EXHIBIT 10.3(b)
EXECUTIVE SERVICES AGREEMENT
THIS AGREEMENT is made as of the fifth day of August, 1998 BETWEEN:
PMSI LIMITED (hereinafter the "Company" or "PMSI"), a limited liability company
organized and existing under the laws of the United Kingdom with its registered
office at Xxxxxx House, Hampton Court Road, East Molesey, Surrey KT8 9BX,
England and XXXXXX X. X. XXXXXX, an individual residing at 00 Xxxxxxx Xxxxxxx,
Xxxxxx XX0 0XX, Xxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the parent of the Company, Pharmaceutical Marketing Services Inc.
("PMSI") is engaged in the business of providing data, information and
consulting services to the pharmaceutical and healthcare industries in the
United Kingdom of Great Britain and Northern Ireland; and
WHEREAS, Source Informatics Limited ("SIL"), a predecessor-in-interest to
the Company, entered into an Executive Services Agreement dated as of the 16th
day of April 1996 (the "Original Executive Services Agreement) with Executive;
and
WHEREAS, SIL was acquired by Pharmaceutical Marketing Services Inc., a
Delaware Corporation ("PMSI") on December 15, 1997 and was sold to a third party
on August 5, 1998 as a result of which the Company was formed to continue
certain services on behalf of PMSI; and
WHEREAS, the Company and Executive now wish to amend and restate the terms
of the Original Executive Services Agreement in this new Executive Services
Agreement with the Company, as set forth hereinbelow.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein set forth, the parties hereto amend and restate the original Executive
Services Agreement, effective as of the date first above written in its entirety
as follows:
1. COMMENCEMENT AND TERM
1.1 The Company shall employ the Executive upon and subject to the terms and
conditions set forth in this Agreement.
1.2 The Executive's employment began with the Company's
predecessor-in-interest, Xxxxx U.K. Limited (through its subsidiary,
Infomed Management Limited) on 15th January 1987 and has been continuous
thereafter. For statutory purposes Executive's period of continuous
employment for relevant purposes began on 15th January 1987.
1.3 The employment of Executive shall (subject to the provisions of Clause
10) be for an indefinite term.
2. OBLIGATIONS DURING EMPLOYMENT
2.1 The Executive shall during the continuance of his employment:
2.1.1 Provide executive management services to the Company and the Group in the
United Kingdom;
2.1.2 Consult with and provide advice to the Board of Directors of the Company
and the Company's parent company, PMSI, on business performance, policy,
procedures and programs in the United Kingdom;
2.1.3 Supervise and coordinate the preparation and review of strategies, plans,
budgets and projections for the Company;
2.1.4 Review, with the Group's UK-based outside advisors, tax, legal and
financial questions relating to the operations of the Company and the
Group;
2.1.5 Advise on the operations and performance of the Company in the United
Kingdom;
2.1.6 Perform such related duties in the United Kingdom with respect to the
business activities of the Company and the Group as may be assigned to
Executive by the Boards of Directors of the Company or PMSI;
2.1.7 Do all in his power to protect, promote, develop, and extend the business
interests and reputation of the Company and the Group within the United
Kingdom;
2.1.8 Unless prevented by sickness, injury or other incapacity, and subject to
the restrictions specified in Clause 16.4 hereinafter or as otherwise
agreed by the Board of Directors, devote 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;
2.1.9 Travel from time to time as may be required in connection with the
business of the Company; provided that the Executive shall not be
required to change his regular work location to another work location
more than fifteen (15) miles from the Executive's residence as set forth
above.
3. REMUNERATION
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
ninety-six thousand Pounds Sterling ((pound)96,000) 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.
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.
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 appropriate 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 The parties hereto acknowledge that a Contracting-Out Certificate is not
in force in respect of Executive's employment with the Company.
4.4 The Company shall provide the Executive with a car of such make and model
as the Company shall decide is suitable for him and compatible with his
status in the Company for his sole use during the continuance of his
employment in respect of which the Company shall pay or reimburse the
Executive all standing and running costs including the cost of fuel
consumed by the car in the course of private journeys undertaken by the
Executive. The Company shall replace the car with another of equivalent
make and model/value once every three years.
4.5 The Executive shall at all times and in all respects conform to and
comply with any policy which may from time to time be made by the Company
in relation to cars provided by it for the use of its employees and,
without limiting the foregoing, the Executive:
4.5.1 shall ensure that at all times when the car is driven on a public highway
it is in the state and condition required by law; and
4.5.2 shall at all times be the holder of a valid current driving license.
4.6 Alternatively, in lieu of such car, the Executive may elect to opt for
the Company's cash alternative scheme and take the sum of Twenty Two
Thousand Pounds Sterling ((pound)22,000) in cash per annum, payable in
equal monthly installments. The amount of the cash payment in lieu of the
car shall be increased on an annual basis for each year by an amount not
less than the percentage increase in the Retail Price Index in the United
Kingdom for the preceding year as determined by the Government of the
United Kingdom.
4.7 For the avoidance of doubt, the Company shall be entitled at its absolute
discretion to withdraw the use of the car provided to Executive pursuant
to this Clause if the Executive is disqualified from holding a valid
current driving license; provided however, that in such event the Company
shall pay Executive the cash alternative car allowance specified in
Clause 4.6 hereinabove.
5. EXPENSES
5.1 The Company shall during the continuance of Executive's employment
reimburse him in respect of all reasonable and appropriate travel and
accommodation (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, but not be limited to, the membership fees and annual dues of
the Royal Automobile Club or an equivalent private dining and social dub
selected by Executive where such dub 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 submitting claims and
providing appropriate authorized evidence (including receipts, invoices,
tickets and/or vouchers as may be appropriate) of the expenditure in
respect for which he claims reimbursement.
6. HOLIDAYS
6.1 The Executive shall (in addition to the usual public and bank holidays)
be entitled during the continuance of his employment to twelve (12)
working days' paid holiday in each calendar year.
6.2 The Executive shall not be permitted to carry forward accumulated, used
holiday entitlement in excess of twelve (12) days from one calendar year
to the next.
6.3 Upon the termination of his employment, the Executive's entitlement to
accrued holiday pay (which accrues at the rate of one (1) day per month)
shall be calculated on a pro rata basis in respect of each completed
month of service in the holiday year in which his employment terminates
to which shall be added any carry-over 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'
holiday 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, 5 and 6 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 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 11.3 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 11.3.
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 favour 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 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 of 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
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 Cause 10.1.2(b) during the period of
twenty-four (24) months following the effective date of such
termination); provided, however, that Executive shall have the
right to request and receive the aggregate lump sum payment
comprising subclauses (i), (ii), and (iii) hereinabove in
installments designated by Executive paid over the calendar year
of the effective date of termination and the subsequent two
calendar years;
(b) for a period of twenty four (24) months after the effective date
of such termination, the Company shall provide the Executive with
his company car or cash allowance in lieu, pension contributions,
life, health, accidental death, disability and all other insurance
benefits for the Executive and his dependents under the Benefit
Plan 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 immedi ately 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
twenty four (24) month period referred to in subclause (b) above.
10.1.2 Notwithstanding the other provisions of this Clause 10.1, in the extent
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 hereinabove (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 16.1.7(b), the annual salary used for computation under
this Clause 10.1.2(a) shall be the one in effect prior to the
reduction referred to in Clause 16.1.7(b); provided, however, that
Executive shall have the right to request and receive the
aggregate lump sum payment comprising subclauses (i), (ii), (iii)
and (iv) herein above in installments designated by Executive paid
over the calendar year of the effective date of termination and
the subsequent two calendar years;
(b) for a period of thirty six (36) months after the effective date of
such termination, the Company shall provide the Executive with his
company car or cash allowance in lieu, 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, 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;
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 same rights and receive the same benefits to which he
would be entitled if the Company had terminated his employment Without
Cause under Clause 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 on the same date pursuant to Clause 10.1.
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.
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 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."
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 Associ ated
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
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 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 in 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 any 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 a 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. EXECUTIVES 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 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 of 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 in each specific national market 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 compete 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 business 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 date 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
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 Executives 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 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 or the other 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 on
under the provision so identified.
15. MISCELLANEOUS
15.1 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.
15.2 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.
15.3 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 would not be unreasonably withheld.
15.4 Any waiver by either party of any breach of any provision of this
Agreement must be set forth in 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.
15.5 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.
15.6 The Company and PMSI will indemnify the Executive (and his legal
representatives, heirs, estate or other successors) to the fullest extent
provided (including payment of expenses in advance of final disposition
of any proceeding) under Section 310 of the Companies Xxx 0000 and the
Articles of Association 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.
15.7 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.
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.
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;
(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
criminal offence under the laws of the United Kingdom, a felony
under the laws of the United States or any state thereof or any
non-U.S. jurisdiction that would constitute a felony under the
laws of the United States or of the state of Delaware (other than
offences under the road-traffic legislation in the United Kingdom
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, as such Agreement initially
entered into effective as of such date);
(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 percentage 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 PMSI, the
Company and/or one or more Associated Companies, in one
transaction or a series of transactions within 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 PMSI or more than 50% of the
consolidated revenues of PMSI 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 "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
of PMSI or the failure to elect the Executive to the position of
the Chief Executive Officer of PMSI or by reason of a change in
the reporting responsibilities to and of such position, or,
following a Change in Control, by reason of a substantial
reduction in the size of PMSI or other substantial change in the
character or scope of the PMSI 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;
(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 which results 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 and 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.
16.1.8 "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 relation to the
Business of the Group whether registered or unregistered.
16.1.9 "Group"
The Company and the Associated Companies.
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 contains the entire understanding between the parties and
supersedes all prior agreements, arrangements and understandings (written
or oral) relating to the employment of the Executive with the Company
(other than Executive's activities on behalf of the Group in the United
Kingdom and his compensation therefor). The parties acknowledge that PMSI
and Executive have entered into an Employment Agreement relating to
Executive's services outside of the United Kingdom for an aggregate
period not to exceed one hundred forty (140) working days each year.
The parties hereto have agreed that, in the case of conflict, the
performance of Executive's duties under the Employment Agreement with
PMSI shall take precedence over the performance of Executive's duties
under this Executive Services Agreement. The parties hereto expressly
agree 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 any reason whatsoever of Executive's employment with PMSI, the intent
being that each employment shall be separate from and independent of the
other.
16.5 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 part 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 e purposes of the
validity and enforcement hereof.
16.6 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.
16.7 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.
16.8 This Agreement is governed by and shall be construed in accordance with
the law of the United Kingdom.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
EXECUTED AND DELIVERED AS A DEED BY PMSI LIMITED
/s/ X. X. Xxxxxx /s/ Xxxxxxx Xxxxxx
---------------------------- -------------------------
Title: X.X. Xxxxxx, Director Title:
SIGNED SEALED AND DELIVERED
by the said XXXXXX X.X. XXXXXX
in the presence of:
/s/ A.M. Xxx Xxxxxx /s/ Xxxxxx X.X. Xxxxxx
---------------------------- -------------------------
SCHEDULE
BUSINESS OF THE GROUP The Business of the Group consists of the provision to the
pharmaceutical industry of:
(a) information services from and survey of physicians and managed care
professionals;
(b) marketing research audits and survey evaluating promotional
expenditure, physicians attitudes and behaviours and prescribing;
(c) profiles of managed care organizations, formularies, regulations and
legislation; and
(d) related consulting services to the pharmaceutical industry.
