Exhibit 10.7
EMPLOYMENT AGREEMENT
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Employment Agreement, dated the 9th day of June, 1997 by and between
Xxxxxxx X. XxXxxxxx (the "Employee") and Boron, XxXxxx & Associates, Inc., a
Delaware corporation (the "Company"). In consideration of the mutual promises
and covenants herein contained, the parties hereto agree as follows:
1. Employment.
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Subject to the provisions of Section 6, the Company hereby employs the
Employee and the Employee accepts such employment upon the terms and conditions
hereinafter set forth.
2. Terms of Employment.
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Subject to the provisions of Section 6, the term of the Employee's
employment pursuant to this Agreement shall commence on and as of the date
hereof (the "Effective Date") and shall terminate on the second anniversary of
the Effective Date; provided, however, that this Agreement shall be extended
automatically for successive one-year periods ending on the relevant anniversary
of Effective Date unless either party gives the other notice no later than 270
days prior to the scheduled termination date (i.e., the second anniversary of
the Effective Date or any later anniversary) of his or its determination not to
extend this Agreement, whereupon it shall terminate as of such anniversary date.
The period during which the Employee serves as an employee of the Company in
accordance with and subject to the provisions of this Agreement is referred to
in this Agreement as the "Term of Employment." Notwithstanding the foregoing,
this Agreement is contingent on the permanent relocation of the Employee to the
greater New York Metropolitan area no later than October 1, 1997. If the
relocation does not occur by such date, this Agreement shall be null and void.
3. Duties.
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During the Term of Employment, the Employee (a) shall serve as an
employee of the Company with the titles of Senior Vice President - BLP Group
Companies, and President -BLA, reporting to the Chief Executive Officer of the
Company, and shall perform such duties and have such responsibilities and shall
have such additional or alternative duties as may be reasonably determined by
the Chief Executive Officer of the Company, consistent with the general area of
the Employee's experience and skills, (b) upon the request of the Board of
Directors of the Company, shall serve as an officer and/or director of the
Company's subsidiaries, and (c) shall render all services reasonably incident to
the foregoing. The Employee hereby accepts such employment, agrees to serve the
Company in the capacities indicated, and agrees to use his best efforts in, and
shall devote his full working time, attention, skill and energies to, the
advancement of the interests of the Company and its subsidiaries and the
performance of his duties and responsibilities hereunder.
4. Salary and Bonus.
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(a) During the Term of Employment, the Company shall pay the
Employee a salary at the annual rate of $200,000 per annum (the "Base Salary").
Such Base Salary shall be subject to withholding under applicable law, shall be
pro rated for partial years and shall be payable in periodic installments not
less frequently than monthly in accordance with the Company's usual practice for
executives of the Company as in effect from time to time. The Board of Directors
or Compensation Committee of the Company shall review the Base Salary of the
Employee at least annually, but such salary shall not be set at a rate lower
than $200,000 per annum.
(b) Bonus. During the Term of Employment, the Employee shall be
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entitled to participate in such executive bonus program as may be established by
the Company and then in effect, subject to and in accordance with the terms
thereof. Notwithstanding the foregoing, the Employee shall be entitled to a
bonus of an amount not less than $100,000 in respect of the 1997 calendar year,
payable not later than January 15, 1998 and subject to Section 6 hereof.
(c) Relocation Bonus. The Company shall provide the Employee,
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upon his relocation to the greater New York Metropolitan area, a one-time bonus
of $75,000 to cover his relocation expenses, payable upon relocation.
5. Benefits.
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(a) During the Term of Employment, the Employee shall be entitled
to participate in any and all medical, pension, dental and life insurance plans
and disability income plans, stock incentive plans, retirement arrangements and
other employment benefits as in effect from time to time for executive officers
of the Company generally. Such participation shall be subject to (i) the terms
of the applicable plan documents (including, as applicable, provisions granting
discretion to the Board of Directors of the Company or any administrative or
other committee provided for therein or contemplated thereby) and (ii) generally
applicable policies of the Company.
(b) The Company shall promptly reimburse the Employee for all
reasonable business expenses incurred by the Employee during the Term of
Employment in accordance with the Company's practices for executive officers of
the Company with a similar level of responsibility, as in effect from time to
time; provided, however, that expenses for the New York apartment and the
Employee's present executive assistant shall no longer be paid by the Company
after October 1, 1997.
(c) During the term of Employment, the Employee shall receive
paid vacation annually in accordance with the Company's practices for executive
officers, as in effect from time to time, but in any event not less than four
(4) weeks per calendar year.
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(d) Compliance with the provisions of this Section 5 shall in no
way create or be deemed to create any obligation, express or implied, on the
part of the Company or any of its affiliates with respect to the continuation of
any particular benefit or other plan or arrangement maintained by them or their
subsidiaries as of or prior to the date hereof or the creation and maintenance
of any particular benefit or other plan or arrangement at any time after the
date hereof.
6. Termination of Employment of the Employee.
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Prior to the expiration of the Term of Employment as provided in
Section 2 hereof, this Agreement may or shall (as applicable) be terminated as
follows:
(a) At any time by the mutual consent of the Employee and the
Company.
(b) At any time for "cause" by the Company upon written notice to
the Employee. For purposes of this Agreement, a termination shall be
for "cause" if:
(i) the Employee shall commit an act of fraud, embezzlement,
misappropriation or breach of fiduciary duty against the Company or
any of its subsidiaries, or shall be convicted by a court of
competent jurisdiction of, or shall plead guilty or nolo contendere
to, any felony or any crime involving moral turpitude; or
(ii) the Employee shall commit a breach of any of the
covenants, terms or provisions hereof, which breach has not been
remedied within thirty (30) days after delivery to the Employee by
the Company of written notice of the facts constituting the breach;
or
(iii) the Employee shall have failed to comply with written
instructions from the Company's Chief Executive Officer, which are
reasonable and consistent with Section 3, or shall have substantially
failed to perform the Employee's duties hereunder for a period of
thirty (30) days after written notice from the Company.
Upon termination for cause as provided in this Section 6(b), (A) all
obligations of the Company under this Agreement shall thereupon immediately
terminate other than any obligation of the Company with respect to earned but
unpaid Base Salary and benefits contemplated hereby to the extent then accrued
or vested, it being understood that upon any such termination (1) the Employee
shall not be entitled to receive any bonus or portion thereof from the Company
or any of its affiliates not then paid whether pursuant to Section 4 or
otherwise or (2) any continuation of benefits except as may be required by law,
(B) the Company shall have any and all rights and remedies under this Agreement
and applicable law.
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(c) Upon the death of the Employee or upon the permanent disability (as
defined below) of the Employee continuing for a period in excess of one hundred
eighty (180) consecutive days. Upon any such termination of the Employee's
employment as provided in this Section 6(c), all obligations of the Company
under this Agreement shall thereupon immediately terminate other than (i) any
obligation of the Company with respect to earned but unpaid Base Salary and
benefits contemplated hereby to the extent accrued or vested through the date of
termination and (ii) the obligation of the Company to pay the Employee or his
estate cash bonuses earned pursuant to Section 4(b) and, if earned as of the
date of termination, Section 4(c). As used herein, the terms "permanent
disability" or "permanently disabled" shall mean the inability of the Employee,
by reason of injury, illness or other similar cause, to perform a major part of
his duties and responsibilities in connection with the conduct of the business
and affairs of the Company, as determined reasonably and in good faith by the
Company.
(d) By the Employee on such at least 60 day prior written notice to the
Company. Upon termination by the Employee as provided in this Section 6(d), all
obligations of the Company under this Agreement thereupon immediately shall
terminate other than any obligation of the Company with respect to earned but
unpaid Base Salary and benefits contemplated hereby to the extent accrued or
vested through the date of termination, it being understood that in the event of
such a termination the Employee shall not be entitled to receive any bonus from
the Company or any of its affiliates not then paid whether pursuant to Section 4
or otherwise with respect to any period during or after the Term of Employment
or any continuation of benefits except to the extent required by law.
(e) At any time without "cause" (as defined in Section 6(b)) by
the Company upon written notice to the Employee. In the event of termination of
the Employee by the Company pursuant to this Section 6(e) the Company shall
continue to make Base Salary payments and benefits to the Employee in the manner
contemplated by Section 4(a) from the date of termination through (i) the later
of the second anniversary of the Effective Date hereof or the first anniversary
of the date on which such termination occurs, if such termination occurs on or
before the second anniversary of the Effective Date, or (ii) the first
anniversary of the date on which such termination occurs, if such termination
occurs after the second anniversary of the Effective Date, the Company shall
remain obligated to pay the bonuses contemplated by Section 4(b) and, if earned
as of the date of termination, 4(c), when and as it otherwise would have paid
such bonuses, with such amounts agreed by the parties hereto to be in full
satisfaction, compromise and release of any claims arising out of any
termination of the Employee's employee arising out of any termination of the
Employee's employment pursuant to this Section 6(e) or Section 6(f), and in
either case with such amounts to be contingent upon the Employee's delivery of a
general release upon termination of employment in a form reasonably satisfactory
to the Company, it being understood that no severance benefits shall be provided
unless and until the Employee determines to execute and deliver such release and
that, in the case of a termination pursuant to
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Section 6(f), such release shall not cover the matter which is the subject of
the material default giving rise to such termination.
(f) The Employee shall have the right to terminate his employment
hereunder in the event of a material default by the Company in the performance
of its obligations hereunder, after the Employee has given written notice to the
Company specifying such default by the Company and giving the Company a
reasonable time, not less than 30 days, to conform its performance to its
obligations hereunder. The rights and obligations of the parties shall be as set
forth in Section 6(e) in the event of any such termination.
(g) In the event either party gives a notice of non-renewal to be
effective as of any anniversary hereof as contemplated by Section 2, then all
obligations of the parties hereunder shall terminate as of the end of the Term
of Employment except as contemplated by Sections 7 and 8 hereof.
7. Confidentiality; Proprietary Rights.
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(a) In the course of performing services hereunder, on behalf of
the Company (for purposes of this Section 7 including all predecessors of the
Company) and its affiliates, the Employee has had and from time to time will
have access to confidential records, data, customer lists, trade secrets and
other confidential information owned or used in the course of business by the
Company and its affiliates (the 'Confidential Information"). The Employee agrees
(a) to hold the Confidential Information in strict confidence, (b) not to
disclose the Confidential Information to any person (other than in the regular
business of the Company or its affiliates), and (c) not to use, directly or
indirectly, any of the Confidential Information for any competitive or
commercial purpose other than-on behalf of the Company and its affiliates;
provided, however, that the limitations set forth above shall not apply to any
Confidential Information which (i) is then generally known to the public; (ii)
became or becomes generally known to the public through no fault of the
Employee; or (iii) is disclosed in accordance with an order of a court of
competent jurisdiction or applicable law. Upon the termination of the Employee's
employment with the Company for any reason, all Confidential Information
(including, without limitation, all data, memoranda, customer lists, notes,
programs and other papers and items, and reproductions thereof relating to the
foregoing matters) in the Employee's possession or control, shall be immediately
returned to the Company or the applicable affiliate and remain in its or their
possession.
(b) The Employee recognizes that the Company and its affiliates
possess a proprietary interest in all of the information described in Section
7(a), subject to the provisions and limitations thereof, and have the exclusive
right and privilege to use, protect by copyright, patent or trademark, or
otherwise exploit the processes, ideas and concepts described therein to the
exclusion of the Employee, except as otherwise agreed between the Company and
the Employee in writing. The Employee expressly agrees that any products,
inventions, discoveries or improvements made by the Employee or his agents or
affiliates in the course of
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the Employee's employment, including any of the foregoing which is based on or
arises out of the information described in Section 7 (a), shall be the property
of and inure to the exclusive benefit of the Company. The Employee further
agrees that any and all products, inventions, discoveries or improvements
developed by the Employee (whether or not able to be protected by copyright,
patent or trademark) during the course of his employment, or involving the use
of the time, materials or other resources of the Company or any of its
affiliates, shall be promptly disclosed to the Company and shall become the
exclusive property of the Company, and the Employee shall execute and deliver
any and all documents necessary or appropriate to implement the foregoing.
(c) The Employee agrees, while he is employed by the Company, to
offer or otherwise make known or available to it, as directed by the Chief
Executive Officer of the Company and without additional compensation or
consideration, any business prospects, contracts or other business opportunities
that he may discover, find, develop or otherwise have available to him in any
field in which the Company or its affiliates are engaged, and further agrees
that any such prospects, contacts or other business opportunities shall be the
property of the Company.
8. Non-Competition.
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In view of the fact that any activity of the Employee in violation of
the terms hereof would deprive the Company and its subsidiaries), if any, of the
benefits of their bargain under this Agreement, as a material inducement to and
a condition precedent of the Company's payment obligations hereunder and the
other covenants set forth herein, and to preserve the goodwill associated with
the Boron, XxXxxx business, the Employee hereby agrees that during the Term of
Employment and thereafter (a) for a period of one year following the termination
of the Employee's employment with the Company in the event such termination
occurs by or under the circumstances contemplated by Section 6(e) or 6(f) or (b)
for a period ending on the later of the second anniversary of the Effective Date
or the date which is one year following the termination of the Employee's
employment with the Company for any other reason, regardless of the
circumstances of termination, he will not, without the express written consent
of the Company, directly or indirectly, anywhere in the United States, engage in
any activity which is, or participate or invest in, or provide or facilitate the
provision of financing to, or assist (whether as owner, part-owner, shareholder,
partner, director, officer, trustee, employee, agent or consultant, or in any
other capacity), any business, organization or person other than the Company (or
any affiliate of the Company), whose business, activities, products or services
are competitive with any of the business, activities, products or services
conducted or offered by the Company and its subsidiaries at the time of the
termination of Employee's employment with the Company, which business,
activities, products and services shall include in any event peer influence
meetings, telemarketing activities, contract sales and outsource marketing
involving pharmaceutical and healthcare companies. Without implied limitation,
the forgoing covenant shall include hiring or engaging or attempting to hire or
engage for or on behalf of himself or any such competitor, any officer or
employee of the Company or any of its direct and/or indirect subsidiaries,
encouraging for or on behalf of himself or any such
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competitor, any such officer or employee to terminate his or her relationship or
employment with the Company or any of its direct or indirect subsidiaries,
soliciting for or on behalf of himself or any such competitor any client of the
Company or any of its direct or indirect subsidiaries and diverting to any
person (as defined in Section 11) any client or business opportunity of the
Company or any of any of its direct or indirect subsidiaries.
Notwithstanding anything herein to the contrary, the Employee may make
passive investments in any enterprise the shares of which are publicly traded if
such investment constitutes less than five (5%) percent of the equity of such
enterprise.
The Employee acknowledges that neither the Employee nor any business entity
controlled by him is a party to any contract, commitment, arrangement or
agreement which could, following the date hereof, restrain or restrict the
Company or any subsidiary or affiliate of the Company from carrying on its
business or restrain or restrict the Employee from performing his obligations
under this Agreement and as of the date of this Agreement the Employee has no
business interests in or relating to the pharmaceutical industry whatsoever
other than his interest in the Company, other than interests in public companies
of less than five (5%) percent.
9. Specific Performance; Severability.
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It is specifically understood and agreed that any breach of the
provisions of Section 7 or 8 hereof by the Employee is likely to result in
irreparable injury to the Company and/or its affiliates, that the remedy at law
alone will be an inadequate remedy for such breach and that, in addition to any
other remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Employee and to seek both temporary and
permanent injunctive relief (to the extent permitted by law), without the
necessity of posting a bond or proving actual damages. In case any of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, any such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had been limited or modified (consistent with its
general intent) to the extent necessary to make it valid, legal and enforceable,
or if its shall not be possible to so limit or modify such invalid, illegal or
unenforceable provision or part of a provision, this Agreement shall be
construed as if such invalid, illegal or unenforceable provision or part of a
provision had never been contained in this Agreement.
10. Notices.
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All notices, requests, demands and other communications hereunder
shall be in writing and shall be deem to have been duly given if faxed (with
transmission acknowledgment received), delivered personally or mailed by
certified or registered mail (return receipt requested) as follows:
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To the Company: Boron, XxXxxx & Associates, Inc.
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. XxXxxx, President and CEO
To the Employee: Xxxxxxx X. XxXxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
or to such other address or fax number of which any party may notify the other
parties as provided above. Notices shall be effective as of the date of such
delivery, mailing or fax.
11. Miscellaneous.
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This Agreement shall be governed by and construed under the laws of
the State of New Jersey, and shall not be amended, modified or discharged in
whole or in part except by an agreement in writing signed by both of the parties
hereto. The failure of either of the parties to require the performance of a
term or obligation or to exercise any right under this Agreement or the waiver
of any breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. This Agreement shall inure to the
benefit of, and be binding upon and assignable to, successors of the Company by
way of merger, consolidation or sale and may not be assigned by the Employee.
This Agreement together with concurrently executed restricted stock and option
agreements supersede, terminate and in all respects replace all prior
understandings and agreements, written or oral between the parties relating to
the subject matter hereof. For purposes of this Agreement, the term "person"
means an individual, corporation, partnership, association, trust or any
unincorporated organization; a "subsidiary" of a person means any corporation
more than 50 percent of whose outstanding voting securities, or any partnership,
joint venture or other entity more than 50 percent of whose total equity
interest, is directly or indirectly owned by such person; and an "affiliate" of
a person shall mean, with respect to a person or entity, any person or entity
which directly or indirectly controls, is controlled by, or is under common
control with such person or entity.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first set forth above.
BORON, XxXXXX & ASSOCIATES, INC.
By:
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Xxxxxxx X. XxXxxx, President
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XXXXXXX X. XxXXXXXX
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