EMPLOYMENT AGREEMENT
EXECUTION
COPY
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is made this 11th day of June, 2008 (the “Effective Date”) by
inVentiv Health, Inc., a Delaware corporation with its principal place of
business at 000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the “Company”), and
Xxxx Xxxxxx, residing at 00 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx 0X, Xxx Xxxx, XX 00000
(the “Executive”).
WHEREAS, the parties wish to
set forth the terms and conditions upon which the Company will employ
Executive;
NOW, THEREFORE, in consideration
of the mutual covenants and promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties agree as follows:
Section
1. Position;
Title; Duties. Executive shall serve as Executive Chairman of
the Board of the Company and shall perform services consistent with that
position and as may be reasonably assigned to him from the Board of Directors of
the Company (the “Board”).
Section
2. Extent of
Services. Executive agrees to
devote such portion of his business time and attention to the performance of his
duties under this Agreement as is consistent with the requirements of his
position or reasonably requested by the Board of Directors. He shall
perform his duties to the best of his ability and shall use his best efforts to
further the interests of the Company. Executive shall perform his
duties in the Company’s New York City and New Jersey metropolitan area offices
and will be required to travel as necessary to perform the services required of
him under this Agreement. It is understood that Executive will
maintain his principal residence in New York City and it is anticipated that his
principal place of business will be in the New York – New Jersey metropolitan
area.
Section
3. Compensation. (a) The
Company shall pay Executive an annual base salary of $300,000, subject to annual
review by the Board (it being understood that any determination the Board is
required or entitled to make hereunder, other than a determination pursuant to
Section 1 or 7(c), may be made by the Compensation Committee of the Board),
which may increase, but not decrease the amount thereof (the “Base
Salary”). The Base Salary shall be payable in installments in
accordance with the Company’s ordinary payroll practices, minus such deductions
as may be required by law or reasonably requested by Executive.
(b) Executive shall be
eligible to receive option grants for the purchase of shares of the common stock
of the Company (“Options”) at the discretion of the Board; provided that no
Option shall have an exercise price less than the fair market value of the
common stock of the Company on the date of grant. Under the
circumstances provided in Sections 7 through 9, all Options held by Executive
shall become fully vested.
(c) Executive shall be
eligible to receive grants of restricted shares of the common stock of the
Company (“Restricted Shares”) at the discretion of the Board. Under
the circumstances provided in Sections 7 through 9, all restricted shares held
by Executive shall become fully vested.
Section
4. Term of
Employment. Executive is an employee “at will” and subject to
the provisions of Sections 7 through 9 hereof, Executive’s employment with the
Company may be terminated by the Company or by Executive at any time for any
reason.
Section
5. Fringe
Benefits. (a) Benefits. Executive
shall be entitled to all benefits generally available to senior executives of
the Company.
(b) Vacation. Executive
shall be entitled to five (5) weeks of vacation during each year of
employment. Executive shall be entitled to sick leave and holidays in
accordance with the policy of the Company applicable to its senior
executives.
(c) Car
Allowance. Executive shall be entitled to monthly car
allowance $833.00, paid as taxable wages. The allowance will end
effective with Executive’s termination.
(d) Life
Insurance. The Company shall maintain for the benefit of
Executive during the term of his employment a minimum of $2.5 million in term
life insurance.
Section
6. Reimbursement
of Business Expenses. The Company shall reimburse Executive in
accordance with Company’s policies for all reasonable out-of-pocket costs
incurred or paid by Executive in connection with or related to, the performance
of his duties, responsibilities or services under this Agreement, upon
presentation by Executive of documentation, expense statements, vouchers, and/or
such other supporting information as the Company may reasonably
request.
Section
7. Termination of Employment
Prior to a Change in Control.
(a) Accrued
Amounts. In the event of the termination of Executive’s
employment for any reason, Executive shall be entitled to (A) unpaid Base Salary
through the date of termination; (B) any benefits due to Executive under any
employee benefit plan of the Company and any payments due to Executive under the
terms of any Company program, arrangement or agreement, excluding any severance
program or policy and (C) any expenses owed to Executive ((A), (B) and (C)
collectively, the “Accrued Amounts”). Except as provided in Section 7(b),
Executive shall have no further right or entitlement under this Agreement upon a
termination of Executive’s employment within the scope of this Section
7.
(b) Termination Without Cause;
For Good Reason. The Company may terminate Executive’s employment without
Cause (other than by reason of Disability) and Executive may terminate his
employment for Good Reason, in each case upon thirty (30) days prior written
notice (which, in the case of a termination of employment by Executive for Good
Reason, shall be given within ninety (90) days of the event or circumstance
constituting Good Reason). In the event that the Company terminates
Executive’s employment without Cause (other than by reason of Disability) or
Executive terminates his employment for Good Reason, in either case prior to a
Change in Control, Executive shall be entitled to the following in lieu of any
payments or benefits under any severance program or policy of the
Company:
(i) the
Accrued Amounts;
(ii) a
lump sum cash severance payment, payable, subject to Section 20, within 10
business days of termination, equal to two times the Executive’s highest Base
Salary (subsequent to the Effective Date) as of the date of
termination;
(iii) continued
coverage for a period of eighteen months commencing on the date of termination
under any Company life insurance plan in which Executive was participating
immediately prior to the date of termination;
(iv) the
health insurance benefits described below; and
(v) full
vesting of all Options, Stock Appreciation Rights and Restricted Shares
previously granted to Executive, which Options and Stock Appreciation Rights
shall remain exercisable for the period determined in accordance with Section
18.
If and to
the extent the Company is not permitted under the terms of any applicable plan
or policy or applicable law to provide the benefits described in clause (iii)
above or Section 8(a)(iii) or 9(b)(iii) below, or if the provisions of such
benefits would cause any applicable plan to be deemed to be discriminating in
favor of highly compensated employees under the Employee Retirement Income
Security Act of 1974, as amended, the Company shall either (x) provide
equivalent benefits on an individual basis at no additional after-tax cost to
Executive (which may be accomplished by making payments to Executive sufficient
to pay, on an after-tax basis, the applicable portion of the premium cost under
the insurance policy(ies) maintained pursuant to Section 5(d) for the applicable
period following termination of Executive's employment with the Company) or (y)
pay to Executive an amount sufficient to permit Executive to purchase equivalent
benefits at no additional after-tax cost to Executive.
If
Executive’s employment is terminated by the Company without Cause, if Executive
terminates his employment for Good Reason, if Executive's employment terminates
by reason of his death or if Executive is terminated for Disability (a
“Qualifying Termination”), then the Company shall continue health benefits to
Executive (and/or his spouse and eligible dependents, if any) equivalent to
those which would have been provided to them in accordance with the plans,
programs, practices and policies as made available to actively employed
executives of the Company (including, without limitation, co-pays, deductibles
and other required payments and limitations) as then in effect (or, if more
favorable, as in effect immediately prior to a Change in Control) (the “Welfare Plans”), for
a period of thirty-six months following such Qualifying Termination (the “Continuation
Period”). If Executive does not make a timely election to
continue coverage under COBRA, the Continuation Period will be reduced by
eighteen (18) months. If Executive is covered by health insurance of
a subsequent employer, the coverage provided under this Agreement will be
secondary to such other coverage. Executive (or, where applicable,
his spouse and dependents) shall pay the full monthly premium cost of such
medical coverage for the Continuation Period. The monthly premium
cost during the Continuation Period for Executive, spouse and dependents shall
be the monthly COBRA premium during the COBRA health care continuation coverage
period under section 4980B of the Code or, to the extent the COBRA coverage is
not in effect, such amount as is equal to the Company’s deemed cost of such
medical coverage for Executive and and/or his spouse and eligible dependents, if
any, which shall be determined actuarially by the Company’s advisors (the “Applicable
Premium”). During the Continuation Period, the Company shall
pay Executive (or, where applicable, Executive’s spouse) an amount equal to the
135% of the Applicable Premium described above (the “Advance Premium”), as
in effect from time to time, which, subject to Section 13(d), shall be made in
advance on the first business day of each month, commencing with the month
immediately following Executive’s date of termination, provided that, subject to
Section 13(d), the first such payment shall be made within thirty (30) days
after Executive’s termination date. The Company shall have no further
obligation to pay the Advance Premium after the earlier of: (A) Executive (or,
where applicable, his spouse and dependents) ceasing to participate in the
Welfare Plans and (B) the end of the Continuation Period.
(c) Definition of
“Cause”. For purposes of this Agreement, the term “Cause”
shall mean (i) Executive’s willful and continuing failure (except where due to
physical or mental incapacity) to substantially perform his duties hereunder or
refusal or failure to follow the lawful directives of the Board, in either case
which is not remedied within 15 days after receipt of written notice
from the Company specifying such failure; (ii) Executive’s willful malfeasance
or gross neglect in the performance of his duties hereunder resulting in
material harm to the Company; (iii) Executive’s conviction of, or plea of guilty
or nolo
contendere to, a felony or a misdemeanor involving moral turpitude; (iv)
the commission by Executive of an act of fraud or embezzlement against the
Company or any affiliate; or (v) Executive’s willful material breach of any
material provision of this Agreement (as determined in good faith by the Board)
which is not remedied within 15 days after receipt of written notice from the
Company specifying such breach, provided that Executive shall be given the
opportunity to appear before the Board prior to the time such termination would
otherwise become effective. For purposes of the preceding sentence,
no act or failure to act by Executive shall be considered “willful” unless done
or omitted to be done by Executive in bad faith or without reasonable belief
that Executive’s action or omission was in the best interests of the
Company.
(d) Definition of “Good
Reason”. For purposes of this Agreement, the term “Good
Reason” shall mean the occurrence, without Executive’s express written consent,
of: (i) any adverse change in Executive’s title agreed to or effected by the
Board, (ii) any material diminution in Executive’s employment duties,
responsibilities or authority, or the assignment to Executive of duties that are
materially inconsistent with his position, that is not cured within 15 days
after written notice thereof is received from Executive; (iii) any reduction in
Base Salary; (iv) a relocation of Executive’s principal place of employment to a
location inconsistent with Section 2 hereof that would unreasonably increase
Executive’s commute; (v) during Executive’s employment with the Company, any
failure of Executive to be nominated for election as a director of the Company
or the removal of Executive as a director of the Company by the Board other than
for cause; (vi) any willful material breach by the Company of any material
provision of this Agreement that is not cured within 15 days after written
notice thereof is received from Executive; or (vii) any termination of
employment by Executive during the thirty day period following the one year
anniversary of a Change in Control. Each of Executive's Option and
Restricted Share awards shall provide (and if outstanding are hereby amended to
provide) that such awards shall accelerate upon an event described in clause (v)
that occurs following a termination of Executive's employment (other than a
termination for Cause).
(e) In order
to be eligible to receive any Severance Payment pursuant to Section 7(b) hereof,
Executive must sign, prior to receiving such payment, a complete release of all
claims against Company (other than claims under this Section 7), in
substantially the form attached hereto as Exhibit I and such release must have
become effective in accordance with its terms.
Section
8. Disability;
Death.
(a) Termination Upon
Disability. The Company may terminate Executive’s employment
by reason of Disability upon thirty (30) days prior written
notice. If Executive is terminated for Disability, Executive shall be
entitled to the following in lieu of any payments or benefits under any
severance program or policy of the Company (but not in lieu of any disability
benefits to which Executive is entitled under any disability program or policy
of the Company):
(i) the
Accrued Amounts;
(ii) a
lump sum cash severance payment, payable, subject to Section 18, within 10
business days of termination, equal to two times the Executive’s highest Base
Salary (subsequent to the Effective Date) as of the date of termination, reduced
by any amount previously paid to the Executive pursuant to Section
9(a);
(iii) continued
coverage for a period of eighteen months commencing on the date of termination
under any Company life insurance plan in which Executive was participating
immediately prior to the date of termination;
(iv) the
health insurance benefits described in Section 7(b); and
(v) full
vesting of all Options, Stock Appreciation Rights and Restricted Shares
previously granted to Executive, which Options and Stock Appreciation Rights
shall remain exercisable for the period determined in accordance with Section
18.
(b) Definition of
Disability. For purposes hereof, "Disability" means
Executive's inability due to physical or mental incapacity to perform the duties
and services of his position for a period of 120 days. At the
Company's option, such physical or mental incapacity may be determined by a
physician selected by the Company and reasonably acceptable to Executive or
presumed by the Company on the basis of Executive's failure to perform the
duties and services of his position for a period of 120 days.
(c) Release. In
order to be eligible to receive any payment pursuant to Section 8(a) hereof,
Executive must sign, prior to receiving such payment, a complete release of all
claims against Company (other than claims under this Section 10), in
substantially the form attached hereto as Exhibit I and such release must have
become effective in accordance with its terms.
(d) Death. If
Executive dies during the term of his employment with the Company, (i)
Executive's estate shall be entitled to the Accrued Amounts and any death
benefits to which Executive is entitled under any program or policy of the
Company providing such benefits, and the Company shall have no other liability
to Executive's estate in respect of any additional compensatory or severance
amount, (ii) Executive's spouse and eligible dependents, if any shall be
entitled to the health insurance benefits described in Section 7(b) and (iii)
all Options, Stock Appreciation Rights and Restricted Shares previously granted
to Executive shall immediately vest in full and shall remain exercisable for the
period determined in accordance with Section 18.
Section
9. Change in
Control.
(a) Payment Upon Change in
Control. In the event of a Change in Control while Executive
is employed by the Company, Executive shall be entitled to the
following:
(i) a
lump sum cash payment, payable, subject to Section 18, within 10 business days
of the Change in Control, equal to two times the Executive’s highest Base Salary
(subsequent to the Effective Date) as of the date of the Change in
Control;
(ii) full
vesting of all Options, Stock Appreciation Rights and Restricted Shares
previously granted to Executive, which Options and Stock Appreciation Rights
shall remain exercisable for the period determined in accordance with Section
18; and
(iii) any
Gross-Up Payment due in accordance with Section 9(c) hereof.
(b) Termination Without Cause;
For Good Reason. In the event that the Company terminates
Executive’s employment other than for Cause or Executive terminates his
employment for Good Reason within 13 months following a Change in Control,
Executive shall be entitled to the following in lieu of any payments or benefits
under any severance program or policy of the Company:
(i) the
Accrued Amounts;
(ii) a
lump sum cash severance payment, payable, subject to Section 18, within 10
business days of termination, equal to the Executive’s highest Base Salary
(subsequent to the Effective Date) as of the date of the Change in
Control;
(iii) continued
coverage for a period of thirty-six months commencing on the date of termination
under any Company life insurance plan in which Executive was participating
immediately prior to the date of termination;
(iv) the
health insurance benefits described in Section 7(b); and
(v) any
Gross-Up Payment due in accordance with Section 9(c) hereof.
(c) Gross-Up
Payment. (i) Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, award, benefit or distribution (or any acceleration
of any payment, award, benefit or distribution) by the Company (or any of its
affiliated entities) or any entity which effectuates a Change in Control to or
for the benefit of Executive (whether pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 5(c)) (the “Payments”) would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
“Code”), or any interest or penalties are incurred by Executive 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 Company
shall pay to Executive an additional payment (a “Gross-Up Payment”) in an amount
such that after payment by Executive of all taxes (including any Excise Tax)
imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up
Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y)
the product of any deductions disallowed because of the inclusion of the
Gross-Up Payment in Executive’s adjusted gross income and the highest applicable
marginal rate of federal income taxation for the calendar year in which the
Gross-Up Payment is to be made. For purposes of determining the
amount of the Gross-Up Payment, Executive shall be deemed to (i) pay
federal income taxes at the highest marginal rates of federal income taxation
for the calendar year in which the Gross-Up Payment is to be made, (ii) pay
applicable state and local income taxes at the highest marginal rate of taxation
for the calendar year in which the Gross-Up Payment is to be made, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes and (iii) have otherwise allowable deductions
for federal income tax purposes at least equal to those which could be
disallowed because of the inclusion of the Gross-Up Payment in Executive’s
adjusted gross income.
(ii) Notwithstanding
the foregoing provisions of this Section 9(c), if it shall be determined that
Executive is entitled to the Gross-Up Payment, but that the Parachute Value of
all Payments does not exceed the Safe Harbor Amount by the lesser of (A) 5% of
the Safe Harbor Amount and (B) $50,000, then no Gross-Up Payment shall be made
to Executive and the amounts payable under this Agreement shall be reduced so
that the Parachute Value of all Payments, in the aggregate, equals the Safe
Harbor Amount; provided, however, that in no event, shall such reduction exceed
$50,000. The reduction of the amounts payable hereunder, if
applicable, shall be made by reducing the payments and benefits under the
following sections in the following order: (i) the accelerated vesting of equity
pursuant to Section 9(a)(ii), (ii) the cash payment under Section 9(b) and (iii)
the cash payment under Section 9(a)(i). For purposes of reducing the
Payments to the Safe Harbor Amount, only amounts payable under this Agreement
(and no other Payments) shall be reduced. If the reduction of the
amounts payable under this Agreement in accordance with this Section 9(c)(ii)
would not result in a reduction of the Parachute Value of all Payments to the
Safe Harbor Amount, no amounts payable under the Agreement shall be reduced
pursuant to this Section 9(c). The Company’s obligation to make
Gross-Up Payments under this Section 9(c) shall not be conditioned upon
Executive’s termination of employment.
(iii) Subject
to the provisions of Section 9(c)(i), all determinations required to be made
under this Section 9(c), including whether and when a Gross-Up Payment is
required, the amount of such Gross-Up Payment and the assumptions to be utilized
in arriving at such determinations, shall be made by PriceWaterhouse Coopers
(the “Accounting Firm”) which shall provide detailed supporting calculations
both to the Company and Executive within fifteen (15) business days of the
receipt of notice from the Company or Executive that there has been a Payment,
or such earlier time as is requested by Executive or the Company (collectively,
the “Determination”). In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Company and Executive shall jointly appoint another
nationally recognized public accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company and the Company shall enter into any agreement
requested by the Accounting Firm in connection with the performance of the
services hereunder. The Gross-Up Payment under this Section 9(c) with
respect to any Payments shall be made no later than thirty (30) days following
such Payment. The Determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
Determination, it is possible that Gross-Up Payments which will not have been
made by the Company should have been made (“Underpayment”) or Gross-Up Payments
are made by the Company which should not have been made (“Overpayment”),
consistent with the calculations required to be made hereunder. In
the event that Executive thereafter is required to make payment of any Excise
Tax or additional Excise Tax, the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such Underpayment (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be
promptly paid by the Company to or for the benefit of Executive. In
the event the amount of the Gross-Up Payment exceeds the amount necessary to
reimburse Executive for his Excise Tax, the Accounting Firm shall determine the
amount of the Overpayment that has been made and any such Overpayment (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code)
shall be promptly paid by Executive (to the extent he has received a refund if
the applicable Excise Tax has been paid to the Internal Revenue Service) to or
for the benefit of the Company. Executive shall cooperate, to the
extent his expenses are reimbursed by the Company, with any reasonable requests
by the Company in connection with any contests or disputes with the Internal
Revenue Service in connection with the Excise Tax; provided that (i) the Company
shall bear and pay directly all legal and other costs and expenses of
Executive's representation in connection with such contest or dispute and (ii)
the Company shall indemnify and hold Executive harmless on the terms provided
above for any additional Excise Tax (including interest and penalties) imposed
as a result of such contest or dispute.
(v) The
following terms shall have the following meanings for purposes of this Section
9(c).
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(A)
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“Parachute
Value” of a Payment shall mean the value of such Payment the date of the
change of control for purposes of Section 280G of the Code of the portion
of such Payment that constitutes a “parachute payment” under Section
280G(b)(2), as determined by the Accounting Firm for purposes of
determining whether and to what extent the Excise Tax will apply to such
Payment.
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(B)
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The
“Safe Harbor Amount” means 2.99 times Executive’s “base amount,” within
the meaning of Section 280G(b)(3) of the
Code.
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(d) Definition of "Change in
Control". For purposes of this Agreement, “Change in Control”
means
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(i)
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The
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”))
(a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of more than 50% of either (A) the then-outstanding
shares of common stock of the Company (the “Outstanding Company
Common Stock”) or (B) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company
Voting Securities”); provided, however, that,
for purposes of this Section 9(d)(1), the following acquisitions
shall not constitute a Change in Control: (i) any acquisition
directly from the Company, (ii) any acquisition by the Company or
(iii) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Affiliated
Company;
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(ii)
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Individuals
who, as of the Effective Date, constituted the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of
the Board; provided, however, that
any individual becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the
Board;
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(iii)
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Consummation
of a reorganization, merger, consolidation or sale or other disposition of
all or substantially all of the assets of the Company (a “Business
Combination”), in each case, unless, following such Business
Combination, (A) all or substantially all of the individuals and
entities that were the beneficial owners of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and the combined
voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without
limitation, a corporation that, as a result of such transaction, owns the
Company or all or substantially all of the Company’s assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership immediately prior to such Business
Combination of the Outstanding Company Common Stock and the Outstanding
Company Voting Securities, as the case may be and (B) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement or of the
action of the Board providing for such Business Combination;
or
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(iv)
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Approval
by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
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(e) Release. In
order to be eligible to receive any payment pursuant to Section 9(b) or, with
respect to Section 9(b), Section 9(c) hereof, Executive must sign, prior to
receiving such payment, a complete release of all claims against Company (other
than claims under this Section 9), in substantially the form attached hereto as
Exhibit I and such release must have become effective in accordance with its
terms.
Section
10. Non-Solicitation
and Non-Competition. (a) Except as provided in
paragraph (f) below, Executive agrees that while Executive is employed
pursuant to this Agreement and for a period of twelve (12) months following
termination of Executive’s employment by the Company for any reason (the
“Non-Competition Period”), whether by action of Executive or the Company,
Executive will not, except as otherwise provided herein, engage or participate,
directly or indirectly as principal, agent, executive, employer, consultant,
stockholder, partner or in any other individual capacity whatsoever, in the
conduct or management of, or own any stock or any other equity investment in or
debt of, any business which is competitive with any business conducted by the
Company.
(b) For the
purpose of this Agreement, a business shall be considered to be competitive with
the business of the Company if such business is engaged in providing outsourced
commercialization services to the pharmaceutical industry or any other business
in which the Company is engaged at the time of termination of Executive’s
employment; provided that a pharmaceutical company shall not be deemed to be
competitive if the services Executive renders to such a company do not involve
providing outsourced commercialization services or any other business in which
the Company is engaged at the time of termination of Executive’s
employment.
(c) During
the Non-Competition Period, Executive will not, for his own benefit or for the
benefit of any person or entity other than the Company, (i) solicit, or
assist any person or entity other than the Company to solicit any officer,
director, executive or employee of the Company to leave his/her employment,
(ii) hire or cause to be hired for Executive’s benefit any present or
former officer, director, executive or employee of the Company, or
(iii) engage any present or former officer, director, executive or employee
of the Company as a partner, contractor, sub-contractor, employee, consultant or
other business associate of Executive.
(d) During
the Non-Competition Period, Executive will not (i) solicit, or assist any
person or entity other than the Company to solicit, any person or entity that is
a client of the Company, or has been a client of the Company during the twelve
(12) months prior to the date of termination of Executive’s employment, to
purchase outsourced commercialization services or any other products or services
the Company provides to a client, or (ii) interfere with any of Company’s
business relationships.
(e) Executive
acknowledges that (i) the markets served by the Company are national in
scope and are not dependent on the geographic location of the executive
personnel or the businesses by which they are employed, and (ii) the above
covenants are manifestly reasonable on their face, and the parties expressly
agree that such restrictions have been designed to be reasonable and no greater
than is required for the protection of the Company.
(f) Nothing
in this Agreement shall he deemed to prohibit Executive from owning equity or
debt investments in any corporation, partnership or other entity which is
competitive with the Company, provided that such
investments (i) are passive investments and constitute one percent (1%) or
less of the outstanding equity securities of such an entity the equity
securities of which are traded on a national securities exchange or other public
market and (ii) are approved by the Company.
(g) The
parties to this Agreement mutually agree that, in recognition of Company’s
dependence on Executive’s experience to carry out its business plan and
Executive’s senior and key position in the Company, the restrictions detailed in
this Section 10 are necessary and appropriate to give effect to the
intended relationships of the parties. Executive agrees that because
damages arising from violations of this Section 10 are extremely difficult
to quantify with certainty, injunctive relief will be necessary to effect the
intent of such Section. Accordingly, Executive hereby consents to the
imposition of a preliminary or permanent injunction as a remedy to this breach
of this Section 10.
(h) It is the
desire and intent of the parties hereto that the restrictions set forth in this
Section 10 shall be enforced and adhered to in every particular, and in the
event that any provision, clause or phrase shall be declared by a court of
competent jurisdiction to be judicially unenforceable either in whole or in part
– whether the limit be in duration, geographic coverage or scope of activities
precluded – the parties agree that they will mutually petition the court to
sever or limit the unenforceable provisions so as to retain and effectuate to
the greatest extent legally permissible the intent of the parties as expressed
in this Section 10.
(i) For
purposes of Sections 10 and 11 of this Agreement, the “Company” shall be deemed
to refer to the Company and each of its subsidiaries.
Section
11. Confidential
Information
. (a) Executive
shall not (for his own benefit or the benefit of any person or entity other than
the Company) use or disclose any of the Company’s trade secrets or other
confidential information. The term “trade secrets or other
confidential information” includes, by way of example, matters of a technical
nature, “know-how”, computer programs (including documentation of such
programs), research projects, and matters of a business nature, such as
proprietary information about costs, profits, markets, sales, lists of
customers, and other information of a similar nature to the extent not available
to the public, and plans for future development. After termination of
this Agreement, Executive shall not use or disclose trade secrets or other
confidential information unless such information becomes a part of the public
domain other than through a breach of this Agreement or is disclosed to
Executive by a third party who is entitled to receive and disclose such
information.
(b) Upon the
effective date of notice of Executive’s or the Company’s election to terminate
this Agreement, or at any time upon the request of the Company, Executive (or
his heirs or personal representatives) shall deliver to the Company all
documents and materials containing either trade secrets and confidential
information relating to the Company’s business or privileged information, and
all documents, materials and other property belonging to the Company, which in
either case are in the possession or under the control of Executive (or his
heirs or personal representatives).
(c) All
discoveries and works made or conceived by Executive during his employment by
the Company, jointly or with others, that relate to the Company’s activities
shall be owned by the Company. The terms “discoveries and works”
include, by way of example, inventions, computer programs (including
documentation of such programs), technical improvements, processes, drawings,
and works of authorship, including sales materials which relate to wall media
products, sampling/comparing or services. Executive shall promptly
notify and make full disclosure to, and execute and deliver any documents
requested by, the Company to evidence or better assure title to such discoveries
and works by the Company, assist the Company in obtaining or maintaining for
itself at its own expense United States and foreign patents, copyrights, trade
secret protection and other protection of any and all such discoveries and
works, and promptly execute, whether during his employment or thereafter, all
applications or other endorsements necessary or appropriate to maintain patents
and other rights for the Company and to protect its title
thereto. Any discoveries and works which, within six (6) months after
the termination of Executive’s employment by the Company, are made, disclosed,
reduced to a tangible or written form or description, or are reduced to practice
by Executive and which pertain to work performed by Executive while with the
Company shall, as between Executive and the Company, be presumed to have been
made during Executive’s employment by the Company
Section
12. Enforcement. Executive
agrees that the Company’s remedies at law for any breach or threat of breach by
him of the provisions of Sections 10 and 11 hereof will be inadequate, and that
the Company shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of Sections 10 and 11 hereof and to enforce
specifically the terms and provisions thereof, in addition to any other remedy
to which the Company may be entitled at law or equity.
Section
13. Indemnification. The Company shall
indemnify Executive against any and all losses, liabilities, damages, expenses
(including attorneys’ fees) judgments, fines and amounts paid in settlement
incurred by Executive in connection with any claim, action, suit or proceeding
(whether civil, criminal, administrative or investigative), including any action
by or in the right of the Company, by reason of any act or omission to act in
connection with the performance of his duties hereunder to the full extent that
the Company is permitted to indemnify a director, officer, employee or agent
against the foregoing under applicable law. The Company shall at all
times cause Executive to be included, in his capacity hereunder, under all
liability insurance coverage (or similar insurance coverage) maintained by any
of the Company from time to time.
Section
14. Attorney’s
Fees and Costs. In the event Executive institutes any action
to enforce his rights under this Agreement and prevails on at least one material
claim in such action, the Company shall pay Executive’s reasonable cost and
expenses (including legal fees) incurred in connection with such
action.
Section
15. Tax
Withholding. Notwithstanding
any other provision of this Agreement, the Company may withhold from amounts
payable under this Agreement all Federal, state, local and foreign taxes that
are required to be withheld by applicable laws or regulations.
Section
16. No
Waiver. Executive’s or
the Company’s failure to insist upon strict compliance with any provision of, or
to assert any right under, this Agreement shall not be deemed to be a waiver of
such provision or right or of any other provision of or right under this
Agreement. Any provision of this Agreement may be waived by either
party; provided
that any waiver by any person of any provision of this Agreement shall be
effective only if in writing and signed by the person against whom enforcement
of the waiver is sought and such waiver must specifically refer to this
Agreement and to the terms or provisions being modified or waived.
Section
17. No
Mitigation. In no event shall
Executive be obligated to seek other employment or take other action by way of
mitigation of the amounts payable to Executive under any of the provisions of
this Agreement and such amounts shall not be subject to offset or otherwise
reduced whether or not Executive obtains other employment. The
Company’s obligation to make any payment pursuant to, and otherwise to perform
its obligations under, this Agreement shall not be affected by any offset,
counterclaim or other right that the Company may have against Executive for any
reason.
Section
18. Section
409A. The parties
acknowledge and agree that, to the extent applicable, this Agreement shall be
interpreted in accordance with Section 409A of the Internal Revenue Code and the
Department of Treasury Regulations and other interpretive guidance issued
thereunder, including without limitation any such regulations or other guidance
that may be issued after the Effective Date (“Section 409A”). The
Company shall take, and Executive shall cooperate with the Company in taking,
all steps reasonably necessary to have such benefits not be deferred
compensation arrangements under Section 409A, including adopting such amendments
to this Agreement and appropriate policies and procedures, including amendments
and policies with retroactive effect, that are reasonably necessary or
appropriate to preserve the intended tax treatment of the benefits provided by
this Agreement, provided that (i) the Company will not be required to take any
such steps that impose any material additional costs on the Company and shall
not take any such steps that impose any material additional costs on Executive
(unless Executive otherwise consents thereto) and (ii) the Company will not be
liable for the failure to take any such steps or for the imposition of any tax
or penalty pursuant to Section 409A.
Without limitation of the preceding
paragraph, the parties agree that:
(i) With
respect to the time period within which Executive may exercise any outstanding
stock options or stock appreciation rights, the parties agree to avoid the
imposition of Section 409A, Executive shall be entitled to exercise such options
and rights through the earliest of (i) the maximum date that is permitted under
Section 409A, (ii) the second anniversary of the date of Executive’s termination
or death or Disability, as applicable (or any longer period during which
executive officers generally are permitted to exercise stock options or stock
appreciation rights under such circumstances) and (iii) if Executive's
employment is terminated by the Company for Cause or by Executive other than for
Good Reason (and not by reason of death or Disability), Executive shall be
entitled to exercise such options and rights through such date as is prescribed
under the applicable incentive plan and grant documentation, and further
provided that in no event will the option or stock appreciation right remain
exercisable beyond its original term.
(ii) For
purposes of Section 9(c) and Section 14 of this Agreement, the Company shall pay
the fees and expenses of the Accounting Firm and/or the legal fees and expense
incurred as a result of any contest under Section 14 not later than the end of
the calendar year following the calendar year in which the related work is
performed or the expenses are incurred by the Accounting Firm or Executive, as
applicable, and the Company shall pay all other amounts that it is required to
pay to or on behalf of Executive under Section 9(c) of this Agreement not later
than the end of the calendar year following the calendar year in which the
related Taxes are remitted to the applicable taxing authority. The
amount of such fees and expenses that the Company is obligated to pay in any
given calendar year shall not affect the legal fees and expenses that the
Company is obligated to pay in any other calendar year, and Executive’s right to
have the Company pay such legal fees and expenses may not be liquidated or
exchanged for any other benefit.
(iii) Subject
to paragraph (iv) below, except as otherwise provided herein, each lump sum
payment that is to be made pursuant to this Agreement, other than the payments
described in Sections 7(b) and 8(a) of this Agreement, shall be made not later
than ninety (90) days following the date of the event giving rise to such lump
sum cash payment.
(iv) If
Executive is a “specified employee,” defined under Section 409A and as
determined by the Company in good faith in accordance with the Company’s
policies, on the date of his termination from employment with the Company, to
the extent required in order to comply with Section 409A, cash amounts to be
paid under Sections 7, 8 and 9 of this Agreement on account of Executive’s
termination of employment for any reason other than death (other than Accrued
Amounts) and any other amounts deemed to be “nonqualified deferred compensation”
under Section 409A shall be paid to Executive on the earlier of (i) the first
business day after the date that is six (6) months following Executive’s
“separation from service” within the meaning of Section 409A and (ii)
Executive’s death subsequent to Executive’s termination of employment for any
reason other than death, in each case, with interest from the date on which
payment would otherwise have been made, calculated at the applicable federal
rate provided under Section 7872(f)(2)(A) of the Code (“Interest”).
(v) Any
Gross-Up Payment described in Section 9(c) and any payments or reimbursements of
life or health insurance expenses pursuant to Section 7(b) shall be made by the
end of the calendar year next following the calendar year in which the related
taxes are remitted to the taxing authority by Executive.
(vi) Any
payment to be made pursuant to Section 9(a) of this Agreement shall be made upon
the Change in Control but in no event later than two and one-half (2 ½) months
following the year in which the Change in Control occurred.
(vii) Each
of the payments described in this Agreement shall be classified as a “separate
payment” under Section 409A. As used in this Agreement, a “termination of
employment” (or words of similar meaning) shall mean a “separation from service”
under Code Section 409A (and the Treasury Regulations promulgated thereunder)
and, subject to Section 13(d) of this Agreement, any benefit or amount to be
paid to, or with respect to, Executive, shall not be made until Executive has a
“separation from service” within the meaning of Section 409A of the
Code
Section
19. Advance
Notice of Prospective Employment. Executive agrees that
following the termination of his employment, prior to accepting employment with,
or agreeing to perform services for, any entity that competes with the Company,
he will notify the Company in writing of Executive’s intentions so as to provide
the Company with the opportunity to assess whether Executive’s employment or
retention may potentially violate any provisions of this Agreement.
Section
20. Miscellaneous
Provisions.
(a) Notices. All
notices required or permitted under this Agreement shall be in writing and shall
be deemed effective upon personal delivery or upon deposit with (i) the United
States Postal Service, by registered or certified mail, postage prepaid, or (ii)
a reliable overnight courier service, addressed to the other party at the
address set forth above (in the case of the Company,
"Attention: Chairman of the Compensation Committee").
(b) Pronouns. Whenever
the context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular forms of
nouns and pronouns shall include the plural, and vice versa.
(c) Entire
Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement,
including, but not limited to, the Employment Agreement dated as of May 9, 2006
between Executive and the Company, as heretofore
amended. Notwithstanding the foregoing, all prior grant or award
agreements relating to stock options and restricted stock will remain in effect
except to the extent explicitly modified by this Agreement.
(d) Amendment. This
Agreement may be amended or modified only by a written instrument executed by
both the Company and Executive.
(e) Governing
Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of New York, without regard to
its conflict of law principles.
(f) Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of both parties and their respective successors and assigns; provided, however, that the
obligations of Executive are personal and shall not be assigned or delegated by
him.
(g) Waiver. No
delays or omissions by the Company or Executive in exercising any right under
this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company or Executive on any
one occasion shall be effective only in that instance and shall not be construed
as a bar or waiver of any right on any other occasion.
(h) Captions. The
captions appearing in this Agreement are for the convenience of reference only
and in no way define, limit or affect the scope or substance of any section of
this Agreement.
(i) Severability. In
case any provision of this Agreement shall be held by a court with jurisdiction
over the parties to this Agreement to be invalid, illegal or otherwise
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
(j) Cooperation of the
Parties. The Company and Executive agree to make all
reasonable efforts to cooperate to insure compliance with this
Agreement.
(k) Duration of
Terms. The respective rights and obligations of the parties
hereunder shall survive any termination of Executive’ employment, the Term or
this Agreement to the extent necessary to give effect to such rights and
obligations.
(l) Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first written
above.
|
COMPANY
inVentiv
Health, Inc.
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EXECUTIVE
|
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By:
/s/ Per X.X. Xxxxxxx
Name: Per
X.X. Xxxxxxx
Member,
Compensation Committee of the Board of Directors
|
By: /s/ Xxxx Xxxxxx
Name: Xxxx
Xxxxxx
|
|
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx
Xxxxxxxx
Member,
Compensation Committee of the Board of Directors
|
