Exhibit 10.33
February 24, 2000
CONFIDENTIAL
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Xxxxxx X. Xxxxxxxx
0 Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Dear Xxxxx:
This amended and restated 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 October 31, 2000 (the "Resignation
Date"). This Agreement amends and restates in its entirety the terms of the
agreement dated December 13, 1999 regarding the same subject matter. 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 March 1, 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 March 31, 2000 you hereby resign as
Corporate Executive Vice President, Chief Financial Officer, Treasurer and
Secretary of Boron, XxXxxx & Associates, Inc. and from any other officer
positions currently held by you with Boron, XxXxxx & Associates, Inc. or any of
its subsidiaries. You shall remain employed, as an employee and not as an
independent contractor, by the Company as a Special Assistant for Strategic
Planning and Business Intelligence ("Special Assistant") from April 1, 2000
until the Resignation Date, at which date you agree to voluntary resign and
terminate your employment from all positions and service relationships you hold
with the Company, unless you and the
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Company mutually agree in writing to extend such date. Said resignations are
hereby accepted by the Company. The Company hereby agrees that your employment
as Special Assistant shall require no more than forty (40) hours per month
unless you agree to increase such hours. Travel time and time spent in
litigation cooperation under G, below, or under the Advancement Agreement (even
if necessary for your own defense in litigation where the Company is also a
defendant) shall be included when calculating such hours. Time you agree to work
in excess of 40 hours per month in this position will be compensated at a rate
to be set on a case by case basis by mutual agreement. Notwithstanding any
termination of your employment by the Company prior to October 31, 2000, in the
event of any such termination you shall continue to be entitled to receive all
of the benefits provided under this Agreement as if you had remained employed by
the Company through October 31, 2000. In addition, in the event of termination
by the Company, your death or disability, in each case prior to October 31,
2000, you will be entitled to a lump sum payment of $125,000.
X. XXXXXXXXX; COMPENSATION. The Company shall continue to make payments in
the amount of your Base Salary (as subsequently raised to $250,000) from
December 13, 1999 until March 31, 2000. During the period from April 1, 2000
through October 31, 2000 you will be employed by the Company as a Special
Assistant for Strategic Planning and Business Intelligence and receive monthly
salary payments of $5,000, provided, however, that if you terminate your
employment for any reason during this period, including if you terminate your
employment due to your death or disability, you will no longer receive such
$5,000 payments. Notwithstanding any early termination as Special Assistant for
Strategic Planning and Business Intelligence, during the period from April 1,
2000 until March 31, 2001, you will receive payments equal to your Base Salary
as of the date hereof. You shall also receive $100,000 as your bonus for 1999
and $125,000, the full amount of your target bonus set for 2000, when such
bonuses would otherwise be paid, but in no event later than January 31, 2001.
In the event the Company breaches this Agreement, the Company shall not be
entitled to offset any amounts payable for income or benefits you receive from
other sources. In consideration of these payments, you are hereby delivering to
the Company in paragraph I hereto a release of claims, and you agree, as a
condition to the Company's obligation to pay you any amounts which are due you
on or after the Resignation Date pursuant to this Agreement, to deliver another
release in the same form on or about the Resignation Date. The foregoing
payments shall be payable in accordance with the Company's payroll practices for
its executive officers, in all cases subject to withholding under applicable
law; provided, however, that the Company in its sole discretion may elect to pay
at any time any remaining amounts due to you hereunder
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in a lump sum; and provided further, that in the event of a Change of Control of
the Company (as such term is defined in your current Employment Agreement), all
remaining amounts payable to you hereunder shall be paid in full in a lump sum
immediately upon the occurrence of such Change of Control, except that all of
your rights to receive the $125,000 payment provided for in Section A above and
your employment as Special Assistant for Strategic Planning and Business
Intelligence shall terminate upon the consummation of a Change of Control.
The Company agrees to pay you at your Base Salary rate for any unused vacation
time you have accrued through March 31, 2000, based on Company policy related to
such vacation time, which shall be paid promptly upon termination of your
employment relationship with the Company. Other than the payments described in
this Agreement, you shall not be entitled to any additional payments from the
Company relating to your employment with the Company or the termination thereof,
including, without limitation, any amounts specified in the Employment
Agreement.
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 stock options to
purchase shares of Common Stock held by you which are unvested as of November 1,
2000 shall terminate as of November 1, 2000, unless mutually agreed in writing
to be extended, and you will have the period of time following the Resignation
Date (or such earlier date on which your service relationship with the Company
terminates due to your voluntary resignation, death or disability) specified in
the Option Agreements and the governing stock option plan to exercise such stock
options which have vested as of the date of termination of your service
relationship with the Company; provided further, that all stock options to
purchase shares of Common Stock held by you prior to a Change of Control will
vest and become exercisable to the extent set forth in the applicable Option
Agreements upon the consummation of the Change of Control.
In addition, in the event that your stock options are to be assumed in a
Transaction (as defined in the relevant Option Agreement) or new awards are
substituted for your Option Agreements in a Transaction, the Company hereby
agrees that the termination of your employment as a Special Assistant upon the
occurrence of a Change of Control, as provided in Paragraph B above, shall be
deemed to be a termination "without cause" for purposes of the so-called "double
trigger" provisions of the Option Agreements and all stock options so assumed,
continued or substituted that provide for vesting in full upon a termination
without cause shall be vested and exercisable in full immediately prior to such
Change of Control.
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D. BENEFITS. You and your beneficiaries shall be entitled to continue to
receive, at the Company's expense, the medical, dental, life and disability
insurance benefits as are currently provided to you (or comparable coverage
pursuant to COBRA) until the earlier of (a) the date on which you secure
permanent employment and become eligible for participation in such employer's
insurance programs or (b) November 1, 2000, at which time all such benefits
shall terminate, except as otherwise provided by law. Until the termination of
your employment with the Company, you shall be entitled to continue to
participate as an employee in any existing 401(k) plan of the Company, and after
the termination of your employment with the Company, your rights with regard to
any such 401(k) plan shall be as provided by law and as may be provided in any
such plan with regard to former employees of the Company. Your eligibility to
participate in the Company's other employee benefit plans and programs will
cease on November 1, 2000, except as otherwise required by law. The Company
shall promptly reimburse you for all reasonable business expenses incurred by
you as an employee of the Company.
E. NON-COMPETITION; CONFIDENTIALITY. You hereby acknowledge that until March
31, 2001, you are still subject to the terms and covenants contained in Article
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. 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 Agreement, the Employment Agreement is hereby terminated and of no further
force and effect. We hereby agree that the non-competition provisions of your
Employment Agreement will not be deemed to apply to the review, analysis and
interpretation of pharmaceutical marketing trends and techniques, including the
sale of such information no matter to whom such sale is made or your self
employment or investment, ownership, control in or employment by an entity in
which you own the majority equity interest if the business conducted by such
entity is solely in such areas. We further agree that any disclosures required
pursuant to a valid and effective subpoena or order issued by a court of
competent jurisdiction or other valid formal discovery process required or
allowed under applicable rules of court shall be permitted, provided you agree
to (i) immediately notify the Company of the existence, terms and circumstances
surrounding such a request, (ii) consult with the Company on the advisability of
taking legally available steps to resist or narrow such request, and (iii) if
disclosure of such information is required, exercise your best efforts at the
Company's expense to obtain an order or other reliable assurance that
confidential treatment will be accorded to such information. Notice to,
consultation with, and efforts taken by counsel provided by the
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Company (as opposed to separate counsel paid for but not selected by the
Company) shall constitute compliance with the requirements of the immediately
preceding sentence of this Agreement.
F. 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 October 31, 2000, except for your
Company credit card which will be returned by April 1, 2000.
G. 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 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. In addition to your compensation hereunder for such cooperation,
you will be reimbursed by the Company only 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 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. In the event there are any inconsistencies or conflicts between the
terms
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and conditions of this Paragraph G and the terms and conditions of the
Advancement Agreement and the Side Letter, each dated as of even date herewith,
the terms and conditions of the Advancement Agreement and the Side Letter shall
control.
H. NON-DISPARAGEMENT AND COOPERATION DURING TRANSITION. Each of us agrees,
that until December 13, 2002, we will 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, provided, however, that any
party may truthfully respond to questions in the ordinary course of business or
litigation. 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.
I. RELEASE. You hereby irrevocably and unconditionally release, acquit, and
forever discharge the Company and its affiliates, securityholders, subsidiaries,
affiliates and related entities and their respective current and former
partners, members, officers, directors, agents, and employees, from any and all
claims, demands, or causes of action based upon any past action, omission, or
event, whether known or unknown, and whether or not in litigation which you may
have had from the beginning of time or which could be asserted by another on
your behalf, based on any action, omission, or event through the date hereof
relating to your employment at the Company and/or your status as a stockholder
and/or optionholder of the Company. This release includes actions claiming
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
2000e et seq., the Age Discrimination in Employment Act, the Americans with
Disabilities Act, all other labor laws of New Jersey, and any other federal,
state, or local law, order or regulation. This release also includes any claims
for wrongful discharge or that the Company has dealt with you unfairly or in bad
faith, and actions raising tortious claims, actions raising any claim of express
or implied contract of employment, or any other cause of action or claims of
violation of common law. This release is for any and all relief, without regard
to its form or characterization. Included in this release are any and all
claims for attorneys' fees and for future damages allegedly arising from the
alleged continuation of the effects of any past action, omission or event.
Notwithstanding anything in this release to the contrary, this release shall not
be construed to limit your right to enforce this
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Agreement the Amended and Restated Advancement Agreement entered into as of this
date or any Stock Option Agreements to which you are a party relating to stock
options remaining outstanding in accordance with the terms hereof.
J. INDEMNIFICATION AND INSURANCE. From and after the date of this Agreement,
the Company agrees that it will indemnify you and hold you harmless against any
losses, claims, damages, liabilities, costs and expenses, including without
limitation attorneys' fees and expenses, relating to or arising out of your
employment in any capacity with the Company to the same extent and upon the same
terms, conditions and limitations as indemnification shall be provided to other
executive officers of the Company who are not directors and shall provide, at
the Company's expense, Directors' and Officers' insurance coverage to the same
extent and upon the same terms and conditions as such insurance may be provided
to other executive officers of the Company from time to time. Consistent with
the foregoing, the Company shall have the right to assume the defense of any
proceeding to which you are a party or otherwise subject with counsel of its
choice (with representation by your own counsel following any such assumption to
be at your expense except in cases of conflict of interest under applicable
standards of professional conduct, in which case the Company shall be
responsible for such expense), and advancement of expenses shall be made upon
determination by the Board of Directors to advance such expenses and receipt of
an undertaking by you to repay such expenses if it shall be determined that you
are not entitled to indemnification under applicable law. Without limitation of
the foregoing, you shall be entitled to indemnification in accordance with the
terms of Article V of the Company's By-laws as currently in effect as a former
officer of the Company, notwithstanding any future Changes of Control or
amendment thereof, the terms and conditions of which are incorporated by
reference herein to govern the provision of indemnification to you by the
Company.
K. MISCELLANEOUS.
You are advised to consult with an attorney before signing this Agreement.
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.
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You acknowledge that you have been given the opportunity, if you so
desired, to consider this Agreement for seven (7) days before executing it.
If not signed by you and returned to Xx. Xxxxxxx X. XxXxxx, Chief Executive
Officer, Boron, XxXxxx & Associates, Inc., 00-00 Xxxxx 000 Xxxxx, Xxxx Xxxx,
Xxx Xxxxxx 00000, so that he receives it by close of business on the eighth
(8th) day after your receipt of the Agreement, this Agreement will not be valid.
In addition, if you breach any of the conditions of the Agreement within the
seven (7) day period, the offer of this Agreement will be withdrawn and your
execution of the Agreement will not be valid. In the event that you execute and
return this Agreement within seven (7) days or less of the date of its delivery
to you, you acknowledge that such decision was entirely voluntary and that you
had the opportunity to consider this letter agreement for the entire seven (7)
day period. The Company acknowledges that for a period of seven (7) days from
the date on which you execute this Agreement, you shall retain the right to
revoke this Agreement by written notice delivered to Xx. XxXxxx at the address
indicated above, and that this Agreement shall not become effective or
enforceable until the expiration of such revocation period.
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
New Jersey will govern any dispute about this Agreement, including any
interpretation or enforcement of this Agreement except for matters relating to
indemnification and advancement of expenses, as to which Delaware law shall
apply. 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
J.A.M.S. Endispute 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. The prevailing party in any such arbitration shall be entitled to
reimbursement of reasonable
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attorneys' fees and costs from the non-prevailing party. 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 A, E, F and H 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 A, E, F and H of
this Agreement and to seek both temporary and permanent injunctive relief (to
the extent permitted by law).
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, Chief Executive Officer
To the Employee: Xxxxxx X. Xxxxxxxx
0 Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 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.
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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:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Dated:
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SPOUSAL CONSENT: I ACKNOWLEDGE THAT I HAVE READ THE FOREGOING AGREEMENT AND THAT
I UNDERSTAND THE CONTENTS THEREOF AND HEREBY ACCEPT AND AGREE TO THE FOREGOING
TERMS.
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Name:
Dated:
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