EXHIBIT 10.3(A)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the fifth day of August, 1998 BETWEEN:
(1) PHARMACEUTICAL MARKETING SERVICES INC. (hereinafter the "Company" or
"PMSI"), a Delaware Corporation with offices at 00 Xxxxxxxxxxx Xxxxx, Xxxxx 000,
Xxx Xxxx, Xxx Xxxx; and
(2) XXXXXX X. X. XXXXXX, an individual residing at 00 Xxxxxxx Xxxxxxx, Xxxxxx
XX0 0XX, Xxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, Executive served continuously as Chief Executive Officer of
Xxxxx International Inc. ("Xxxxx"), the predecessor-in-interest to the Company,
from June 1988 until the carve-out of the Company from Xxxxx in December 1991;
and as Chief Executive Officer of the Company thereafter pursuant to a Support
Service Agreements between the Company and Xxxxx and between the Company and
Source Informatics Inc. ("Source") after its spin-off by Xxxxx on April 16, 1996
(the "Spin-Off"); and
WHEREAS, pursuant to various agreements fully described in the
Company's Proxy Statement dated 14 November 1997, Source was sold to National
Data Corporation in a three party transaction to which the Company was a party,
effective on December 15, 1997 (the "Source Sale"); and
WHEREAS, effective as of the Source Sale, the Executive was asked by
the Board of Directors of the Company to continue to serve as its Chief
Executive Officer; and
WHEREAS, on August 5, 1998 the Company sold substantially all of its
assets and business outside the United States to a third party; and
WHEREAS, the Company wishes to assure itself of the continued
availability of the services of the Executive in the capacity of Chief Executive
Officer and to that end desires to enter into an employment agreement with
Executive upon the terms and conditions set forth herein; and
WHEREAS, Executive is willing to enter into such an employment
agreement under the terms and conditions stated hereinafter.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein set forth, the parties hereto mutually covenant and agree as follows:
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1. COMMENCEMENT AND TERM
1.1 The Company shall employ Executive in the capacity of Chief Executive
Officer under and subject to the terms and conditions set forth in this
Agreement.
1.2 Executive's employment with the Company commenced on December 21, 1991
but, for purposes of determining Executive's length of service,
Executive shall be credited with his continuous employment from January
1, 1987 with Pharminfo Advisors Limited, (which became a subsidiary of
Xxxxx, on June 23, 1988) and subsequently with Source Informatics Inc.
until the Source Sale and the concurrent commencement of Executive's
direct employment by the Company pursuant to this Agreement.
1.3 The employment of Executive shall (subject to the provisions of Clauses
1 and 10) be for an indefinite term, provided that the employment of
Executive may be terminated by the Company or Executive at any time in
accordance with Clause 10 hereinafter.
2. OBLIGATIONS DURING EMPLOYMENT
2.1 The Executive shall during the continuance of his employment:
2.1.1 Serve the Company to the best of his ability in the capacity
of Chief Executive Officer;
2.1.2 Faithfully and diligently perform such duties and exercise
such powers consistent with his office, subject to the
direction of the Board of Directors;
2.1.3 Do all in his power to protect, promote, develop, and extend
the business interests and reputation of the Company;
2.1.4 At all times and in all respects conform to and comply with
the lawful and reasonable directions of the Board of Directors
including all authority levels and procedures from time to
time specified by the Board of Directors;
2.1.5 Perform such related duties with respect to the business and
operations of the Company and the Associated Companies which
from time to time require Executive's presence outside the
United Kingdom;
2.1.6 Promptly give to the Board of Directors (in writing if so
requested) all such information, explanations and assistance
as it may require in connection with the business and affairs
of the Company and any Associated Company;
2.1.7 If and so long as the Board of Directors so directs, perform
and exercise the said duties and powers on behalf of any
Associated Company;
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2.1.8 Provide to the Associated Companies responsible for doing the
Business of the Company in the Territory, in his capacity as
Chief Executive Officer, executive services in the planning,
organization, management and control of that business. In this
regard, meet with management of the Associated Companies in
the Territory to:
(i) analyze and appraise the operations and performance
of the PMSI Group and the PMSI Group management in
the Territory to determine compliance with long-range
goals, plans and programs;
(ii) advise and consult on trends in the pharmaceutical
and healthcare industries and participate in the
formulation of plans and business goals for the
individual Operating Companies and the PMSI Group;
(iii) advise and assist in the development of an effective
organization in the staffing and management of the
employees of the business; and
(iv) direct the development and monitoring of plans to
implement new business opportunities, including
acquisitions, mergers, new produce start-ups and
developments;
2.1.9 Unless prevented by sickness, injury or other incapacity, or
as specified in Clause 16.5 hereinafter, or as otherwise
agreed by the Board of Directors, work under the terms of this
Agreement for a period of up to one hundred forty (140) days
per year and, during said period, devote the appropriate and
necessary time and attention during his hours of work (which
shall be normal business hours and such additional hours as
may be necessary for the proper performance of his duties) to
the performance of his duties and the business and affairs of
the Company and any Associated Company for which he is
required to perform duties; provided, however, that, Executive
shall not be required to spend more than one hundred ten (110)
days (as 'days' are defined for tax residency by the Internal
Revenue Service Code) in the United States in any calendar
year; and
2.1.10 Travel from time to time as may be required in connection with
the business of the Company and any Associated Company for
which he is required to perform duties; provided, however,
that Executive shall not be required, without his written
consent to (i) relocate from his principal residence in
London, England to perform services under this Agreement or
(ii) perform any services or duties whatsoever under this
Agreement in the United Kingdom.
3. RENUMERATION
3.1 The Company shall pay to the Executive during the continuance of his
employment a salary (which shall accrue from day to day) at the rate
of two hundred fifty thousand dollars ($250,000) per annum. The salary
shall be payable in equal monthly installments in arrears or as
otherwise determined by the Company on a company-wide basis.
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3.2 As further remuneration the Executive shall be entitled to an annual
bonus based upon the achievement of performance criteria established by
the Board of Directors. The amount of the bonus for the achievement of
100% of targeted performance will be 75 % of the Executive's then
annual base salary and will be prorated as determined by the Board for
any shortfall in achieving agreed objectives.
3.3 The salary and bonus shall be reviewed from time to time and the rates
thereof may be increased by the Company with effect from any such
review date.
4. INSURANCE, PENSION SCHEME AND OTHER BENEFITS
4.1 At all times during the term of this Agreement, the Company shall
provide Executive, and where appropriate his dependents, with insurance
(including accidental death insurance, medical and dental expense
insurance, permanent health and disability insurance, and travel
insurance), pension benefits as hereinafter described, and such other
benefits of the Company enjoyed by or made available to other senior
executive officers of the Company to the extent that the Executive
qualifies under the eligibility provisions of any such plan or scheme,
as presently in effect or as they may be modified from time to time.
4.2 The Company shall make regular monthly payments into a pension plan
established by the Company for the benefit of Executive in an amount
each year of not less than fifteen percent (15 %) of the Executive's
aggregate annual cash compensation. In the event that, at the date of
execution of this Agreement, Executive's pension has not been fully
funded from January 1, 1991, as aforesaid, the Company shall make
payments into the pension plan, in such amounts as to ensure that said
pension is fully funded on or before December 31, 1998.
4.3 At all times during the term of this Agreement, the Company, acting
either directly or through an Associated Company, shall maintain in
force a life insurance policy on behalf of Executive in the amount of
$1,000,000, the beneficiaries of which will be designated by Executive.
5. EXPENSES
5.1 The Company shall during the continuance of Executive's employment
reimburse him all reasonable and appropriate travel and accommodations
(which shall include first class air travel), entertainment and other
similar out-of-pocket expenses actually incurred or expended by him in
the performance of his duties hereunder. Such reimbursement shall
include membership fees in the Lotos Club or another similar private
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club providing temporary residential accommodations during visits to
New York, on the basis that such club is utilized primarily for
company-related matters.
5.2 Except where specified to the contrary, all expenses shall be
reimbursed on a monthly basis subject to the Executive providing
appropriate evidence (including receipts, invoices, tickets and/or
vouchers as may be appropriate) of the expenditure in respect for which
he claims reimbursement.
6. VACATIONS AND HOLIDAYS
6.1 The Executive shall (in addition to the usual public holidays) be
entitled during the continuance of his employment to eighteen (18)
working days' paid vacation in each calendar year.
6.2 Except in circumstances approved by the Board, the Executive shall not
be permitted to carry forward accumulated, unused vacation entitlement
in excess of eighteen (18) days from one calendar year to the next.
6.3 Upon the termination of his employment for any reason, the Executive's
entitlement to accrued vacation pay (which accrues at the rate of one
and one half (1 1/2) days per month) shall be calculated on a pro rata
basis in respect of each completed month of service in the vacation
year in which his employment terminates which shall be added any
vacation carryover entitlement accumulated in the previous year
pursuant to Clause 6.2 above, and the appropriate amount shall be paid
to the Executive; provided that if the Executive shall have taken more
days' vacation than his accrued entitlement the Company is hereby
authorized to make an appropriate deduction from the Executive's final
salary payment.
7. INCAPACITY
7.1 Subject to his compliance with the Company's procedures relating to the
notification and certification of periods of absence from work, the
Executive shall continue to be paid his salary and all other emoluments
specified in Clauses 3, 4 and 5 hereinabove (inclusive of any statutory
sick pay or social security benefits to which he may be entitled)
during any periods of absence from work due to sickness, injury or
other incapacity for a minimum of 26 weeks in aggregate in any period
of 52 consecutive weeks.
7.2 If the Executive shall have been absent from work due to sickness,
injury or other incapacity for a continuous period of 26 weeks or more,
the Company shall have the right to terminate his employment pursuant
to Clause 10.4 hereinafter and, in such event, Executive shall receive
such benefits (if any) as are available to him under the terms of the
applicable plan referred to in Clause 4.1 and the other benefits
specified in Clause 10.4.
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8. INTELLECTUAL PROPERTY
8.1 Subject to applicable law, if at any time in the course of his
employment, the Executive makes or discovers or participates in the
making or discovery of any Intellectual Property relating to or capable
of being used in the business of the Company or any Associated Company
he shall immediately disclose full details of such Intellectual
Property to the Company and at the request and expense of the Company
he shall do all things which may be necessary or desirable for
obtaining appropriate forms of protection for the Intellectual Property
in such parts of the world as may be specified by the Company and for
vesting all rights in the same in the Company or its nominee.
8.2 The Executive hereby irrevocably appoints the Company to be his
attorney in his name and on his behalf to sign execute or do any
instrument or thing and generally to use his name for the purpose of
giving to the Company or its nominee the full benefit of the provisions
of this Clause and in favor of any third party a certificate in writing
signed by any director or the secretary of the Company that any
instrument or act falls within the authority conferred by this Clause
shall be conclusive evidence that such is the case.
8.3 All rights and obligations under this Clause 8 in respect of
Intellectual Property made or discovered by the Executive during his
employment shall continue in full and force and effect after the
termination of his employment and shall be binding upon the Executive's
personal representatives.
9. CONFIDENTIALITY
9.1 The Executive shall not (other than in the proper performance of his
duties or without the prior written consent of the Company or unless
ordered by a court of competent jurisdiction) at any time either during
the continuance of his employment or after its termination disclose or
communicate to any person or use for his own benefit or the benefit of
any person other than the Company or any Associated Company any
confidential information relating to the Company or any Associated
Company which may come to his knowledge in the course of his employment
and the Executive shall during the continuance of his employment use
his best endeavors to prevent the unauthorized publication or misuse of
any confidential information provided that such restrictions shall
cease to apply to any confidential information which may enter the
public domain other than through the default of the Executive.
9.2 All notes and memoranda of any trade secret or confidential information
concerning the business the Company and the Associated Companies or any
of its or their suppliers, agents, distributors, clients, customers or
others which shall have been acquired, received, or made by the
Executive during the course of his employment shall be the property of
the Company and shall be surrendered by the Executive to someone duly
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authorized in that behalf at the termination of his employment or at
the request of the Board of Directors at any time during the course of
his Employment.
10. TERMINATION OF EMPLOYMENT
10.1 Termination by the Company Without Cause; Termination by the Executive
for Good Reason. The Company may terminate the employment of the
Executive at any time without Cause by giving the Executive a Notice of
Termination in accordance with Clause 14.2 hereof at least 24 months
prior to the effective date of such termination specified in such
notice. The executive may terminate his employment by the Company at
any time for Good Reason by giving a Notice of Termination to the
Company in accordance with Clause 14.2 hereof, and the effective date
of such termination shall be determined in accordance with Clause
10.1.3.
10.1.1 Except as provided in Clause 10.1.2, in the event that the
Executive's employment is terminated by the Company Without
Cause:
(a) the Company shall pay to the Executive, within 30 days after
the Notice of Termination is given, a lump-sum cash amount
equal to (i) two times the sum of (A) his then current annual
salary under Clause 3 and (B) 75 % of his then current annual
salary under Clause 3 (representing his annual bonus for the
achievement of 100% of performance objectives, irrespective of
whether performance objectives have been achieved), plus (ii)
an additional amount of salary equal to all of the ----
Executive's accrued unused vacation entitlement up to a
maximum of thirty six (36) days; plus (iii) the cash
equivalent of all emoluments specified hereinabove ----
(except those the Company shall continue to provide pursuant
to Clause 10.1.2(b) during the period of twenty four (24)
months following the effective date of such termination); plus
(iv) a bonus for the then current year equal to 75% of his
then current annual salary under Clause 3 (irrespective of
whether performance objectives have been achieved); provided,
however, that in the event of a termination for Good Reason
pursuant to Clause 16.1.8(b), the annual salary used for
computation under this Clause 10.1.1 (a) shall be the one in
effect prior to the reduction referred to in Clause 16.1.8(b).
Executive shall have the right to request and receive the
aggregate lump sum payment comprising subclauses (i), (ii),
(iii) and (iv) hereinabove in installments designated by
Executive paid over the calendar year of the effective date of
termination and the subsequent two calendar years;
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(b) for a period of twenty four (24) months after the effective
date of such termina tion, the Company shall provide the
Executive with pension contributions, life, health, accidental
death, disability and other insurance benefits for the
Executive and his dependents under the Benefit Plans and such
other benefits as are set out in Clauses 4 and 5, at the
respective levels of coverage in effect at the time the Notice
of Termination is given, or the cash equivalents of the
foregoing for the twenty- four month period (less any
contribution to such benefits plans made through a payroll
deduction charged to the Executive immediately prior to such
effective date in respect of any such benefits);
(c) if requested by Executive, the Company shall take all actions
necessary to transfer, if contractually permitted, all life
insurance policies to the Executive or his designee to enable
Executive and his family and/or beneficiaries to receive, at
their own expense, the benefits thereof after the expiration
of the thirty six (36) month period referred to in subclause
(b) above;
(d) the Company shall vest as of the effective date of termination
pursuant to this Clause 10.1.1 all options granted to the
Executive under the Stock Option Plan and allow the Executive
a period ending two years after the effective date of the
termination of his employment within which to exercise such
options.
10.1.2 Notwithstanding the other provisions of this Clause 10.1, in
the event that (x) the Company terminates the Executive's
employment Without Cause in anticipation of, or pursuant to, a
Notice of Termination delivered to the Executive within two
years after a Change in Control, or (y) the Executive
terminates his employment for any reason (other than due to
his death or disability, as defined below) within two years
after a Change in Control:
(a) the Company shall pay to the Executive, within 30 days after
the Notice of Termination is given, a lump-sum cash amount
equal to (i) three times the sum of (A) his then current
annual salary under Clause 3 and (B) 75% of his then current
annual salary under Clause 3 (representing his annual bonus
for the achievement of 100% of performance objectives,
irrespective of whether performance objectives have been
achieved), plus (ii) an additional amount of salary equal to
all of the Executive's accrued unused vacation entitlement up
to a maximum of thirty six (36) days; plus (iii) the cash
equivalent of all emoluments specified herein above (except
those the Company shall continue to provide pursuant to Clause
10.1.2(b) during the period of thirty six (36) months
following the effective date of such termination; plus (iv) a
bonus for the then current year equal to 75% of his then
current annual salary under Clause 3 (irrespective of whether
performance objectives have been achieved); provided, however,
that in the event of a termination for Good Reason pursuant to
Clause 16.1.8(b), the annual used for computation under this
(Clause 10.1.2(a) shall be the one in effect prior to the
reduction referred to in Clause 16.1.8(b). Executive shall
have the right to request and receive the aggregate lump sum
payment comprising subclauses (i), (ii), (iii) and (iv)
hereinabove in installments designated by Executive paid over
the calendar year of the effective date of termination and the
subsequent two calendar years;
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(b) for a period of thirty six (36) months after the effective
date of such termination, the Company shall provide the
Executive with pension contributions, life, health, accidental
death, disability and other insurance benefits for the
Executive and his dependents under the Benefit Plans and such
other benefits as are set out in Clauses 4 and 5, at the
respective levels of coverage in effect at the time the Notice
of Termination is given, or the cash equivalents of the
foregoing for the thirty-six month period (less any
contribution to such benefits plans made through a payroll
deduction charged to the Executive immediately prior to such
effective date in respect of any such benefits);
(c) if requested by Executive, the Company shall take all actions
necessary to transfer, if contractually permitted, all life
insurance policies to the Executive or his designee to enable
Executive and his family and/or beneficiaries to receive, at
their own expense, the benefits thereof after the expiration
of the thirty six (36) month period referred to in subclause
(b) above;
(d) the Company shall vest as of the time of such Change in
Control all options granted to the Executive under the Stock
Option Plan and allow the Executive a period ending two years
after the effective date of the termination of his employment
within which to exercise such options.
10.1.3 Except as provided in Clause 10.1.2 pursuant to a Change in
Control, in the event that the Executive terminates his
employment for Good Reason, he shall have the rights and
receive the benefits to which he would be entitled if the
Company had terminated his employment without Cause under
Section 10.1.1. The effective date of the Executive's
termination of his employment pursuant to this Clause 10.1.3
shall be the date that would have been the effective date had
the Company terminated the Executive without cause pursuant to
Clause 10.1 on the same date.
10.2 Termination by the Company for Cause: Termination by the Executive
Without Good Reason. The Company may at any time terminate the
Executive's employment for Cause by giving the Executive a Notice of
Termination in accordance with Clause 14.2 and, if applicable, after
complying with Clause 16.1.5 hereof. The Executive may at any time
terminate his employment with the Company in accordance with Clause
14.2 hereof by giving notice at least 12 months prior to the effective
date of such termination specified in such notice. In the event of a
termination by the Company for Cause or by the Executive without Good
Reason (except in the case where the Executive so terminates his
employment within two years after a Change in Control, as provided in
Clause 10.1.2), the Executive shall be entitled to receive any unpaid
amount of his then current salary (including unused vacation
entitlements pursuant to Clause 6.3) through the effective date of such
termination, as well as any other benefits which shall have vested and
become payable to him under the Benefit Plans as of such effective
date.
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10.3 Retirement. The employment of the Executive shall terminate
automatically upon his retirement. "Retirement" shall mean a
termination of the Executive's employment initiated by the Executive,
other than for Good Reason, whereby the Executive is entitled to
receive an immediately payable benefit, including any applicable early
retirement benefit, under any other pension or retirement plan then
generally applicable to its salaried employees or under any retirement
arrangement established with respect to the Executive with his prior
written consent; in either case, whether or not the Executive commences
to receive such benefit at the time of such termination. In the event
of the termination of the Executive's employment pursuant to his
retirement, the Executive shall be entitled to any other benefits which
shall have vested and become payable to him under the Benefit Plans as
of the effective date of such Retirement or to which the Executive is
otherwise entitled upon his Retirement under any Benefit Plan or other
policy or program of the Company or any Associated Company in
accordance with the respective terms of such Benefit Plan, policy or
program.
10.4 Death or Disability
10.4.1 Disability. Subject to the requirements of the Americans with
Disabilities Act of 1990, as amended, the Family and Medical
Leave Act of 1993, as amended and/or any other legislation
applicable to the Executive's employment by the Company, the
Company may terminate employment of the Executive, by giving
him a Notice of Termination not less than six months prior to
the effective date of such termination specified in such
notice, if the Executive shall have been absent from work due
to sickness, injury or other incapacity for more than 183 days
in the Aggregate during any period of 12 consecutive months or
if, in the opinion of a physician or other appropriate expert
selected by the Company, the Executive is likely to be unable
to perform his duties for more than 183 days in the Aggregate
during any period of 12 consecutive months; provided, that the
Company shall withdraw such notice if during its pendency the
Executive returns to full-time work and provides the Company
with a certificate from a physician or other appropriate
expert reasonably acceptable to the Company stating that he
has fully recovered and that no recurrence of such incapacity
may reasonably be anticipated, and provided further that if
the Executive returns to work after a period of absence which
would have entitled the Company to terminate his employment
the Company shall, after he has completed a period of three
consecutive months at work without further material absence
due to such sickness, injury or other incapacity, be deemed to
have waived its rights to terminate his employment based on
such previous period of absence. Circumstances justifying
termination of the Executive's employment by the Company
pursuant to this Clause 10.4.1 are referred to herein as
"Disability" and while in these circumstances executive is
deemed "Disabled".
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10.4.2 Death. The employment of the Executive by the Company shall
terminate automatically upon his death.
10.4.3 Benefits upon Disability. In the event of termination of
employment due to Disability the Company shall (i) continue to
pay Executive's salary and bonus for achieving 100% of his
performance objectives under Clause 3 and provide the other
emoluments and benefits specified hereinabove, including
contributions to the pension plan designated by the Executive
at the full rate for a period of twelve (12) months from the
date of termination hereunder; and (ii) cause the vesting of
all of the stock options granted to Executive under the Stock
Option Plan and allow the Executive a period of twenty-four
(24) months from the effective date of termination within
which to exercise such options. In addition, if the
Executive's employment is terminated by the Company pursuant
to Clause 10.4.1, the Company shall, after the expiration of
said twelve (12) month period, (a) continue to provide or
arrange for and fund a disability benefit to the Executive in
an amount of not less than sixty percent (60%) of his then
applicable base salary and (b) contribute to Executives
Pension Plan at the level in effect on the effective date of
termination for as long as the Executive is Disabled but in no
event after the Executive has reached the age of 65; provided,
however, that such disability benefit will be reduced to the
extent that it duplicates any payments under any disability
insurance plan of the company from time to time in effect.
10.4.4 Benefits upon Death. In the event of a termination of
employment due to the death of the Executive, his legal
representatives shall be entitled to receive any unpaid amount
of his then current salary through the effective date of such
termination plus a further three months base salary, as well
as any other benefits which shall have vested and become
payable to him under the Benefit Plans as of such effective
date or to which the Executive is otherwise entitled upon his
death under any Benefit Plan or other policy or program of the
Company or any associated Company in accordance with the
respective terms of such Benefit Plan, policy or program.
10.5 Upon the termination of his employment the Executive, or Executive's
legal representative as applicable, shall be entitled to accrued
vacation pay pursuant to Clause 6.3.
10.6 Notwithstanding the terms of Clause 2 or any other provision of this
Agreement, during any period between the giving of a Notice of
Termination and the effective date of termination in accordance with
the Clause 10, the Company shall not be under any obligation to provide
the Executive with any work and the Company may at any time during such
notice period without further notice suspend the Executive and/or
exclude him from all or any premises of the Company or any Associated
Company, provided, however, that, throughout such notice period, the
Company shall not make or give effect to any change in the terms and
conditions of the Executive's employment as in effect immediately
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prior to the Reference Time (as defined below) that would constitute
Good Reason under any of Paragraphs (b) through (g) of Clause 16.1.8
(regardless of whether his employment is terminated for Good Reason),
and the Executive's salary and other contractual, benefits shall
continue to be paid or provided by the Company in the manner to effect
at the Reference Time. "Reference Time" means the time immediately
prior to (i) in the case of a termination for Good Reason, the
occurrence that constitutes such Good Reason, or (ii) in all other
cases, the giving of the Notice of Termination. At any time during such
notice period the Executive shall at the request of the Company
immediately resign from office as a Director of the Company and any
Associated Company and from other office held by him in the Company or
my Associated Company (but without claim to compensation other than as
provided under this Agreement) and in the event of his failure to do so
the Company is hereby irrevocably authorized to appoint some person in
his name and on his behalf to sign and deliver such resignations to the
Company.
10.7 The Executive shall have no obligation to take any action to mitigate
or offset any amounts payable by the Company pursuant to this Clause
10, by seeking other employment or otherwise, nor shall the amount of
any payment provided for in this Agreement be reduced by any
compensation earned by the Executive as the result of employment by
another employer after the date of termination of the Executive's
employment or otherwise.
10.8 The termination of the Executive's employment for any reason whatsoever
shall not operate to terminate this Agreement as an entirety or to
adversely affect the respective continuing rights and obligations of
the parties under this Agreement, all of which shall survive the
effective date of such termination of employment in accordance with
their respective terms.
10.9 The Executive acknowledges that the Company may have in effect from
time to time a written severance plan or policy, which plan or policy
is or may be subject to change at the discretion of the Company. The
Executive shall not be entitled to any notice, payment in lieu of
notice or other severance payments under such plan or policy, but if
the notice period (or payment) to which the Executive would have been
entitled under such plan or policy as it may then exist is greater than
the notice period (or payment in lieu of such notice) to which the
Executive would be entitled under this Agreement, then the notice
period (and payment in lieu thereof) for termination hereunder shall be
deemed to be such greater amounts.
11. EXECUTIVE COVENANTS
11.1 The Executive acknowledges that during the course of his employment
with the Company he will receive and have access to Confidential
Information of the Company and its Associated Companies (including
without limitation those matters specified in Clause 9.2 of this
Agreement, as well as detailed customer lists and information relating
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to the operations and business requirements of those customers) and
accordingly he is willing to enter into the covenants described in
Clauses 11.2 and 11.3 in order to provide the Company and its
Associated Companies with what he considers to be reasonable protection
for those interests.
11.2 The Executive hereby covenants with the Company that during the term of
his employment he will not either directly or indirectly engage or
participate in any activity competitive with or adverse to the business
or interests of the Company or any of its Associated Companies.
11.3 The Executive hereby covenants with the Company that he will not for
the period of 24 months after the Executive's last active day of
employment without prior written consent of the Board of Directors,
directly or indirectly:
11.3.1 carry on or set up or be employed or engaged by or otherwise
assist in or be interested in any capacity (including without
limitation as a shareholder) in any line of business in
competition with any line of business which is part of the
Business of the Group with which the Executive has had
involvement and which the Company or any Associated Company is
carrying on during the 12 months preceding the Executive's
last active day of employment; or
11.3.2 carry on or set up or be employed or engaged by or otherwise
assist in or be interested in any capacity (including without
limitation as a shareholder) a business which competes or will
complete with any business of the Company or any Associated
Company which is planned or contemplated at the date of the
Executive's last active day of employment in any country in
which the business is planned or contemplated to operate and
which plans the Executive has been involved with to a material
extent; or
11.3.3 in connection with the carrying on of any businesses which is
in competition with the Business of the Group canvass, solicit
or approach or cause to be canvassed or solicited or
approached for orders in respect of any services provided
and/or any goods sold by the Company or any Associated Company
any person, firm or company who or which at the date of the
Executive's last active day of employment or at any time
during the period of 12 months prior to that data is a
supplier, customer or client of the Company or any Associated
Company and with whom or which the Executive shall have had
dealings during the course of his employment; or
11.3.4 in connection with the carrying on of any business in
competition with the Business of the Group do business with
any person, firm or company who or which has at any time
during the period of 12 months immediately preceding the date
of the Executive's last active date of employment done
13
business with the Company or any Associated Company as a
supplier, customer or client or distributor or consultant and
with whom or which the Executive shall have had dealings
during the course of his employment; or
11.3.5 solicit, entice away or hire or endeavor to solicit or entice
away from the Company or any Associated Company any person who
at the date of the Executive's last active day of employment
or at any time during the period of six months prior to that
date is employed or engaged by the Company or any Associated
Company as a head of any business unit, the direct report of
such business unit head, or any other key technical, marketing
or sales position and with whom the Executive shall have had
contact during the course of his employment (whether or not
such a person would commit a breach of his contract of
employment by so doing).
11.4 The Executive hereby agrees that he will at the cost of the Company
enter into a direct agreement or undertaking with any Associated
Company whereby he will accept restrictions and provisions
corresponding to the restrictions and provisions in Clause 11.3 above
(or such of them as may be appropriate in the circumstances) in
relation to such activities and such country or countries as such
Associated Company may reasonably require for the protection of its
legitimate business interests.
11.5 Notwithstanding the generality of the covenants contained in Clause
11.3 those covenants shall apply only with respect to those countries
in which the Company or any Associated Company has transacted any
business during the 12 months prior to the date of Executive's last
active day of employment in which the Executive has been involved.
11.6 Nothing contained herein shall prohibit the Executive from (x) holding
directly or through nominees up to two percent of the outstanding stock
of any publicly-held and traded company or shares or an equity interest
in PERQ/HCI, a majority-owned subsidiary of VNU, a Dutch public
company, ("PERQ/HCI"), a company formed as a result of the purchase by
VNU of Healthcare Communications Inc. ("HCI"), previously a
privately-held corporation organized under the laws of the State of
Delaware, solely for investment purposes, or (y) serving as a director
of PERQ/HCI, during the continuance of his employment pursuant to this
Agreement; provided, however, that if any private company in which
Executive directly holds shares is merged with a publicly-held company
and, as a result of such merger, Executive's holdings are in excess of
two percent of the public entity, such holdings shall not be deemed to
have caused a violation of this Agreement.
11.7 The covenants contained in Clauses 11.3.1, 11.3.2, 11.3.3, 11.3.4 and
11.3.5 are intended to be separate and severable and enforceable as
such.
11.8 In the event of a breach of Clauses 11.3.1, 11.3.2, 11.3.3, 11.3.4, or
11.3.5, the Executive acknowledges that in addition to any other
remedies available under law to the Company and any Associated Company,
the Company and any Associated Company may be entitled to an
14
injunction enjoining the Executive or any person or persons acting for
or with the Executive in any capacity whatsoever from violating any of
the terms thereof.
12. DISCIPLINARY AND GRIEVANCE PROCEDURES
12.1 For statutory purposes there is no formal disciplinary procedure in
relation to the Executive's employment. The Executive shall be expected
to maintain the highest standards of integrity and behavior.
12.2 If the Executive is not satisfied with any disciplinary decision taken
in relation to him he may apply in writing within 14 days of that
decision to the Board of Directors whose decision shall be final.
12.3 If the Executive has any grievance in relation to his employment he may
raise it in writing with the Board of Directors whose decision shall be
final.
13. ASSIGNMENT
13.1 The Company may assign its rights or delegate its performance, in whole
or in part, to any of its Associated Companies; provided that any such
assignment or delegation shall not affect the Executive's position with
the Company. This Agreement shall be binding upon and shall inure to
the benefit of the Company and any successor of the Company. In the
event of any permitted assignment, the Company shall guarantee the
performance of this Agreement by the Associated Company.
13.2 This Agreement shall be binding upon and shall inure to the benefit of
Executive, his legal representatives and assigns, except that
Executive's obligations to perform services under this Agreement are
personal and are expressly declared to be non-assignable and
non-transferable by him without the consent in writing of the Company.
13.3 In the event of a Change in Control, the Company shall require the
successor to the Company as the Executive's employer (whether such
succession is direct or indirect, by purchase, merger, consolidation or
otherwise, to all or a substantial portion of the business and/or
assets of the Company) to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place.
As used in this Agreement, the term "Company" shall mean the Company as
hereinbefore defined and any successor to all or a substantial portion
of its business and/or assets as aforesaid.
14. NOTICES
14.1 Any notice to be given under this Agreement shall be given in writing
and shall be deemed to be sufficiently served by one party on the other
15
if it is delivered personally or is sent by facsimile transmission,
overnight delivery service or registered or recorded delivery prepaid
post (air mail if overseas) addressed to either the Company's
registered office for the time being or the Executive's last known
address as the case may be.
14.2 Any purported termination of the Executive's employment by the Company
or by the Executive shall not be effective unless communicated by
written Notice of Termination to the other party hereto in accordance
with Clause 14.1 above and the relevant provisions of Clause 10. A
Notice of Termination shall identify the specific termination provision
of this Agreement relied upon, shall specify the intended effective
date of such termination (which date shall comply with the notice
period requirements of the provision so identified) and shall set forth
in reasonable detail the facts and circumstances claimed to provide a
basis for termination under the provision so identified.
15. MISCELLANEOUS
15.1 Golden Parachute Tax
15.1.1 Anything in this agreement to the contrary notwithstanding, in
the event that any payment by the Company to or for the
benefit of the Executive, whether paid or payable pursuant to
the terms of this Agreement or otherwise or any income
realized upon the exercise of any options granted by the
Company to the Executive (such payment or income, excluding
any payment pursuant to this Clause 15.1, a "Payment") is
either reasonably determined by the Company to be subject, or
is subjected by the IRS (after exhaustion by the Company of
its remedies described in Clause 15.1.3), to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended, (the "Code") or any interest or penalties 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 Executive shall be
entitled to receive from the Company, within 15 days following
the determination described in Clause 15.1.2 below, an
additional payment (an "Excise Tax Adjustment Payment") in an
amount such that, after payment by the Executive of all
applicable U.S. federal, state and local taxes (computed at
the maximum marginal rates and including any interest or
penalties imposed with respect to such taxes) and the Hospital
Insurance portion of FICA tax, including any Excise Tax
imposed upon the Excise Tax Adjustment Payment, the Executive
retains an amount of the Excise Tax Adjustment Payment equal
to the Excise Tax imposed upon the payments.
15.1.2 In the event that as the result of a position taken by the
Company to the IRS, the Executive is required to make a
payment of any Excise Tax, the determination of the amount of
the Excise Tax Adjustment Payment shall be made by a
nationally recognized accounting firm acceptable to the
Executive and the Company (the "Accounting Firm"), which shall
provide detailed supporting calculations to the Company and
16
the Executive. Subject to the provisions of Clause 15.1.3
below, the amount of the Excise Tax Adjustment Payment shall
be promptly paid by the Company to or for the benefit of the
Executive. The determination of The Excise Tax Adjustment
Payment by the Accounting Firm shall be binding upon the
Company and the Executive.
15.1.3 The Executive shall notify the Company in writing of any claim
by the IRS that, if successful, would require the payment by
the Company of the Excise Tax Adjustment Payment. Such
notification shall be given as soon as practicable but no
later than 20 business days after the Executive is informed in
writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim
prior to the expiration of the 30-day period following the
date on which he gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies
the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive
shall:
(a) give the Company any information reasonably required
by the Company relating to such claim,
(b) take such action in connection with contesting such
claim as the company shall reasonably request in
writing from time to time, including, without
limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company,
(c) cooperate with the Company in good faith in order
effectively to contest such claim, and
(d) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of the Clause
15.1.3, the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and
all administrative appeals, proceedings, hearings and conferences with
the taxing authority in respect of such claim and any, at its sole
option, either direct the Executive to pay the tax claimed and xxx for
a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before
17
any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall determine; provided,
however, that if the Company directs the Executive to pay such claim
and xxx for a refund, the Company shall advance the amount of such
payment to the Executive on an interest-free basis and shall indemnify
and hold the Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect hereto)
imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest
shall be limited to issues with respect to which an Excise Tax
Adjustment Payment would be payable hereunder and the Executive shall
be entitled to settle or contest, as the case may be, any other issue
raised by the IRS or any other taxing authority.
15.1.4 If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Clause 15.1.3, the Executive
becomes entitled to receive any refund with respect to such
claim, the Executive shall (subject to the Company's complying
with the requirements of Clause 15.1.3) promptly pay to the
Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable hereto). If,
after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 15.1.3, a determination is
made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall
not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Excise Tax
Adjustment Payment required to be paid.
15.2 The Executive hereby warrants that by virtue of entering into this
Agreement he will not be in breach of any express or implied terms of
any court order, contract or of any other obligation legally binding
upon him.
15.3 Any benefits provided by the Company to the Executive or his family
which are not expressly referred to in this Agreement shall be regarded
as ex gratia benefits provided at the entire discretion of the Company
and shall not form part of the Executive's contract of employment.
15.4 Except as expressly provided in this Clause 15, the Executive shall be
responsible for the payment of all individual taxes on all amounts paid
or benefits provided to him under this Agreement. All compensation
(including without limitation, salary and any severance payments) paid
to the Executive shall be subject to such deductions as from time to
time may be required by law or regulation subject to agreement with, or
consent of the Executive which will not be unreasonably withheld.
18
15.5 Any waiver by either party of any breach of any provision of this
Agreement must be set forth in a writing signed by such party, in order
for it to be effective, and no such waiver shall operate as a waiver of
any subsequent breach of that provision or any breach of any other
provision of this Agreement.
15.6 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same instrument.
15.7 The Company will indemnify the Executive (and his legal
representatives, heirs, estate or other successors) to the fullest
extent permitted (including payment of expenses in advance of final
disposition of any proceeding) by the laws of the jurisdiction of the
incorporation of the Company as in effect at the time of the subject
act or omission, or by the Certificate of Incorporation and by-laws of
the Company as in effect at such time or on the date of this Agreement,
or by the terms of any indemnification agreement between the Company
and the Executive, whichever affords or afforded greatest protection to
the Executive, and the Executive shall be entitled to the protection of
any insurance policies the Company or any Associated Company may elect
to maintain generally for the benefit of its directors and officers,
and to the extent the Company or an Associated Company maintains such
an insurance policy or policies the Executive shall be covered by such
policy or policies in accordance with its or their terms, to the
maximum extent of the coverage available for a person serving or having
served in the positions and offices in which the Executive is serving
or has served), against all costs, charges and expenses whatsoever
incurred or sustained by him (or his legal representatives, heirs,
estate or other successors) at the time such costs, charges and
expenses are incurred or sustained, in connection with any action, suit
or proceeding to which he (or his legal representatives, heirs, estate
or other successors) may be made a party by reason of his being or
having been a director, officer or employee of the Company or any
Associated Company, or by reason of his serving or having served any
other enterprise as a director, officer or employee at the request of
the Company or any Associated Company.
15.8 In the event of a dispute between the Executive and the Company with
respect to any of the Executive's rights under this Agreement, the
Company shall reimburse the Executive for any and all legal fees and
disbursements incurred by him in connection with enforcing such rights,
at the time such fees and disbursements are incurred (but in no event
more frequently than monthly); provided, however, that if the
Executive's claim is found by a court of competent jurisdiction to have
been frivolous, the Executive shall reimburse the Company for all
amounts paid by the Company pursuant to this Clause 15.8.
15.9 The Company or PMSI shall maintain in force directors' and officers'
liability insurance for a minimum of $10 million and shall afford
Executive the maximum protection available under the terms of that
policy for the performance of his duties as an officer and director of
the Company.
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16. DEFINITIONS AND INTERPRETATION
16.1 In this Agreement unless the context otherwise requires or as otherwise
defined herein the following expressions have the following meanings:
16.1.1 "Associated Company"
Any corporation, limited liability company or other legal
entity that, directly or indirectly through one or more
intermediaries controls, is controlled by or is under common
control with the Company, where "control" means the power to
direct or cause the direction of the management and policies
of such entity, Whether through ownership of voting
securities, by contract or otherwise.
16.1.2 "Benefit Plans"
The 401(k) plan and other pension, retirement, life insurance,
medical, dental, health, accident, disability, welfare,
savings, deferred compensation or similar plans of the Company
and its Associated Companies.
16.1.3 "the Board of Directors"
The Board of Directors for the time being of the Company
including any duly appointed committee thereof.
16.1.4 "the Business of the Group"
The business of the Company and the Associated Companies as
described in the Schedule hereto and such other business or
businesses as the Company or any Associated Company may enter
into from time to time of which the Executive is aware.
16.1.5 "Cause"
Any of the following:
(a) the Executive's willful and continued failure substantially to
perform his duties hereunder (other than as a result of
sickness, injury or other physical or mental incapacity or as
a result of termination by the Executive for Good Reason);
provided, however, that such failure shall constitute "Cause"
only if (x) the Company delivers a written demand for
substantial performance to the Executive that specifies the
manner in which the Company believes the Executive has failed
substantially to perform his duties hereunder and (y) the
Executive shall not have corrected such failure within 10
business days after his receipt of such demand;
20
(b) willful misconduct by the Executive in the performance of his
duties hereunder that is demonstrably and materially injurious
to the Company or any Associated Company for which he is
required to perform duties hereunder;
(c) the Executive's conviction of (or plea of 'nolo contendere'
to) a felony under the laws of the United States or any state
thereof or a criminal offense under the laws of the United
Kingdom or any other non-U.S. jurisdiction that would
constitute a felony under the laws of the United States or of
the State of Delaware (other than offence under the
road-traffic legislation in the United States or elsewhere for
which a non-custodial penalty is imposed); or
(d) the Executive's illegal or persistent immoderate use or abuse
of alcoholic beverages or drugs in a manner that in the
reasonable opinion of the Company demonstrably and materially
impairs the Executive's ability to perform his duties under
this Agreement or demonstrably and materially adversely
affects the Executive's or the Company's reputation with
customers or in the community as a whole; provided, however,
that this clause (d) shall not apply to use of prescription
drugs in the manner prescribed by a physician or other duly
licensed medical or health practitioner authorized to issue
prescriptions for such prescription drugs.
No action, or failure to act, shall be considered "willful" if
it is done by the Executive in good faith and with the
reasonable belief that his action or omission was in the best
interest of the Company.
16.1.6 "Change in Control"
The occurrence of any of the following:
(a) any event pursuant to which any "Person" becomes an "Acquiring
Person" (as such terms are defined in that certain Agreement
dated as of January 28, 1998 between the Company and Xxxxxx
Trust Company of New York as Rights Agent);
(b) a merger, consolidation, exchange, combination or other
transaction involving the Company and another entity (or the
securities of the Company and such other entity) as a result
of which the holders of all of the shares of Common Stock of
the Company outstanding prior to such transaction do not hold,
directly or indirectly, shares of the outstanding voting
securities of, or other voting ownership interests in, the
surviving, resulting or successor entity in such transaction
in substantially the same percentages of ownership as those in
which they held the outstanding shares of Common Stock of the
Company immediately prior to such transaction;
(c) the sale, transfer, assignment or other disposition by the
Company and/or one of more Associated Companies, in one
transaction or a series of transactions within
21
any period of 18 consecutive calendar months (including,
without limitation, by means of the sale of capital stock of
any subsidiary or subsidiaries of the Company) of assets which
account for an aggregate of 50% of the assets of the Company
or more than 50% of the consolidated revenues of the Company
and its subsidiaries, as determined in accordance with U.S.
generally accepted accounting principles, for the fiscal year
most recently ended prior to the date of such transaction (or,
in the case of a series of transactions as described above,
the first such transaction); provided, however, that no such
transaction shall be taken into account if substantially all
the proceeds thereof (whether in cash or in kind) are used
after such transaction in the ongoing conduct by the Company
and/or its subsidiaries of the business conducted by the
Company and/or its subsidiaries prior to such transaction;
(d) the Company is dissolved; or
(e) a majority of the directors of the Company are persons who
were not members of the Board of Directors as of the date (the
"Reference Date") which is the more recent of the date hereof
and the date which is two years prior to the date on which
such determination is made, unless the first election or
appointment (or the first nomination for election by the
Company's shareholders) of each director who was not a member
of the Board of Directors on the Reference Date was approved
by a vote of at least two-thirds of the Board of Directors in
office prior to the time of such first election, appointment
or nomination.
16.1.7 "the Chief Executive Officer"
The Chief Executive Officer of the Company and a member of the
Board of Directors of the Company.
16.1.8 "Good Reason"
The occurrence of any of the following (other than by reason
of a termination of the Executive for Cause or Disability):
(a) the position or responsibilities of the Executive are
significantly reduced, (including, without limitation, by
reason of the elimination of the position of the Chief
Executive Officer or the failure to elect the Executive to the
position of the Chief Executive Officer or by reason of a
change in the reporting responsibilities to and of such
position, or, following a Change in Control, or any reason of
a substantial reduction in the size of the Company or other
substantial change in the character or scope of the Company's
operations), or the Executive is assigned without his written
consent to any duties inconsistent with his positions, duties,
responsibilities and status with the Company immediately prior
to such assignment;
22
(b) the salary provided in Clause 3.1 hereof (as the same may be
increased from time to time in accordance with Clause 3.3) is
reduced (except if such reduction occurs prior to a Change in
Control and is part of an across-the-board reduction
applicable to all senior level executives of the Group);
(c) the annual incentive compensation provided for in Clause 3.2
hereof is reduced or eliminated or, if after a change in
Control, the Executive's participation level is reduced or the
manner of assessing actual performance is changed in a manner
that results or would result in the Executive earning less
such compensation for a given period than he would have for
the same period absent such change;
(d) the Executive's aggregate level of benefits under the Benefit
Plans is reduced, except if such reduction occurs prior to a
Change in Control is part of an across-the-board reduction in
such benefits applicable to all senior level executives of the
Group;
(e) after a Change in Control, the Company fails to continue to
provide the Executive with benefits and perquisites which are
substantially similar in the aggregate to those to which the
Executive is entitled under the Company's Benefit Plans in
which the Executive was participating immediately prior to the
Change in Control, or fails to provide the Executive with
directors' and officers' insurance, at least at the level
maintained immediately prior to the Change in Control;
(f) the Executive is required to change his regular work location
to a location that is more than 15 miles from the current
address of Executive set out at the beginning of this
Agreement;
(g) the Company fails to pay the Executive any amount otherwise
vested and due hereinunder or under any plan or policy of the
Company, or fails to comply with any other provision of or
perform any of its other obligations under this Agreement; or
(h) the Company fails to obtain from any successor and to deliver
to the Executive such successor's written agreement to assume
and agree to perform the Company's obligations under this
Agreement.
If the Executive delivers to the Company a Notice of
Termination in connection with an event described in Clauses (a) through (h)
above, the Company shall have 10 business days from the date of receipt of such
notice to effect a cure of the event described therein, and upon cure thereof by
the Company to the Executive's reasonable satisfaction, such event shall no
longer constitute "Good Reason" for purposes of this Agreement.
23
16.1.9 "Group"
The Company and the Associated Companies.
16.1.10 "Intellectual Property"
Letters patent, trademarks, trade names, service marks,
designs, copyrights, utility models, design rights,
applications for registration of any of the foregoing and the
right to apply for them in any part of the world, inventions,
drawings, computer programs, trade secrets and other
non-public proprietary information, know-how and rights of
like nature arising or subsisting anywhere in the world in in
relation to the Business of the Company whether registered or
unregistered.
16.1.11 "IRS"
The United States Internal Revenue Service, or any successor
agency of the United States Government.
16.1.12 "Stock Option Plan"
The Pharmaceutical Marketing Services Inc. and its
Subsidiaries Stock Option and Restricted Stock Purchase Plan,
as the same may be amended from time to time, or any employee
stock option plan that replaces, supersedes or supplements
such plan.
16.1.13 "Territory"
The counties of North America, Asia and the Far East and
Continental Europe, excluding the United Kingdom.
16.2 The headings in this Agreement are for convenience only and shall not
affect its construction or interpretation.
16.3 Any reference in this Agreement to a statutory provision shall be
deemed to include a reference to any statutory amendment, modification
or re-enactment of it or to any legislation that supersedes it.
16.4 This Agreement together with the Company plans, agreements and other
arrangements referred to herein contains the entire understanding
between the parties and supersedes any other prior agreements,
arrangements and understandings (written or oral) between the Company
and the Executive relating to the employment of the Executive with the
Company (other than Executive's activities on behalf of the Group in
the United Kingdom) which such agreements, arrangements and
understandings shall be deemed to have been terminated by mutual
consent; provided, however, that this Agreement shall not terminate any
agreement in effect on the date hereof between the Company and the
24
Executive granting or otherwise relating to any stock option, and any
such agreement shall be deemed to be modified and amended hereby to the
extent that the terms of such agreement are inconsistent with the terms
hereof. The Executive acknowledges that he has not entered into this
Agreement in reliance on any warranty, representation or undertaking
which is not contained in or specifically incorporated in this
Agreement.
16.5 The parties acknowledge that PMSI Limited, an Associated Company, and
Executive have entered into an executive services agreement relating to
Executive's services in the United Kingdom. The parties hereto have
agreed that, in the case of conflict, the performance of Executive's
duties under this Employment Agreement shall take precedence over the
performance of Executive's duties under that agreement. The parties
hereto expressly agree (i) that Executive shall not be required to work
more than 140 days under this Agreement and (ii) that the term of
employment set forth in Clause 1 of this Agreement shall not be
terminated or affected in any way, and Executive's remuneration under
this Agreement shall not be changed by the termination for an reason
whatsoever of Executive's employment with PMSI Limited, the intent
being that each employment shall be separate from and independent of
the other.
16.6 The various Clauses of this Agreement are severable and if any Clause
or identifiable part thereof is held to be invalid or unenforceable by
any court of competent jurisdiction then such invalidity or
unenforceability shall not affect the validity or enforceability of the
remaining Clauses or identifiable parts thereof in this Agreement, and
the parties hereto agree that the portion so held invalid,
unenforceable or void shall, if possible, be deemed amended or reduced
in scope, or otherwise be stricken from this agreement, to the extent
required for the purposes of the validity and enforcement hereof.
16.7 Unless the context otherwise requires, any reference in this Agreement
to the employment of the Executive or the Executive's last day of
active employment refers to the Executive's employment with the
Company.
16.8 Unless the context otherwise requires, any reference herein to Benefit
Plans or other plans, agreements, arrangements, policies or programs of
the "Company," or to a benefit, payment or contribution provided or to
be provided to the Executive by the "Company" shall be understood to
include any Benefit Plan, plan, agreement, arrangement, policy or
program of any Associated Company, or any benefit, payment or
contribution provided or to be provided to the Executive by any
Associated Company, respectively.
16.9 This Agreement is governed by and shall be construed in accordance with
the laws of the State of Delaware, and the parties to this Agreement
hereby submit to the nonexclusive jurisdiction of the Federal and State
Courts sitting in Wilmington, Delaware.
25
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
ATTEST: PHARMACEUTICAL MARKETING
SERVICES INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
WITNESS: XXXXXX X.X.XXXXXX
/s/ A.M. Xxx Xxxxxx /s/ Xxxxxx X.X. Xxxxxx
26
SCHEDULE
BUSINESS OF THE GROUP
The Business of the Group consists of the provision to the pharmaceutical
industry of:
(a) information services from and surveys of physicians and
managed care professionals;
(b) marketing research audits and surveys evaluating promotional
expenditure, physicians attitudes, behaviours and prescribing;
(c) profiles of managed care organizations, formularies,
regulations and legislation; and
(d) related strategic studies and consulting services.
27
