EXHIBIT 10.25
EMPLOYMENT AGREEMENT
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Employment Agreement, dated the 18th day of August, 1997 by and between
Xxxxx Xxxxx (the "Employee") and Boron, XxXxxx & Associates, Inc., a Delaware
corporation (the "Company"). In consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
1. Employment.
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Subject to the provisions of Section 6, the Company hereby employs the
Employee and the Employee accepts such employment upon the terms and conditions
hereinafter set forth.
2. Terms of Employment.
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Subject to the provisions of Section 6, the term of the Employee's
employment pursuant to this Agreement shall commence on and as of the date
hereof (the "Effective Date") and shall terminate on December 31, 1999.
Thereafter, this Agreement shall be extended automatically for successive one-
year periods ending on the relevant anniversary of December 31, 1999, unless
either party gives the other notice no later than 90 days prior to the scheduled
termination date (i.e., December 31, 1999 or any later anniversary of December
31) of his or its determination not to extend this Agreement, whereupon it shall
terminate as of such anniversary date. The period during which the Employee
serves as an employee of the Company in accordance with and subject to the
provisions of this Agreement is referred to in this Agreement as the "Term of
Employment."
3. Duties.
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During the Term of Employment, the Employee (a) shall serve as an
employee of the Company with the titles of President - BLP Group Sales Support
Division and Executive Vice President - BLP Group Companies, reporting to the
Chief Executive Officer of the Company, and shall perform such duties and have
such responsibilities and shall have such additional or alternative duties and
responsibilities as may be reasonably determined by the Chief Executive Officer
of the Company, consistent with the general area of the Employee's experience
and skills, (b) upon the request of the Chief Executive Officer of the Company,
shall serve as an officer and/or director of any of the Company's subsidiaries,
and (c) shall render all services reasonably incident to the foregoing. The
Employee hereby accepts such employment, agrees to serve the Company in the
capacities indicated, and agrees to use his best efforts in, and shall devote
his full working time, attention, skill and energies to, the advancement of the
interests of the Company and its subsidiaries and the performance of his duties
and responsibilities hereunder.
4. Salary and Bonus.
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(a) During the Term of Employment, the Company shall pay the Employee
a salary at the annual rate of $200,000 per annum, subject to annual review and
potential increase (but not decrease) by the Compensation Committee of the Board
of Directors (the "Base Salary"). Such Base Salary shall be subject to
withholding under applicable law, shall be pro rated for partial years and shall
be payable in periodic installments not less frequently than monthly in
accordance with the Company's usual practice for executives of the Company as in
effect from time to time.
(b) During the Term of Employment, the Employee shall be entitled to
participate in such executive bonus program as may be established by the Company
and then in effect, subject to and in accordance with the terms thereof.
(c) For the year ended December 31, 1997, the Employee shall be
entitled to receive a cash bonus of at least $40,000; provided, however, that in
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the event the Employee's employment is terminated prior to December 31, 1997
pursuant to Section 6(a), 6(b) or 6(d), no such bonus shall be due or paid, and
in the event the Employee's employment is terminated pursuant to Section 6(c),
the bonus shall be appropriately pro rated to reflect the period of time the
Employee was employed by the Company between August 18, 1997 and December 31,
1997.
5. Benefits.
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(a) During the Term of Employment, the Employee shall be entitled to
participate in any and all medical, pension, profit sharing and dental insurance
plans and disability income plans, stock incentive plans, retirement
arrangements and other employment benefits as in effect from time to time for
executive officers of the Company generally. Such participation shall be
subject to (i) the terms of the applicable plan documents (including, as
applicable, provisions granting discretion to the Board of Directors of the
Company or any administrative or other committee provided for therein or
contemplated thereby), and (ii) generally applicable policies of the Company.
(b) Notwithstanding the foregoing, during the Term of Employment the
Company shall provide the Employee with or reimburse the Employee for a Company
automobile and club dues in accordance with the Company's practices for
executive officers, as in effect from time to time.
(c) The Company shall promptly reimburse the Employee for all
reasonable business expenses incurred by the Employee during the Term of
Employment in accordance with the Company's practices for executive officers of
the Company with a similar level of responsibility, as in effect from time to
time.
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(d) During the Term of Employment, the Employee shall receive paid
vacation annually in accordance with the Company's practices for executive
officers, as in effect from time to time, but in any event not less than four
(4) weeks per calendar year.
(e) The Company will purchase on behalf of the Employee a term life
insurance policy providing a death benefit of $1,000,000 in the event of the
Employee's death and naming such person or persons as the Employee may designate
as loss payee or payees. The obligation to purchase and the maintenance of such
life insurance policy during the Term of Employment, however, shall be
contingent upon (i) the Employee's satisfactory completion of all requirements
in connection therewith including, without limitation, a physical examination,
and (ii) the annual premium payments for such policy not exceeding $5,000;
provided, however, that if such amount is not adequate to cover a policy with a
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death benefit of $1,000,000, the Company shall purchase a term life insurance
policy providing for the maximum death benefit payable for a premium of $5,000.
(f) Compliance with the provisions of this Section 5 shall in no way
create or be deemed to create any obligation, express or implied, on the part of
the Company or any of its affiliates with respect to the continuation of any
particular benefit or other plan or arrangement maintained by them or their
subsidiaries as of or prior to the date hereof or the creation and maintenance
of any particular benefit or other plan or arrangement at any time after the
date hereof, except as provided in Sections 5(b), 5(c), 5(d) and 5(e).
6. Termination of Employment of the Employee.
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Prior to the expiration of the Term of Employment as provided in
Section 2 hereof, this Agreement may or shall (as applicable) be terminated as
follows:
(a) At any time by the mutual consent of the Employee and the Company.
(b) At any time for "cause" by the Company upon written notice to the
Employee. For purposes of this Agreement, a termination shall be for "cause"
if:
(i) the Employee shall commit an act of fraud, embezzlement,
misappropriation or breach of fiduciary duty against the Company or
any of its subsidiaries, or shall be convicted by a court of competent
jurisdiction of, or shall plead guilty or nolo contendere to, any
felony or any crime involving moral turpitude; or
(ii) the Employee shall commit a breach of any of the covenants,
terms or provisions hereof, which breach has not been remedied within
thirty (30) days after delivery to the Employee by the Company of
written notice of the facts constituting the breach; or
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(iii) the Employee shall have failed to comply with written
instructions from the Company's Chief Executive Officer, which are
reasonable and consistent with Section 3, or shall have substantially
failed to perform the Employee's duties hereunder for a period of
thirty (30) days after written notice from the Company.
Upon termination for cause as provided in this Section 6(b), (A) all
obligations of the Company under this Agreement shall thereupon immediately
terminate other than any obligation of the Company with respect to earned but
unpaid Base Salary and benefits contemplated hereby to the extent then accrued
or vested, it being understood that upon any such termination the Employee shall
not be entitled to receive (1) any bonus or portion thereof from the Company or
any of its affiliates not then paid whether pursuant to Section 4 or otherwise,
or (2) any continuation of benefits except as may be required by law, and (B)
the Company shall have any and all rights and remedies under this Agreement and
applicable law.
(c) Upon the death of the Employee or upon the permanent disability
(as defined below) of the Employee continuing for a period in excess of one
hundred eighty (180) consecutive days. Upon any such termination of the
Employee's employment as provided in this Section 6(c), all obligations of the
Company under this Agreement shall thereupon immediately terminate other than
(i) any obligation of the Company with respect to earned but unpaid Base Salary
and benefits contemplated hereby to the extent accrued or vested through the
date of termination, and (ii) the obligation of the Company to pay the Employee
or his estate any cash bonus earned pursuant to Section 4(b). As used herein,
the terms "permanent disability" or "permanently disabled" shall mean the
inability of the Employee, by reason of injury, illness or other similar cause,
to perform a major part of his duties and responsibilities in connection with
the conduct of the business and affairs of the Company, as determined reasonably
and in good faith by the Company.
(d) At any time by the Employee on at least 45 days' prior written
notice to the Company. Upon termination by the Employee as provided in this
Section 6(d), all obligations of the Company under this Agreement thereupon
immediately shall terminate other than any obligation of the Company with
respect to earned but unpaid Base Salary and benefits contemplated hereby to the
extent accrued or vested through the date of termination, it being understood
that in the event of such a termination the Employee shall not be entitled to
receive any bonus from the Company or any of its affiliates not then paid
whether pursuant to Section 4 or otherwise with respect to any period during or
after the Term of Employment or any continuation of benefits except to the
extent required by law.
(e) At any time without "cause" (as defined in Section 6(b)) by the
Company upon written notice to the Employee. In the event of termination of the
Employee by the Company pursuant to this Section 6(e) the Company shall (i)
continue to make Base Salary payments to the Employee in the manner contemplated
by Section 4(a) from the date of termination through the later of (x) December
31, 1999 and (y) the first anniversary of the date
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on which such a termination occurs if such termination occurs during any
extension year of the Term of Employment hereunder, and (ii) remain eligible to
receive any bonus contemplated by Section 4(b), if, when and as such bonus
otherwise would have been paid, with such amounts agreed by the parties hereto
to be in full satisfaction, compromise and release of any claims arising out of
any termination of the Employee's employment pursuant to this Section 6(e) or
Section 6(f), and in either case with such amounts to be contingent upon the
Employee's delivery of a general release upon termination of employment in a
form reasonably satisfactory to the Company, it being understood that no
severance benefits shall be provided unless and until the Employee determines to
execute and deliver such release and that such release shall not cover any stock
options which are still in effect (which shall be governed by their respective
terms) and, in the case of a termination pursuant to Section 6(f), such release
shall not cover the matter which is the subject of the material default giving
rise to such termination.
(f) The Employee shall have the right to terminate his employment
hereunder in the event of a material default by the Company in the performance
of its obligations hereunder, after the Employee has given written notice to the
Company specifying such default by the Company and giving the Company a
reasonable time, not less than 30 days, to conform its performance to its
obligations hereunder. The rights and obligations of the parties shall be as
set forth in Section 6(e) in the event of any such termination.
(g) In the event either party gives a notice of non-renewal to be
effective as of any anniversary hereof as contemplated by Section 2, then all
obligations of the parties hereunder shall terminate as of the end of the Term
of Employment except as contemplated by Sections 7 and 8 hereof.
7. Confidentiality; Proprietary Rights.
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(a) In the course of performing services hereunder, on behalf of the
Company (for purposes of this Section 7 including all predecessors of the
Company) and its affiliates, the Employee has had and from time to time will
have access to confidential records, data, customer lists, trade secrets and
other confidential information owned or used in the course of business by the
Company and its affiliates (the "Confidential Information"). The Employee
agrees (i) to hold the Confidential Information in strict confidence, (ii) not
to disclose the Confidential Information to any person (other than in the
regular business of the Company or its affiliates), and (iii) not to use,
directly or indirectly, any of the Confidential Information for any competitive
or commercial purpose other than on behalf of the Company and its affiliates;
provided, however, that the limitations set forth above shall not apply to any
Confidential Information which (i) is then generally known to the public, (ii)
became or becomes generally known to the public through no fault of the
Employee, or (iii) is disclosed in accordance with an order of a court of
competent jurisdiction or applicable law. Upon the termination of the
Employee's employment with the Company for any reason, all Confidential
Information (including, without limitation, all data, memoranda, customer lists,
notes, programs and other papers and items, and reproductions thereof relating
to the foregoing
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matters) in the Employee's possession or control, shall be immediately returned
to the Company or the applicable affiliate and remain in its or their
possession.
(b) The Employee recognizes that the Company and its affiliates
possess a proprietary interest in all of the information described in Section
7(a), subject to the provisions and limitations thereof, and have the exclusive
right and privilege to use, protect by copyright, patent or trademark, or
otherwise exploit the processes, ideas and concepts described therein to the
exclusion of the Employee, except as otherwise agreed between the Company and
the Employee in writing. The Employee expressly agrees that any products,
inventions, discoveries or improvements made by the Employee or his agents or
affiliates in the course of the Employee's employment, including any of the
foregoing which is based on or arises out of the information described in
Section 7(a), shall be the property of and inure to the exclusive benefit of the
Company. The Employee further agrees that any and all products, inventions,
discoveries or improvements developed by the Employee (whether or not able to be
protected by copyright, patent or trademark) during the course of his
employment, or involving the use of the time, materials or other resources of
the Company or any of its affiliates, shall be promptly disclosed to the Company
and shall become the exclusive property of the Company, and the Employee shall
execute and deliver any and all documents necessary or appropriate to implement
the foregoing.
(c) The Employee agrees, while he is employed by the Company, to offer
or otherwise make known or available to it, as directed by the Chief Executive
Officer of the Company and without additional compensation or consideration, any
business prospects, contracts or other business opportunities that he may
discover, find, develop or otherwise have available to him in any field in which
the Company or its affiliates are engaged, and further agrees that any such
prospects, contacts or other business opportunities shall be the property of the
Company.
8. Non-Competition.
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In view of the fact that any activity of the Employee in violation of
the terms hereof would deprive the Company and its subsidiaries, if any, of the
benefits of their bargain under this Agreement, as a material inducement to and
a condition precedent of the Company's payment obligations hereunder and the
other covenants set forth herein, and to preserve the goodwill associated with
the Boron, XxXxxx business, the Employee hereby agrees that during the Term of
Employment and thereafter (a) for a period of one year following the termination
of the Employee's employment with the Company in the event such termination
occurs by or under the circumstances contemplated by Sections 6(e) or 6(f), or
(b) for a period ending on the later of the second anniversary of the Effective
Date or the date which is one year following the termination of the Employee's
employment with the Company for any other reason, regardless of the
circumstances of termination, he will not, without the express written consent
of the Company, directly or indirectly, anywhere in the areas of the United
States where the Company and its subsidiaries, if any, conduct business, engage
in any activity which
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is, or participate or invest in, or provide or facilitate the provision of
financing to, or assist (whether as owner, part-owner, shareholder, partner,
director, officer, trustee, employee, agent or consultant, or in any other
capacity), any business, organization or person other than the Company (or any
affiliate of the Company), whose business, activities, products or services are
competitive with any of the business, activities, products or services conducted
or offered by the Company and its subsidiaries at the time of the termination of
Employee's employment with the Company, which business, activities, products and
services shall include in any event peer influence meetings, telemarketing
activities, contract sales and outsource marketing involving pharmaceutical and
healthcare companies. Without implied limitation, the foregoing covenant shall
include hiring or engaging or attempting to hire or engage for or on behalf of
himself or any such competitor, any officer or employee of the Company or any of
its direct and/or indirect subsidiaries, encouraging for or on behalf of himself
or any such competitor, any such officer or employee to terminate his or her
relationship or employment with the Company or any of its direct or indirect
subsidiaries, soliciting for or on behalf of himself or any such competitor any
client of the Company or any of its direct or indirect subsidiaries and
diverting to any person (as defined in Section 11) any client or business
opportunity of the Company or any of any of its direct or indirect subsidiaries.
Notwithstanding anything herein to the contrary, the Employee may make
passive investments in any enterprise the shares of which are publicly traded if
such investment constitutes less than five (5%) percent of the equity of such
enterprise.
The Employee acknowledges that neither the Employee nor any business entity
controlled by him is a party to any contract, commitment, arrangement or
agreement which could, following the date hereof, restrain or restrict the
Company or any subsidiary or affiliate of the Company from carrying on its
business or restrain or restrict the Employee from performing his obligations
under this Agreement and as of the date of this Agreement the Employee has no
business interests in or relating to the pharmaceutical industry whatsoever
other than his interest in the Company, other than interests in public companies
of less than five (5%) percent.
9. Specific Performance; Severability.
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It is specifically understood and agreed that any breach of the
provisions of Sections 7 or 8 hereof by the Employee is likely to result in
irreparable injury to the Company 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 Company shall be entitled to enforce the specific
performance of this Agreement by the Employee and to seek both temporary and
permanent injunctive relief (to the extent permitted by law), without the
necessity of posting a bond or proving actual damages. In case any of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, any such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had
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been limited or modified (consistent with its general intent) to the extent
necessary to make it valid, legal and enforceable, or if it shall not be
possible to so limit or modify such invalid, illegal or unenforceable provision
or part of a provision, this Agreement shall be construed as if such invalid,
illegal or unenforceable provision or part of a provision had never been
contained in this Agreement.
10. Notices.
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All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if faxed (with
transmission 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: Xxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
or to such other address or fax number of which any party may notify the other
parties as provided above. Notices shall be effective as of the date of such
delivery, mailing or fax.
11. Miscellaneous.
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This Agreement shall be governed by and construed under the laws of
the State of New Jersey, and shall not be amended, modified or discharged in
whole or in part except by an agreement in writing signed by both of the parties
hereto. The failure of either of the parties to require the performance of a
term or obligation or to exercise any right under this Agreement or the waiver
of any breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. This Agreement shall inure to
the benefit of, and be binding upon and assignable to, successors of the Company
by way of merger, consolidation or sale and may not be assigned by the Employee.
This Agreement, together with concurrently executed stock option agreements,
supersedes, terminates and in all respects replaces all prior understandings and
agreements, written or oral, between the parties relating to the subject matter
hereof. For purposes of this Agreement, the term "person" means an individual,
corporation, partnership, association, trust or any unincorporated organization;
a "subsidiary" of a person means any corporation more than 50 percent of whose
outstanding voting securities, or any partnership, joint venture or other entity
more than 50 percent of whose total
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equity interest, is directly or indirectly owned by such person; and an
"affiliate" of a person shall mean, with respect to a person or entity, any
person or entity which directly or indirectly controls, is controlled by, or is
under common control with such person or entity.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first set forth above.
BORON, XxXXXX & ASSOCIATES, INC.
By:/s/ Xxxxxxx X. XxXxxx
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Xxxxxxx X. XxXxxx, President
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
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