Exhibit 10.34
September 7, 1999
CONFIDENTIAL
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Xxxxxxx X. XxXxxxxx
0000 Xxxx Xxx., Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxx:
This letter agreement (this "Agreement") formalizes the agreement that we
have reached regarding your voluntary resignation from all positions you hold
(whether as an officer or employee) with Boron, XxXxxx & Associates, Inc. (the
"Company") as of September 7, 1999 (the "Resignation Date"). The purpose of
this Agreement is to establish an amicable arrangement for ending your
employment relationship. For purposes of this Agreement, all references to the
"Company" shall include Boron, XxXxxx & Associates, Inc., a Delaware
corporation, and any of its subsidiaries. Reference is made to the Employment
Agreement between you and the Company dated June 21, 1999 (the "Employment
Agreement"). Capitalized terms used herein and not defined shall have the
meaning set forth in the Employment Agreement. Except as set forth herein, this
Agreement supersedes the Employment Agreement and the Employment Agreement is of
no further force or effect.
In exchange for the promises of you and the Company set forth below, you
and the Company agree as follows:
A. TERMINATION OF EMPLOYMENT. As of September 7, 1999 you hereby resign as
Corporate Executive Vice President of Boron, XxXxxx & Associates, Inc. and from
any other positions currently held by you with Boron, XxXxxx & Associates, Inc.
or any of its subsidiaries. Said resignations are hereby accepted by the
Company.
X. XXXXXXXXX; COMPENSATION. You shall not be entitled to any additional
payments from the Company relating to your employment with the Company or the
termination thereof after September 7, 1999. The Company will provide you with
the salary, compensation and benefits set forth in the Employment Agreement
through September 7, 1999.
PGL ____ TJM ____
Xxxxxxx X. XxXxxxxx
September 7, 1999
Page 2
C. STOCK OPTIONS. Notwithstanding any provision to the contrary contained in
the stock option agreements between you and the Company or the governing stock
option plan (collectively, the "Option Agreements"), all options to purchase
shares of Common Stock held by you which are unvested as of September 7, 1999
shall terminate as of September 7, 1999, and you will have the period of time
following the Resignation Date specified in the Option Agreements and the
governing stock option plan to exercise such stock options which have vested as
of September 7, 1999.
D. NON-COMPETITION; CONFIDENTIALITY. You hereby acknowledge that until
September 7, 2000, you are still subject to the terms and covenants contained in
Section 8 of the Employment Agreement by and between you and the Company, at
which time such terms shall be of no further force or effect. Notwithstanding
the foregoing sentence, after the date of this Agreement, (i) you shall be
permitted to provide services to the pharmaceutical industry, provided, however,
that such services are not competitive with the business, activities, products
or services conducted or offered by the Company or its subsidiaries as of the
date hereof, and (ii) after the date which is 90 days after the date hereof (or
such earlier time as the Company may agree), you shall be permitted to hire or
engage and attempt to hire the following individuals: Xxxxx XxXxxxxx; Xxxxx
Xxxxxxx; Xxxxxxxx Xxxxx; Xxxxx Xxxxx and Xxxxxx Xxxxx. You hereby reaffirm and
readopt all of the terms and covenants of Sections 7 and 9 of the Employment
Agreement as if they were completely restated herein. Except as set forth in
this paragraph D, the Employment Agreement is hereby terminated and of no
further force and effect.
E. RETURN OF PROPERTY. You hereby acknowledge that all documents, records,
materials, software, equipment, credit cards, information and other physical or
intellectual property that have come into your possession or been produced or
created by you in connection with your employment with or for the Company
("Property") have been and remain the sole property of the Company. You hereby
acknowledge that you have returned to the Company all such Property or will have
returned all such Property on or prior to September 7, 1999.
F. LITIGATION COOPERATION. You agree to reasonably cooperate with the Company
in (i) the defense, prosecution or investigation of any claims or actions which
already have been brought or threatened, or which may be brought or threatened
in the future against or on behalf of the Company and its affiliates and (ii)
responding to, cooperating with, or contesting any governmental audit,
inspection, inquiry or investigation, in either case that relate to events or
PGL ____ TJM ____
Xxxxxxx X. XxXxxxxx
September 7, 1999
Page 3
occurrences that transpired during your employment or association with the
Company; provided, however, that such cooperation shall not materially and
adversely affect you or expose you to an increased probability of civil or
criminal litigation. Your full cooperation in connection with such claims or
actions shall include, without implication of limitation: being available to
meet with counsel to prepare for discovery or trial; to testify truthfully as a
witness when reasonably requested and at reasonable times designated by the
Company; and to meet with counsel or other designated representative of the
Company to prepare responses to and to cooperate with the Company's processing
of governmental audits, inspections, inquiries or investigations. You agree
that you will maintain the confidences and privileges of the Company. You will
be reimbursed by the Company for any reasonable out-of-pocket expenses that you
reasonably incur in connection with such cooperation, including but not limited
to reasonable attorneys' fees and expenses, subject to reasonable and
satisfactory documentation. The Company will also provide you with compensation
on an hourly basis calculated based upon your base salary as of September 7,
1999 (calculated by taking such salary and dividing by 48 weeks of 40 hours) for
requested litigation and regulatory cooperation. The Company will not exercise
their rights under this paragraph so as to interfere with your ability to engage
in gainful employment and shall endeavor to schedule your responsibilities
hereunder so as not to interfere with your schedule so long as you promptly
provide timely alternative dates on which you can fulfill your obligations
hereunder.
G. NON-DISPARAGEMENT AND COOPERATION DURING TRANSITION. Each of us agrees not
to make or cause to be made, directly or indirectly, any statement to any person
criticizing or disparaging the other or any of the Company's stockholders,
directors, officers or employees or commenting unfavorably or falsely on the
character, business judgment, business practices or business reputation of the
other or any of the Company's stockholders, directors, officers or employees.
You agree that from the date of your receipt of this Agreement, you will
cooperate fully with the Company in arranging for an orderly and professional
transition of your responsibilities. Each of us further agrees that he or it
will present the circumstances of your departure in a light that will not
reflect unfavorably on you or the Company.
H. MISCELLANEOUS.
You are advised to consult with an attorney before signing this Agreement.
PGL ____ TJM ____
Xxxxxxx X. XxXxxxxx
September 7, 1999
Page 4
By signing this Agreement, you acknowledge that you are doing so
voluntarily and only after consultation with your personal attorney. You also
acknowledge that you are not relying on any representations by the undersigned
or any other representative of the Company concerning the meaning of any aspect
of this Agreement other than as set forth in this Agreement.
In the event of any dispute, this Agreement will be construed as a whole,
will be interpreted in accordance with its fair meaning, and will not be
construed strictly for or against either you or the Company. The laws of
Delaware will govern any dispute about this Agreement, including any
interpretation or enforcement of this Agreement. In the event that any
provision or portion of a provision of this Agreement shall be determined to be
unenforceable, the remainder of this Agreement shall be enforced to the fullest
extent possible as if such provision or portion of a provision were not
included. This Agreement may be modified only by a written agreement signed by
you and an authorized representative of the Company.
In the event of a dispute between the parties concerning their respective
rights and obligations under this Agreement or under any stock option agreement
to which you and the Company are party, that the parties are unable to resolve
amicably between themselves within sixty (60) days of proper notice from one
party to another, such dispute shall be settled by arbitration in the State of
New Jersey in an expedited manner in accordance with the Commercial Rules of the
American Arbitration Association by a duly registered arbitrator to be selected
jointly by the parties. The decision of the arbitrator shall be final and
binding upon the parties. Notwithstanding anything to the contrary herein, the
provisions of this paragraph shall not apply to any equitable remedies to which
any party may be entitled.
Notwithstanding the foregoing, it is specifically understood and agreed
that any breach of the provisions of Sections D and F hereof is likely to result
in irreparable injury to the nonbreaching party and/or its affiliates, that the
remedy at law alone will be an inadequate remedy for such breach and that, in
addition to any other remedy it may have, the nonbreaching party shall be
entitled to enforce the specific performance of Sections D and F of this
Agreement and to seek both temporary and permanent injunctive relief (to the
extent permitted by law).
PGL ____ TJM ____
Xxxxxxx X. XxXxxxxx
September 7, 1999
Page 5
All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed by overnight
mail (with receipt acknowledgment received), delivered personally or mailed by
certified or registered mail (return receipt requested) as follows:
To the Company: Boron, XxXxxx & Associates, Inc.
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. XxXxxx, President and CEO
To the Employee: Xxxxxxx X. XxXxxxxx
0000 Xxxx Xxx., Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
or to such other address of which any party may notify the other parties as
provided above. Notices shall be effective as of the date of delivery.
The Company is executing this Agreement with you on behalf of itself and
each of its subsidiaries and hereby represents to you that the execution and
delivery of this Agreement by the Company and the performance of the Company's
obligations hereunder have been duly authorized by all necessary action on the
part of the Company.
If you agree to these terms, please sign and date below and return this
Agreement to the undersigned within the time limitation set forth above.
Sincerely,
BORON, XXXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: Chief Executive Officer
ACCEPTED AND AGREED TO:
PGL ____ TJM ____
Xxxxxxx X. XxXxxxxx
September 7, 1999
Page 6
/s/ Xxxxxxx X. XxXxxxxx
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Xxxxxxx X. XxXxxxxx
Dated:
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