to be of no further
force or effect upon the Effective Date) but not including the Acquisition
Agreement. Except as specifically set forth in Section 8 of this
Agreement and Section 4.2 of the Acquisition Agreement, the Executive
will have no other obligation to the Employer or any of its subsidiaries
with respect specifically to non-competition or non-solicitation
pursuant
to common law principles, fiduciary duties or any agreement to which
the
Executive becomes a party, but the Executive shall be required to
comply
with any code of conduct or policy of the Employer or any of its
subsidiaries applicable to employees generally that does not materially
conflict with this Agreement or the Acquisition Agreement and, provided
that, this Agreement shall supersede any current or future code of
conduct, policy or other agreement relating to the subject matter
of
Section 8 or Section 4.2 of the Acquisition Agreement. The Executive,
in
his capacity as Shareholder Representative under the Acquisition
Agreement, agrees that the termination of the Prior Agreement and
his
employment with inVentiv Communications, Inc. thereunder shall not,
for
purposes of the Acquisition Agreement, be deemed to be a termination
of
the Executive's employment with inVentiv Communications, Inc. Without
limitation of the foregoing, the termination of the Prior Agreement
and
the Executive's employment with inVentiv Communications, Inc. thereunder
shall not, in itself, give rise to any requirement to make the Forecast
Payment or to make any other payment or confer any other benefit
upon the
Executive or any other Shareholder, provided that if, prior to January
1,
2008, the Executive’s employment with the Employer terminates under
circumstances that would, under the term of the Acquisition Agreement,
have required the Forecast Payment to be made (assuming satisfaction
of
all performance measures set forth on Schedule I to the Prior Agreement)
if the Executive were an employee of inVentiv Communications, Inc.,
then
Forecast Payment will be required to be made in accordance with Section
1.5 of the Acquisition Agreement (for such purpose, this Agreement
shall
replace the “CEO Employment
Agreement”).
|
| (d) |
Notwithstanding
anything to the contrary set forth in this Agreement, except as provided
in the third and fourth sentences of Section 16(c) hereof, the rights
and
obligations of the Executive and the Employer under the Acquisition
Agreement (including without limitations Sections 1.5(c), 4.3 and
4.8
thereof) shall remain unmodified and in full force and
effect.
|
| (e) |
This
Agreement may be amended or modified only by a written instrument
executed
by both the Employer and the
Executive.
|
| (f) |
This
Agreement shall be construed, interpreted and enforced in accordance
with
the laws of the State of Delaware, without regard to its conflict
of laws
principles.
|
| (g) |
Any
controversy or claim arising out of or relating to this Agreement
or the
employment relationship between the Executive and the Employer shall
be
submitted to arbitration under the auspices of the American Arbitration
Association in accordance with its Commercial Dispute Resolution
Procedures and Rules and at its office in Wilmington, Delaware. The
award
of the arbitrator shall be final and binding upon the parties, and
judgment may be entered with respect to such award in any court of
competent jurisdiction. Notwithstanding the foregoing, any controversy
or
claim arising out of or relating to any claim by the Employer for
temporary or preliminary relief with respect to Section 8 or 9 of
this
Agreement need not be resolved in arbitration and may be resolved
in
accordance with Section 10 of this Agreement. The Executive acknowledges
that this agreement to submit to arbitration includes all controversies
or
claims of any kind (e.g., whether in contract or in tort, statutory
or
common law, legal or equitable) now existing or hereafter arising
under
any federal, state, local or foreign law, including, but not limited
to,
the Age Discrimination in Employment Act, Title VII of the Civil
Rights
Act of 1964, the Civil Rights Act of 1866, the Family and Medical
Leave
Act, the Employee Retirement Income Security Act, and the Americans
with
Disabilities Act, and all similar state laws, and the Executive hereby
waives all rights thereunder to have a judicial tribunal resolve
such
claims. In the event of any arbitral or legal proceeding between
the
parties hereto with respect to the subject matter of this Agreement,
the
party substantially prevailing in any such proceeding shall be entitled
to
an award from the other party of all legal fees and expenses reasonably
incurred in connection with such proceeding. The Employer and the
Executive hereby agree that any such payments shall be excluded from,
and
have no effect on, any calculation of EBIT under the Acquisition
Agreement
but not under any plan or program governing the calculation of the
Special
Bonus Plan.
|
| (h) |
This
Agreement shall be binding upon and inure to the benefit of both
parties
and their respective successors and assigns; provided,
however,
that (i) the obligations of the Executive are personal and shall
not be
assigned or delegated by the Executive and (ii) the Employer will
require
any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of its business
and/or assets to assume expressly and agree to perform this Agreement
in
the same manner and to the same extent that the Employer would be
required
to perform it if no such succession had taken place.
|
| (i) |
No
delays or omission by the Employer or the Executive 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 Employer or the Executive
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.
|
| (j) |
The
captions appearing in 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.
|
| (k) |
In
case any provision of this Agreement shall be held by a court with
jurisdiction over the parties to this Agreement to be invalid, illegal
or
otherwise unenforceable, the validity, legality and enforceability
of the
remaining provisions shall in no way be affected or impaired
thereby.
|
[Signature
Page Follows]
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the day and year first above
written.
INVENTIV
HEALTH, INC.
By:
/s/ Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Chairman and Chief Executive Officer
/s/
R. Xxxxx Xxxxxx
Name:
R.
Xxxxx Xxxxxx
For
purposes of Sections 16(c) and (d) only:
INCHORD
HOLDING CORPORATION
By:/s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
President
