Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 1st day of
November, 2001, by and among PDI, INC., a Delaware corporation (the "Company"),
having its principal place of business at 00 Xxxxxxxxxxxx Xxxx, Xxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx 00000, on the one hand, and XXXXXXX X. XXXXXXXXX, residing at
0 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Executive"), on the other.
W I T N E S S E T H
WHEREAS, the Executive is currently employed by the Company and serves as
the Company's Vice Chairman and Chief Executive Officer; and
WHEREAS, the Company, recognizing the unique skills and abilities of the
Executive, wishes to insure that the Executive will continue to be employed by
the Company; and
WHEREAS, the Executive desires to continue in the employment of the
Company as Vice Chairman and Chief Executive Officer; and
WHEREAS, the parties desire by this Agreement to set forth the terms and
conditions of the employment relationship between the Company and the Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
in this Agreement, the Company and the Executive agree as follows:
1. Employment and Duties. The Company hereby employs the Executive as Vice
Chairman and Chief Executive Officer on the terms and conditions provided in
this Agreement and Executive agrees to accept such employment subject to the
terms and conditions of this Agreement. The Executive shall be responsible for
the overall management and operations of the Company, shall perform the duties
and responsibilities as are customary for the officer of a corporation in such
positions, and shall perform such other duties and responsibilities as are
reasonably determined from time to time by the Company's Board of Directors (the
"Board"). The Executive shall report to and be supervised by the Board. The
Executive shall be based at the Company's offices in Upper Saddle River, New
Jersey or such other place which shall be within a twenty mile radius thereof
that shall constitute the Company's headquarters and, except for business travel
incident to his employment under this Agreement, the Company agrees the
Executive shall not be required to relocate. The Executive agrees to devote
substantially all his attention and time during normal business hours to
the business and affairs of the Company and to use his reasonable best efforts
to perform faithfully and efficiently the duties and responsibilities of his
positions and to accomplish the goals and objectives of the Company as may be
established by the Board. Notwithstanding the foregoing, the Executive may
engage in the following activities (and shall be entitled to retain all economic
benefits thereof including fees paid in connection therewith) as long as they do
not interfere in any material respect with the performance of the Executive's
duties and responsibilities hereunder and, with respect to subsections (i) and
(ii) below, that such activity is pre-approved by the Company's Chairman of the
Board: (i) serve on corporate, civic, religious, educational and/or charitable
boards or committees, provided that the Executive shall not serve on any board
or committee of any corporation or other business which competes with the
Business (as defined in Section 10(a) below); (ii) deliver lectures, fulfill
speaking engagements or teach on a part-time basis at educational institutions;
and (iii) make investments in businesses or enterprises and manage his personal
investments; provided that with respect to such activities Executive shall
comply with any business conduct and ethics policy applicable to employees of
the Company.
2. Term. The term of this Agreement shall commence on November 1, 2001
(the "Commencement Date"), and shall terminate on October 31, 2005, unless
extended or earlier terminated in accordance with the terms of this Agreement
(the "Termination Date"). Such term of employment is herein sometimes referred
to as the "Employment Term". The Employment Term shall be extended for
successive one year periods unless either party notifies the other in writing at
least 365 days before the Termination Date, or any anniversary of the
Termination Date, as the case may be, that he or it chooses not to extend the
Employment Term.
3. Compensation. As compensation for performing the services required by
this Agreement, and during the term of this Agreement, the Executive shall be
compensated as follows:
(a) Base Compensation. The Company shall pay to the Executive an
annual salary ("Base Compensation") of $350,000, payable in equal installments
pursuant to the Company's customary payroll procedures in effect for its
executive personnel at the time of payment, but in no event less frequently than
monthly, subject to withholding for applicable federal, state, and local income
and employment related taxes. The Executive may be entitled to such increases in
Base Compensation with respect to each calendar year during the term of this
Agreement, as shall be
2
determined by the Company's Compensation Committee (the "Committee"), in its
sole and absolute discretion, based on an annual review of the Executive's
performance .
(b) Incentive Compensation. In addition to Base Compensation, the
Executive may be entitled to receive additional compensation ("Incentive
Compensation") in the discretion of the Committee. The Incentive Compensation
shall be pursuant to short-term and/or long-term incentive compensation programs
which currently exist or may be established by the Company. For purposes of this
Agreement, the Executive's "Pro Rata Share" of Incentive Compensation for any
calendar of the Company shall be a fraction whose numerator shall be equal to
the number of months (or parts of months) during which the Executive was
actually employed by the Company during any such calendar year and whose
denominator shall be the total number of months in such calendar year.
4. Employee Benefits. During the Employment Term and subject to the
limitations set forth in this Section 4, the Executive and his eligible
dependents shall have the right to participate in any retirement plans
(qualified and non-qualified), pension, insurance, health, disability or other
benefit plan or program that has been or is hereafter adopted by the Company (or
in which the Company participates), according to the terms of such plan or
program, on terms no less favorable than the most favorable terms granted to
senior executives of the Company.
5. Vacation and Leaves of Absence. The Executive shall be entitled to the
normal and customary amount of paid vacation provided to senior executive
officers of the Company, but in no event less than 20 days during each 12 month
period, beginning on the Commencement Date of this Agreement. Any vacation days
that are not taken in a given 12 month period shall not accrue or carry-over
from year to year. Upon any termination of this Agreement for any reason
whatsoever, accrued and unused vacation for the year in which this Agreement
terminates will be paid to the Executive within 10 days of such termination
based on his annual rate of Base Compensation in effect on the date of such
termination. In addition, the Executive may be granted leaves of absence with or
without pay for such valid and legitimate reasons as the Company in its sole and
absolute discretion may determine, and the Executive shall be entitled to the
same sick leave and holidays provided to other senior executives of the Company.
3
6. Expenses.
(a) Business Expenses. The Executive shall be promptly reimbursed
against presentation of vouchers or receipts for all reasonable and necessary
expenses incurred by him in connection with the performance of his duties
hereunder.
(b) Automobile Expense. During the Employment Term, in order to
facilitate the performance of the Executive's duties hereunder, and otherwise
for the convenience of the Company, the Company shall provide the Executive with
an automobile, or shall reimburse the Executive for the cost of leasing an
automobile (provided that the lease payments with respect to such automobile
shall not exceed $1,000 per month) and shall pay or reimburse Executive (upon
presentation of vouchers or receipts) for the reasonable cost of all
maintenance, insurance, repairs, and other reasonable expenses related to such
automobile.
7. Indemnification.
(a) General. The Company agrees that if the Executive is made a
party or is threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that he is or was a director or officer of the Company, is or
was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including, without limitation, service with respect
to employee benefit plans, whether or not the basis of such Proceeding is
alleged action in an official capacity as a director, officer, member, employee
or agent while serving as a director, officer, member, employee or agent, the
Executive shall be indemnified and held harmless by the Company to the fullest
extent authorized by applicable law (in accordance with the certificate of
incorporation and/or bylaws of the Company), as the same exists or may hereafter
be amended, against all Expenses (as defined below) incurred or suffered by the
Executive in connection therewith, and such indemnification shall continue as to
the Executive even if the Executive has ceased to be an officer, director or
agent, or is no longer employed by the Company and shall inure to the benefit of
his heirs, executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, losses, judgments, liabilities, fines,
penalties, excise taxes, settlements and costs, attorneys' fees, accountants'
fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this
4
Agreement.
(c) Enforcement. If a claim or request under this Agreement is not
paid by the Company, or on their behalf, within fifteen days after a written
claim or request has been received by the Company, the Executive may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, the Executive shall be
entitled to be paid also the expenses of prosecuting such suit. The burden of
proving that the Executive is not entitled to indemnification for any reason
shall be upon the Company.
(d) Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Executive.
(e) Partial Indemnification. If the Executive is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Executive for the portion of such
Expenses to which the Executive is entitled.
(f) Advances of Expenses. Expenses incurred by the Executive in
connection with any Proceeding shall be paid by the Company in advance upon
request of the Executive that the Company pay such Expenses.
(g) Notice of Claim. The Executive shall give to the Company notice
of any claim made against his for which indemnity will or could be sought under
this Agreement. In addition, the Executive shall give the Company such
information and cooperation as it may reasonably require and as shall be within
the Executive's power and at such times and places as are convenient for the
Executive.
(h) Defense of Claim. With respect to any Proceeding as to which the
Executive notifies the Company of the commencement thereof: (i) the Company will
be entitled to participate therein at its own expense; and (ii) except as
otherwise provided below, to the extent that it may wish, the Company jointly
with any other indemnifying party similarly notified will be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the Executive. The
Company shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Company or as to which the Executive
shall have reasonably concluded that there may be a conflict of interest between
the Company and the Executive in the conduct of the defense of such action.
5
The Company shall not be liable to indemnify the Executive
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any action or
claim in any manner which would impose any penalty or limitation on the
Executive without Executive's written consent. Neither the Company nor the
Executive shall unreasonably withhold or delay their consent to any proposed
settlement.
(i) Non-exclusivity. The right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final disposition
conferred in this Section 7 shall not be exclusive of any other right which the
Executive may have or hereafter may acquire under any statute, provision of the
certificate of incorporation or by-laws of the Company, agreement, vote of
stockholders or disinterested directors or otherwise.
(j) Directors and Officers Liability Policy. The Company agrees to
use reasonable efforts to maintain directors and officers liability insurance
covering the Executive in a reasonable and adequate amount determined by the
Company.
8. Termination and Termination Benefits.
(a) Termination by the Company.
(i) For Cause. Notwithstanding any provision contained herein,
the Company may terminate this Agreement at any time during the Employment Term
for "Cause". For purposes of this subsection 8(a)(i), "Cause" shall mean (1) the
continuing willful failure by the Executive to substantially perform his duties
hereunder for any reason other than total or partial incapacity due to physical
or mental illness, or (2) gross negligence or gross malfeasance on the part of
the Executive in the performance of his duties hereunder that causes material
harm to the Company. Termination pursuant to this subsection 8(a)(i) shall be
effective immediately upon giving the Executive written notice thereof stating
the reason or reasons therefor with respect to clauses (2) and (3) above, and 15
days after written notice thereof from the Company to the Executive specifying
the acts or omissions constituting the failure and requesting that they be
remedied with respect to clause (1) above, but only if the Executive has not
cured such failure within such 15 day period. In the event of a termination
pursuant to this subsection 8(a)(i), the Executive shall be entitled to payment
of his Base Compensation and the benefits pursuant to Section 4 hereof up to the
effective date of such termination and it is also the intention and agreement of
the Company that Executive shall not be deprived by reason of termination for
Cause of any payments, options or
6
benefits which have been vested or have been earned or to which Executive is
entitled as of the effective date of such termination.
(ii) Disability. If due to illness, physical or mental
disability, or other incapacity, the Executive shall fail, for a total of any
six consecutive months ("Disability"), to substantially perform the principal
duties required by this Agreement, the Company may terminate this Agreement upon
30 days' written notice to the Executive. In such event, the Executive shall be
(1) paid his Base Compensation until the Termination Date and his Pro Rata Share
of any Incentive Compensation to which he would have been entitled for the year
in which such termination occurs, and (2) provided with employee benefits
pursuant to Section 4, to the extent available, for the remainder of the
Employment Term; provided, however, that any compensation to be paid to the
Executive pursuant to this subsection 8(a)(ii) shall be offset against any
payments received by the Executive pursuant to any policy of disability
insurance the premiums of which are paid for by the Company.
(b) Termination Without Cause or Termination For Good Reason. The
Company may terminate the Executive's employment hereunder without Cause and the
Executive may terminate his employment hereunder for "Good Reason" (as defined
below). If the Company terminates the Executive's employment hereunder without
Cause, other than due to death or Disability, or if the Executive terminates his
employment for Good Reason, the Executive shall be paid: (i) his Base
Compensation at the rate in effect at the time of termination through the
Termination Date; (ii) his Pro Rata Share of any Incentive Compensation to which
he would have been entitled for the year in which such termination occurs; (iii)
a lump sum payment equal to the product of thirty-six (36) times the "Monthly
Salary Amount"; (iv) any deferred compensation (including, without limitation,
interest or other credits on the deferred amounts) and any accrued vacation pay;
(v) continuation until the expiration of the Employment Term and for twelve
months thereafter, of the health and welfare benefits of the Executive and any
long-term disability insurance generally provided to senior executives of the
Company (as provided for by Section 4 of this Agreement) (or the Company shall
provide the economic equivalent thereof); provided, however, if the Executive
obtains new employment and such employment makes the Executive eligible for
health and welfare or long-term disability benefits which are equal to or
greater in scope then the benefits then being offered by the Company, then the
Company shall no longer be required to
7
provide such benefits to the Executive; and (vi) any other compensation and
benefits as may be provided in accordance with the terms and provisions of any
applicable plans or programs of the Company.
As used herein, "Monthly Salary Amount" shall mean an amount equal
to one-twelfth of the sum of (y) the Executive's then current annual Base Salary
plus (z) the average cash incentive compensation paid to the Executive during
the three years immediately preceding the termination date.
As used herein, "Good Reason" means and shall be deemed to exist if,
without the prior express written consent of the Executive, (a) the Company
breaches this Agreement in any material respect; (b) the Company fails to obtain
the full assumption of this Agreement by a successor; (c) the Company fails to
use its reasonable best efforts to maintain, or cause to be maintained directors
and officers liability insurance coverage for the Executive; (d) the Company
purports to terminate the Executive's employment for Cause and such purported
termination of employment is not effected in accordance with the requirements of
this Agreement, or (e) a Change in Control shall have occurred; provided,
however, that with respect to items (a) through (d) above, within 30 days of
written notice of termination by the Executive, the Company has not cured, or
commenced to cure, such failure or breach, and with respect to item (e) above,
the Executive shall have provided the Company with 180 days written notice of
such termination.
For purposes of this Agreement, a "Change of Control" shall mean (1)
any merger by the Company into another corporation or corporations which results
in the stockholders of the Company immediately prior to such transaction owning
less than 55% of the surviving Corporation; (2) any acquisition (by purchase,
lease or otherwise) of all or substantially all of the assets of the Company by
any person, corporation or other entity or group thereof acting jointly; (3) the
acquisition of beneficial ownership, directly or indirectly, of voting
securities of the Company (defined as Common Stock of the Company or any
securities having voting rights that the Company may issue in the future) and
rights to acquire voting securities of the Company (defined as including,
without limitation, securities that are convertible into voting securities of
the Company (as defined above) and rights, options warrants and other agreements
or arrangements to acquire such voting securities) by any person, corporation or
other entity or group thereof acting jointly, in such amount or amounts as would
permit such person, corporation or other entity or group thereof acting jointly
to
8
elect a majority of the members of the Board of the Company, as then
constituted; or (4) the acquisition of beneficial ownership, directly or
indirectly, of voting securities and rights to acquire voting securities having
voting power equal to 25% or more of the combined voting power of the Company's
then outstanding voting securities by any person, corporation or other entity or
group thereof acting jointly unless such acquisition as is described in this
part (4) is expressly approved by resolution of the Board of the Company passed
upon affirmative vote of not less than a majority of the Board and adopted at a
meeting of the Board held not later than the date of the next regularly
scheduled or special meeting held following the date the Company obtains actual
knowledge of such acquisition (which approval may be limited in purpose and
effect solely to affecting the rights of Employee under this Agreement).
Notwithstanding the preceding sentence, (i) any transaction that involves a mere
change in identity form or place of organization within the meaning of Section
368(a)(1)(F) of the Internal Revenue Code of 1986, as amended, or a transaction
of similar effect, shall not constitute a Change in Control.
(c) Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided or maintained by the
Company and for which the Executive may qualify, nor shall anything herein limit
or otherwise prejudice such rights as the Executive may have under any other
existing or future agreements with the Company. Except as otherwise expressly
provided for in this Agreement, amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plans or programs of the
Company at or subsequent to the date of termination shall be payable in
accordance with such plans or programs.
(d) Vesting of Stock Grants and Stock Options. In the event of any
termination of this Agreement, Executive's rights with regard to any stock
grants, loan agreements or stock options shall be as set forth in the respective
agreement containing the terms and conditions pertaining thereto.
Notwithstanding the foregoing, in the event that the Executive is terminated for
reasons other than for "Cause" or in the event the Executive terminates this
Agreement for "Good Reason", any stock options then held by the Executive shall
immediately vest in the Executive and shall remain exercisable for the period
specified in the grant agreement notwithstanding any provision therein to the
contrary.
9
(e) Certain Additional Payments by the Company. Anything in this
Agreement to the contrary notwithstanding, in the event that it shall be
determined that any payment or distribution by the Company to or for the benefit
of the Executive, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (a "Payment"), would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986 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 an additional payment (an "Excise Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax imposed upon the Excise Gross-Up Payment and any ordinary income tax on the
Excise Gross-Up Payment in order to put the Executive in the same net after-tax
position as if the payment were not subject to any Excise Tax. Subject to the
provisions of this Section 8(e), all determinations required to be made
hereunder, including whether an Excise Gross-Up Payment is required and the
amount of such Excise Gross-Up Payment, shall be made by PricewaterhouseCoopers
LLP or such other accounting firm which at the time audits the financial
statements of the Company (the "Accounting Firm") at the sole expense of the
Company, which shall provide detailed supporting calculations both to the
Company and the Executive within 15 business days of the date of termination of
the Executive's employment under this Agreement, if applicable, or such earlier
time as is requested by the Company.
(f) Death Benefit. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of the Executive's death.
In such event the Company shall continue to pay Executive's Base Compensation to
his wife, if she survives him, or, if she does not survive him, to his estate,
through the end of the twelfth month following the month in which such death
occurs. In addition, the Company shall pay to Executive's wife, if she survives
him, or, if she does not survive him, to his estate, the Pro Rata Share of any
Incentive Compensation to which Executive would have been entitled for the year
in which such death occurs.
If the Accounting Firm determines that no Excise Tax is payable by
the Executive, the Company shall use its reasonable best efforts to cause the
Accounting Firm to furnish the Executive with an opinion that he has substantial
authority not to report any Excise Tax on his federal income tax return. Any
determination by the Accounting Firm shall be binding upon the Company and the
10
Executive. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Excise Gross-Up Payments, which will not have
been made by the Company, should have been made (an "Underpayment") consistent
with the calculations required to be made hereunder. If the Company exhausts its
remedies pursuant hereto and the Executive thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of the Executive.
The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Excise Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the Executive knows 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 it 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: (i) give the Company
any information reasonably requested by the Company relating to such claim; (ii)
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; (iii) cooperate with the Company in good
faith to contest effectively such claim; and (iv) permit the Company to
participate in any proceedings relating to such claim; provided 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 limitation on the foregoing provisions hereof 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 may, at
its sole option, either direct the Executive to pay the
11
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 any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine, provided 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
thereto, 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
Gross-Up 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 Internal
Revenue Service or any other taxing authority.
If, after the receipt by the Executive of an amount advanced by the
Company pursuant hereto, 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 hereof) promptly pay to the Company the amount
of such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant hereto, 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 Gross-Up Payment required to be paid.
(g) Termination Payment. In the event Company does not elect to
extend the Employment Term as provided for in Section 2 hereof, in consideration
for the post-employment covenant against competition set forth in Section 10
hereof, the Executive shall be entitled to a lump-sum payment equal to the
product of twenty-four times the Monthly Salary Amount.
(h) Payment. Except as otherwise provided in this Agreement, any
payments to which the Executive shall be entitled under this Section 8,
including, without limitation, any
12
economic equivalent of any benefit, shall be made as promptly as possible
following the date of termination. If the amount of any payment due to the
Executive cannot be finally determined within 90 days after the Date of
Termination, such amount shall be estimated on a good faith basis by the Company
and the estimated amount shall be paid no later than 90 days after such Date of
Termination. As soon as practicable hereafter, the final determination of the
amount due shall be made and any adjustment requiring a payment to or from the
Executive shall be made as promptly as practicable.
(i) No Mitigation. The Executive shall not be required to mitigate
the amount of any payments provided for by this Agreement by seeking employment
or otherwise, nor shall the amount of any payment or benefit provided in this
Agreement be reduced by any compensation or benefit earned by the Executive
after termination of his employment.
9. Company Property. All advertising, promotional, sales, suppliers,
manufacturers and other materials or articles or information, including without
limitation data processing reports, customer lists, customer sales analyses,
invoices, product lists, price lists or information, samples, or any other
materials or data of any kind furnished to the Executive by the Company or
developed by the Executive on behalf of the Company or at the Company's
direction or for the Company's use or otherwise in connection with the
Executive's employment hereunder, are and shall remain the sole and confidential
property of the Company; if the Company requests the return of such materials at
any time during or at or after the termination of the Executive's employment,
the Executive shall immediately deliver the same to the Company.
10. Covenant Not To Compete.
(a) Covenants Against Competition. The Executive acknowledges that
as of the execution of this Employment Agreement (i) the Company is engaged in
the business of providing sales and marketing and marketing research services to
the pharmaceutical and biotechnology industries (the "Business"); (ii) the
Company's Business is conducted currently throughout the United States and may
be expanded to other locations; (iii) his employment with the Company will have
given him access to confidential information concerning the Company; and (iv)
the agreements and covenants contained in this Agreement are essential to
protect the business and goodwill of the Company. Accordingly, the Executive
covenants and agrees as follows:
13
(i) Non-Compete. Without the prior written consent of the
Board of the Company, the Executive shall not during the Restricted Period (as
defined below) within the Restricted Area (as defined below) (except in the
Executive's capacity as an officer of the Company or any of its affiliates), (a)
engage or participate in the Business; (b) enter the employ of, or render any
services (whether or not for a fee or other compensation) to, any person engaged
in the Business; or (c) acquire an equity interest in any such person; provided,
that the foregoing restrictions shall not apply at any time if the Executive's
employment is terminated during the Term by the Executive for Good Reason (as
defined in Section 8(b) below) or by the Company other than for "Cause";
provided, further, that during the Restricted Period the Executive may own,
directly or indirectly, solely as a passive investment, securities of any
company traded on any national securities exchange or on the National
Association of Securities Dealers Automated Quotation System.
As used herein, "Restricted Period" shall mean the period
commencing on the Effective Date and ending on the second anniversary of the
Executive's termination of employment.
"Restricted Area" shall mean any place within the United
States and any other country in which the Company is then actively considering
conducting Business.
(b) Confidential Information; Personal Relationships. The Executive
acknowledges that the Company has a legitimate and continuing proprietary
interest in the protection of its confidential information and has invested
substantial sums and will continue to invest substantial sums to develop,
maintain and protect confidential information. The Executive agrees that, during
and after the Restricted Period, without the prior written consent of the Board,
the Executive shall keep secret and retain in strictest confidence, and shall
not knowingly use for the benefit of himself or others all confidential matters
relating to the Company's Business including, without limitation, operational
methods, marketing or development plans or strategies, business acquisition
plans, joint venture proposals or plans, and new personnel acquisition plans,
learned by the Executive heretofore or hereafter (such information shall be
referred to herein collectively as "Confidential Information"); provided, that
nothing in this Agreement shall prohibit the Executive from disclosing or using
any Confidential Information (A) in the performance of his duties hereunder, (B)
as required by applicable law, (C) in connection with the enforcement of his
rights under this Agreement or any other agreement with the Company, or (D) in
connection with the defense or settlement of any claim, suit or action brought
or threatened against the Executive by or in
14
the right of the Company. Notwithstanding any provision contained herein to the
contrary, the term Confidential Information shall not be deemed to include any
general knowledge, skills or experience acquired by the Executive or any
knowledge or information known or available to the public in general. Moreover,
the Executive shall be permitted to retain copies of, or have access to, all
such Confidential Information relating to any disagreement, dispute or
litigation (pending or threatened) involving the Executive.
(c) Employees of the Company and its Affiliates. During the
Restricted Period, without the prior written consent of the Board of the
Company, the Executive shall not, directly or indirectly, hire or solicit, or
cause others to hire or solicit, for employment by any person other than the
Company or any affiliate or successor thereof, any employee of, or person
employed within the two years preceding the Executive's hiring or solicitation
of such person by, the Company and its affiliates or successors or encourage any
such employee to leave his employment. For this purpose, any person whose
employment has been terminated involuntarily by the Company shall be excluded
from those persons protected by this Section for the benefit of the Company.
(d) Business Relationships. During the Restricted Period, the
Executive shall not, directly or indirectly, request or advise a person that has
a business relationship with the Company to curtail or cancel such person's
business relationship with the Company.
(e) Rights and Remedies Upon Breach. If the Executive breaches,
threatens to commit a breach of, any of the provisions contained in Section 10
of this Agreement (the "Restrictive Covenants"), the Company shall have the
following rights and remedies, each of which rights and remedies shall be
independent of the others and severally enforceable, and each of which is in
addition to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity.
(i) Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury to the Company and that
money damages would not provide an adequate remedy to the Company.
(ii) Accounting. The right and remedy to require the Executive
to account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other
15
benefits derived or received by the Executive as the result of any action
constituting a breach of Restrictive Covenants.
(f) Severability of Covenants. The Executive acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in duration and
geographical scope and in all other respects. If any court determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect without regard to the invalid portions. The
provisions set forth in Section 10 above shall be in addition to any other
provisions of the business conduct and ethics policy applicable to employees of
the Company and its subsidiaries during the term of Executive's employment.
(g) Saving Clause. If the period of time or the area specified in
subsection (a) above should be adjudged unreasonable in any proceeding, then the
period of time shall be reduced by such number of months or the area shall be
reduced by the elimination of such portion thereof or both so that such
restrictions may be enforced in such area and for such time as is adjudged to be
reasonable. If the Executive violates any of the restrictions contained in the
foregoing subsection (a), the restrictive period shall not run in favor of the
Executive from the time of the commencement of any such violation until such
time as such violation shall be cured by the Executive to the satisfaction of
Company.
11. Executive's Representation and Warranties. Executive represents and
warrants that he has the full right and authority to enter into this Agreement
and fully perform his obligations hereunder, that he is not subject to any
non-competition agreement other than with the Company, and that his past,
present and anticipated future activities have not and will not infringe on the
proprietary rights of others. Executive further represents and warrants that he
is not obligated under any contract (including, but not limited to, licenses,
covenants or commitments of any nature) or other agreement or subject to any
judgment, decree or order of any court or administrative agency which would
conflict with his obligation to use his best efforts to perform his duties
hereunder or which would conflict with the Company's business and operations as
presently conducted or proposed to be conducted. Neither the execution nor
delivery of this Agreement, nor the carrying on of the Company's business as
officer and employee by Executive will conflict with or result in a breach of
16
the terms, conditions or provisions of or constitute a default under any
contract, covenant or instrument to which Executive is currently a party.
12. Miscellaneous.
(a) Integration; Amendment. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior
understandings and agreements between the parties with respect to the matters
set forth herein, including, but not limited to, the Employment Agreement
between the Executive and the Company, dated as of January 1, 1997. No
amendments or additions to this Agreement shall be binding unless in writing and
signed by both parties.
(b) Severability. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable law or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited, or invalid, but the remainder of this Agreement shall not be invalid
and shall be given full force and effect so far as possible.
(c) Waivers. The failure or delay of any party at any time to
require performance by the other party of any provision of this Agreement, even
if known, shall not affect the right of such party to require performance of
that provision or to exercise any right, power, or remedy hereunder, and any
waiver by any party of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right, power, or
remedy under this Agreement. No notice to or demand on any party in any case
shall, of itself, entitle such party to other or further notice or demand in
similar or other circumstances.
(d) Power and Authority. The Company represents and warrants to the
Executive that it has the requisite corporate power to enter into this Agreement
and perform the terms hereof; that the execution, delivery and performance of
this Agreement by it has been duly authorized by all appropriate corporate
action; and that this Agreement represents the valid and legally binding
obligation of the Company and is enforceable against it in accordance with its
terms.
(e) Burden and Benefit; Survival. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, personal and legal representatives, successors and assigns. In
addition to, and not in limitation of, anything contained in
17
this Agreement, it is expressly understood and agreed that the Company's
obligation to pay Termination Compensation as set forth herein shall survive any
termination of this Agreement.
(f) Governing Law; Headings. This Agreement and its construction,
performance, and enforceability shall be governed by, and construed in
accordance with, the laws of the State of New Jersey. Headings and titles herein
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
(g) Arbitration; Remedies. Any dispute or controversy arising under
this Agreement or as a result of or in connection with Executive's employment
(other than disputes arising under Section 10) shall be arbitrated and settled
pursuant to the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association which are then in effect in a proceeding held
in Bergen County, New Jersey. This provision shall also apply to any and all
claims that may be brought under any federal or state anti-discrimination or
employment statute, rule or regulation, including, but not limited to, claims
under: the National Labor Relations Act; Title VII of the Civil Rights Act;
Sections 1981 through 1988 of Title 42 of the United States Code; the Employee
Retirement Income Security Act; the Immigration Reform and Control Act; the
Americans With Disabilities Act; the Age Discrimination in Employment Act; the
Fair Labor Standards Act; the Occupational Safety and Health Act; the Family and
Medical Leave Act; and the Equal Pay Act. The decision of the arbitrator and
award, if any, is final and binding on the parties and the judgment may be
entered in any court having jurisdiction thereof. The parties will agree upon an
arbitrator from the list of labor arbitrators supplied by the American
Arbitration Association. The parties understand and agree, however, that
disputes arising under Section 10 of this Agreement may be brought in a court of
law or equity without submission to arbitration.
(h) Jurisdiction. Except as otherwise provided for herein, each of
the parties (a) submits to the exclusive jurisdiction of any state court sitting
in Bergen County, New Jersey or federal court sitting in New Jersey in any
action or proceeding arising out of or relating to this Agreement, (b) agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court, (c) agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court and (d) waives
any right such party may have to a trial by jury with respect to any action or
proceeding arising out of or relating to this Agreement. Each of the parties
waives any defense of inconvenient forum to the maintenance of any action or
proceeding
18
so brought and waives any bond, surety or other security that might be required
of any other party with respect thereto. Any party may make service on another
party by sending or delivering a copy of the process to the party to be served
at the address and in the manner provided for giving of notices in Section
12(i). Nothing in this Section, however, shall affect the right of any party to
serve legal process in any other manner permitted by law.
(i) Notices. All notices called for under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally or by
confirmed facsimile transmission and followed promptly by mail, or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at their respective addresses (or at such other address for a party as
shall be specified by like notice; provided that notices of a change of address
shall be effective only upon receipt thereof) as set forth in the preamble to
this Agreement or to any other address or addressee as any party entitled to
receive notice under this Agreement shall designate, from time to time, to
others in the manner provided in this subsection 12(i) for the service of
notices.
Any notice delivered to the party hereto to whom it is addressed
shall be deemed to have been given and received on the day it was received;
provided, however, that if such day is not a business day then the notice shall
be deemed to have been given and received on the business day next following
such day. Any notice sent by facsimile transmission shall be deemed to have been
given and received on the business day next following the day of transmission.
(j) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday on which federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
19
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
------------------------------------
XXXXXXX X. XXXXXXXXX
PDI, INC.
By:
----------------------------------
Xxxxxxx X. Xxxxx
Chief Financial Officer
20
