EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT, dated as of January 1, 2003 (the “Effective Date”) between Ventiv
Health, Inc., a Delaware corporation with its principal place of business at
000
Xxxxxxxxxx Xxxx (the "Company"), and Xxxxx Xxxxxx residing at 000 Xxxxxxxxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000 (the "Executive").
W
I T
N E S S E T H
:
WHEREAS,
the Company desires to employ the Executive as its Vice President Finance &
Strategic Planning of Ventiv Health U.S. Sales and the Executive desires to
accept such employment, all on the terms and conditions specified herein;
and
WHEREAS,
the Executive and the Company desire to set forth in writing all of their
respective duties, rights and obligations with respect to the Executive's
employment by the Company; and
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Employment.
The
Company hereby offers to employ the Executive, and the Executive hereby accepts
employment by the Company, in the capacity and upon the terms and conditions
hereinafter set forth.
2. Duties.
The
Executive shall serve as the Company's Vice President, Finance & Strategic
Planning and shall perform such duties, functions and responsibilities as are
associated with and incident to that position and as the Company may, from
time
to time, require of him. The Executive shall serve the Company faithfully,
conscientiously and to the best of the Executive's ability and shall promote
the
interests and reputation of the Company. Unless prevented by sickness or
disability, the Executive shall devote all of the Executive's time, attention,
knowledge, energy and skills, during normal working hours, and at such other
times as the Executive's duties may require, to the duties of the Executive's
employment. The principal place of employment of the Executive shall be at
Employer’s Somerset, NJ area office and/or such other location as shall be
necessary for the Executive to discharge the Executive's duties hereunder.
The
Executive acknowledges that in the course of employment the Executive may be
required, from time to time, to travel on behalf of the Company.
3. Compensation
and Benefits.
As full
and complete compensation for the Executive's execution and delivery of this
Agreement and performance of any services hereunder, the Company shall pay,
grant or provide the Executive, and the Executive agrees to accept, the
following compensation and benefits:
a. Base
Salary.
The
Company shall pay the Executive a base salary at an annual rate of $150,000
payable at such times and in accordance with the Company's customary payroll
practices as they may be adopted or modified from time to time. On an annual
basis or at such other times as the Company may determine, the Company may
review the Executive's performance and determine whether, in its sole
discretion, the Company will increase (but not decrease) the Executive's base
salary. At no time during the pendency of this agreement shall the Company,
without the written consent of the Executive, decrease the Executive’s base
pay.
b. Fringe
Benefits.
The
Company shall afford the opportunity to participate in any health care, dental,
disability insurance, retirement, savings and any other employee benefits plans,
policies or arrangements which the Company maintains for its employees in
accordance with the written terms of such plans, policies or arrangements.
Nothing in this Agreement shall require the Company or its affiliates to
establish, maintain or continue any benefit plans, policies or arrangements
or
restrict the right of the Company or any of its affiliates to amend, modify
or
terminate any such benefit plan, policy or arrangement.
c. Bonus.
The
Executive shall be eligible for a bonus in each calendar year, based on the
Executive’s success in reaching or exceeding performance objectives as
determined by the Chief Executive Officer or his/her designee, the amount of
such bonus, if any, to be determined in the discretion of the Company.
Notwithstanding the foregoing, if the Executive remains employed by the Company
through the bonus payout date, the Executive shall be entitled to a bonus range
of 0 - 70% of the Executive’s then current base salary, with the amount of such
bonus, if any, remaining subject to the discretion of the Company.
d.
Stock
Option Arrangements.
Subject
to the approval of the Compensation Committee of the Company’s Board of
Directors as soon as practicable after execution of this Agreement, the Company
shall grant to the Executive an option to purchase of 5,000 shares of common
stock, an Exercise Price according to the grant date, and will vest 25% per
year, 100% after four (4) years. Such grant shall be pursuant to the terms
and
conditions of the Ventiv Health, Inc. Stock Incentive Plan and the Executive’s
execution of a standard Ventiv Nonqualified Stock Option Agreement in the form
provided to the Executive by the Company. The Executive shall also be qualified
to participate in the Company’s annual and periodic stock option grant
program.
e.
Expenses.
The
Executive shall be entitled to reimbursement or payment of reasonable business
expenses in accordance with the Company's policies, as the same may be amended
from time to time in the Company's sole discretion, following the Executive's
submission of appropriate receipts, bills and/or expense reports to the Company
in accordance with such policies.
f.
Vacations,
Holidays or Temporary Leave:
The
Executive shall be entitled to take five (5)
weeks of
vacation per year, without loss or diminution of compensation in accordance
with
Companies policies. Such vacation shall be taken at such time or times
consistent with the needs of the Company's business. The Executive shall further
be entitled to the number of paid holidays, and leaves for illness or temporary
disability in accordance with the Company's policies as such policies may be
amended from time to time or terminated in the Company's sole
discretion.
g.
Car
allowance:
During
the period of the Executive’s employment by the Company, the Company shall pay
to the Executive as a car allowance the net amount of $ 500 per
month.
h.
Additional
Payments:
If
there is a Change in Control (as defined in paragraph 5(e) herein) by January
1,
2004, and the Executive is employed by the Company upon the Change in Control,
and, in the sole judgment and discretion of the Company, the Executive has
satisfactorily performed all assigned duties, including using his best efforts
to facilitate a Change in Control, the Company shall award the Executive up
to
fifty-two (52) weeks base pay, minus such deductions as may be required by
law
or reasonably requested by the Executive. The payment provided for in this
paragraph 3(h) shall be payable in two equal installments, the first installment
of twenty-six (26) weeks shall be paid to the Executive within thirty (30)
days
following the Change in Control, and the second installment of twenty-six (26)
weeks shall be paid to the Executive on the earlier of (i) the six (6) month
anniversary of the Change in Control or (ii) upon the termination Without Cause
of the Executive’s employment by the Company; provided however, that no second
installment payment shall be made hereunder in the Executive’s employment with
the surviving or resulting entity is terminated for any reason or than by the
Company Without Cause. If the Executive’s employment hereunder is terminated
Without Cause within the two months immediately preceding the Change in Control,
the Executive shall be entitled to twenty-six (26) weeks base pay pursuant
to
this paragraph 3(h), minus such deductions as may be required by law or
reasonably requested by the Executive, and any payment to which the Executive
my
be entitled pursuant to paragraph 6 (c) of this Agreement; provided however,
that no payment shall be made hereunder if the Executive’s employment is
terminated for any reason other than Without Cause or if, in the sole judgment
and discretion of the Company, The Executive fails to satisfactorily perform
all
assigned duties, including using his best efforts to facilitate a Change in
Control. The Executive acknowledges that the payments provided for in this
paragraph 3(h) are in lieu of (and not in addition to) any other payments or
benefits to which the Executive might otherwise be entitled due to a change
in
control, including but not limited to, any stay bonuses, severance payments
or
termination benefits of any kind offered to employees in connection with a
change in control, whether pursuant to a plan, arrangement, policy or otherwise;
provided however, that nothing herein shall effect the Executive’s right to
payment pursuant to paragraph 6 (c ) of this agreement.
4. Non-Competition,
Confidentiality, Discoveries and Works:
a. Non-Competition:
During
the period of The Executive’s employment at the Company and for twelve (12)
months following the termination, for any reason, of The Executive’s employment,
the Executive agrees not to compete in any manner, either directly or
indirectly, whether for compensation or otherwise, with the Company, or to
assist any other person or entity to compete with the Company
either:
(i) by
producing, developing or marketing, or assisting others to produce, develop
or
market, or
(ii) by
accepting employment from or having any other relationship (including, without
limitation, through owning, managing, operating, controlling
or consulting) with any entity which produces, develops or markets,
a
product, process, or service which is competitive with those products,
processes, or services of the Company, whether existing or planned for in the
future, on which the Executive has worked, or concerning which the Executive
has
in any manner acquired knowledge of or had access to Confidential Information
(as defined in Section 4(e)(iii) below), during the five (5) years preceding
termination of the Executive’s employment, provided,
however,
that it
shall not be a violation of this Agreement for The Executive to seek and/or
accept employment directly with a fully integrated pharmaceutical or bio-tech
company (i.e. one that discovers, develops, manufactures, and promotes drugs)
or
to have
beneficial ownership of less than 1% of the outstanding amount of any class
of
securities listed on a national securities exchange or quoted on an inter-dealer
quotation system.
b. Non-Solicitation:
During
the period of the Executive’s employment at the Company and for twelve (12)
months following the termination, for any reason, of the Executive’s employment,
the Executive agrees that the Executive will not, either on The Executive’s own
behalf or on behalf of any other person or entity (other than for the benefit
of
the Company), directly or indirectly, (i) solicit any person or entity that
is a
customer of the Company, or has been a customer of the Company during the prior
twelve (12) months, to purchase any products or services the Company provides
to
the customer, or (ii) interfere with any of the Company’s business
relationships.
c. No-Hire:
During
the period of the Executive’s employment at the Company and for twelve (12)
months following the termination, for any reason, of the Executive’s employment,
the Executive agrees that the Executive will not, either on the Executive’s own
behalf or on behalf of any other person or entity, directly or indirectly,
hire,
solicit or encourage to leave the employ of or engagement by the Company any
person who is then an employee or contractor of the Company or who was an
employee or contractor of the Company within twelve (12) months of the date
of
such hiring, soliciting, or encouragement to leave the Company.
d. Geographic
Scope:
The
foregoing restrictions shall apply in the “Restricted Area” which means
(i) the
geographic sales region(s) assigned to the Executive by the Company and/or
serviced by the Executive during the twelve (12) month period prior to
termination of the Executive’s employment and the fifty (50) mile radius around
any office of the Company out of which the Executive worked, provided services
to or provided supervision over, and
(ii) any
location, storefront, address or place of business where a Covered Customer
is
present and available for solicitation.
The
Executive will not circumvent the purpose of any restriction contained in
Sections 4(a), 4(b) or 4(c) by engaging in business outside the geographic
region covered by the above definition through remote means like telephone,
correspondence or computerized communication. “Covered Customer” means those
customers, entities and/or persons who did business with the Company and that
the Executive either (x) received Confidential Information about in the course
of his/her duties, (y) had contact with within the last twelve (12) month period
of employment by the Company, or (z) supervised contact with within the last
twelve (12) month period of employment with the Company.
e. Confidentiality:
(i) During
the period of the Executive’s employment at the Company and for all time
following the termination, for any reason, of the Executive’s employment, the
Executive shall hold all Confidential Information of the Company in a fiduciary
capacity and agrees not to take any action which would constitute or facilitate
the Unauthorized use or disclosure of Confidential Information.
The
Executive further agrees to take all reasonable measures to prevent the
Unauthorized use and disclosure of Confidential Information and to prevent
Unauthorized persons or entities from obtaining or using Confidential
Information. The terms “Confidential Information” and “Unauthorized” shall have
the meanings set forth in Sections 4(e)(iii) and (iv) of this Agreement
respectively.
(ii) Promptly
upon termination, for any reason, of the Executive’s employment with the
Company, the Executive agrees to deliver to the Company all property and
materials within the Executive’s possession or control which belong to the
Company or which contain Confidential Information.
(iii) As
used
in this Agreement, the term “Confidential Information” shall mean trade secrets,
confidential or proprietary information, and all other information, documents
or
materials, owned, developed or possessed by the Company, its parents,
subsidiaries or affiliates, their respective predecessors and successors,
whether in tangible or intangible form, that is not generally known to the
public. Confidential Information includes, but is not limited to,
(a) financial information, (b) products, (c) product and service
costs, prices, profits and sales, (d) new business ideas, (e) business
strategies, (f) product and service plans, (g) marketing plans and
studies, (h) forecasts, (i) budgets, (j) projections,
(k) computer programs, (l) data bases and the documentation (and
information contained therein), (m) computer access codes and similar
information, (n) software ideas, (o) know-how, technologies, concepts
and designs, (p) research projects and all information connected with
research and development efforts, (q) records, (r) business
relationships, methods and recommendations, (s) existing or prospective
client, customer, vendor and supplier information (including, but not limited
to, identities, needs, transaction histories, volumes, characteristics,
agreements, prices, identities of individual contacts, and spending, preferences
or habits), (t) training manuals and similar materials used by the Company
in conducting its business operations, (u) skills, responsibilities,
compensation and personnel files of Company employees, directors and independent
contractors, (v) competitive analyses, (w) contracts with other
parties, and (x) other confidential or proprietary information that has not
been made available to the general public by the Company’s senior
management.
(iv) As
used
in this Agreement, the term “Unauthorized” shall mean: (a) in contravention of
the Company’s policies or procedures; (b) otherwise inconsistent with the
Company’s measures to protect its interests in the Confidential Information; (c)
in contravention of any lawful instruction or directive, either written or
oral,
of a Company employee empowered to issue such instruction or directive; (d)
in
contravention of any duty existing under law or contract; or (e) to the
detriment of the Company.
(v) In
the
event that the Executive is requested by any governmental or judicial authority
to disclose any Confidential Information, the Executive shall give the Company
prompt notice of such request (including, by giving the Company a copy of such
request if it is in writing), such that the Company may seek a protective order
or other appropriate relief, and in any such proceeding the Executive shall
disclose only so much of the Confidential Information as is required to be
disclosed.
f. Discoveries
and Works:
All
discoveries and works made or conceived by the Executive during and in the
course of his/her 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 all educational and
sales materials or other publications which relate to Company’s current
business. The 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/her 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 the Executive’s employment hereunder, are
made, disclosed, reduce to a tangible or written form or description, or are
reduced to practice by the Executive and which pertain to work performed by
the
Executive while with, and in his/her capacity as an Executive of, the Company
shall, as between the Executive and the Company presumed to have been made
during the Executive’s employment by the Company.
g. Representations,
Warranties and Acknowledgements
(i) The
Executive acknowledges that (a) the Company considers Confidential Information
to be commercially and competitively valuable to the Company and critical to
its
success; (b) Unauthorized use or disclosure of Confidential Information would
cause irreparable harm to the Company; and (c) by this Agreement, the Company
is
taking reasonable steps to protect its legitimate interests in its Confidential
Information.
(ii) The
Executive also acknowledges that businesses that are competitive with the
Company include, but are not limited to, any business involving marketing,
consulting to or contract sales, detailing and marketing support or any other
marketing services for pharmaceutical or any other related health care or
biotechnology companies, including competitive e-health businesses.
(iii) The
Executive represents and warrants to the Company that he/she is not a party
to
any agreement, or non-competition or other covenant or restriction contained
in
any agreement, commitment, arrangement or understanding (whether oral or
written), that in any way conflicts with or limits the Executive’s ability to
commence or continue to render services to the Company or that would otherwise
limit the Executive’s ability to perform all responsibilities in accordance with
the terms and subject to the conditions of the Executive’s
employment.
(iv) The
Executive acknowledges that certain accounts are national and international
in
scope and the location of the Company’s customers is not dependent on the
geographic location of the Executive or the Company.
(v) The
Executive consents
and agrees that, during the Executive’s employment with Company and thereafter,
the Company may review, audit, intercept, access and disclose all communications
created, received or sent over the electronic mail and internet access system
provided by Company with or without notice to the Executive and that such
review, audit, interception, access, or disclosure may occur during or after
working hours. The Executive further consents and agrees that the Company may,
at any time, access and review the contents of all computers, computer disks,
other data storage equipment and devices, files, desks, drawers, closets,
cabinets and work stations which are either on Company’s premises or which are
owned or provided by Company.
h. Remedies:
In the
event of breach or threatened breach by the Executive of any provision of
Section 4 hereof, the Company shall be entitled to obtain (i) temporary,
preliminary and permanent injunctive relief, in each case without the posting
of
any bond or other security, (ii) damages and an equitable accounting of all
earnings, profits and other benefits arising from such breach, or threatened
breach, (iii) recovery of all attorney’s fees and costs incurred by the Company
in obtaining such relief, (iv) repayment of any severance benefits paid to
the
Executive pursuant to this Agreement or any severance benefit agreement, plan
or
arrangement of the Company, and (v) any other legal and equitable relief to
which it may be entitled, including any and all monetary damages which Company
may incur as a result of said breach or threatened breach. Pending arbitration
pursuant to Section 7 of the Agreement, the Company shall be entitled to cease
making any payments or providing any benefits to the Executive and to obtain
temporary and preliminary injunctive relief as described in Section 4(h)(i)
from
a court of competent jurisdiction. The Company may pursue any remedy available,
including declaratory relief, concurrently or consecutively, in any order,
and
the pursuit of one such remedy at any time will not be deemed an election of
remedies or waiver of the right to pursue any other remedy.
i. Early
Resolution Conference:
This
Agreement is understood to be clear and enforceable as written and is executed
by both parties on that basis. However, should the Executive later challenge
any
provision as unclear, unenforceable, or inapplicable to activity that the
Executive intends to engage in, the Executive will first notify Company in
writing and meet with a Company representative and a neutral mediator (if the
Company elects to retain one at its expense) to discuss resolution of any
disputes between the parties. The Executive will provide this notification
at
least fourteen (14) days before the Executive engages in any activity on behalf
of a competing business or engages in other activity that could foreseeably
fall
within a questioned restriction. The failure to comply with this requirement
shall waive the Executive's right to challenge the reasonable scope, clarity,
applicability, or enforceability of the Agreement and its restrictions at a
later time. All rights of both parties will be preserved if the Early Resolution
Conference requirement is complied with even if no agreement is reached in
the
conference.
5. Termination
of Employment:
a. The
Executive is an employee at-will, and either the Executive or the Company may
terminate the employment relationship at any time for any reason with or without
Cause (as defined below). The date upon which the termination of the Executive’s
employment becomes effective pursuant to this Agreement shall be referred to
herein as the “Termination Date.” The Termination Date shall be the date upon
which any of the following events shall occur:
(i) the
death
of the Executive;
(ii) the
Disability (as defined below) of the Executive;
(iii) the
Company’s delivery of a written notice to the Executive of a termination of the
Executive's employment for Cause (as defined below);
(iv) the
Company’s delivery of a written notice to the Executive of a termination of the
Executive’s employment Without Cause (as defined below); or
(v)
the
Executive’s delivery of a written notice to the Company of a termination of the
Executive’s employment for Good Reason (as delivered below); or
(v) resignation
by the Executive.
For
purposes of this Agreement, the Executive’s employment will not be deemed to
have automatically terminated upon a Change in Control (as defined
below).
b. For
purposes of this Agreement, the “Disability” of the Executive shall mean the
Executive’s inability, because of mental or physical illness or incapacity,
whether total or partial, to perform one or more of the primary duties of the
Executive’s employment with or without reasonable accommodation, and which
continues for a length of time that exceeds any period of leave following which
the Executive may have a right to be restored to the same job or to an
equivalent job under federal, state or local law.
c. For
purposes of this Agreement, the term "Cause" shall mean the Executive's (i)
conviction or entry of a plea of guilty or nolo contendere, with respect to
any
felony; (ii) commission of any act of willful misconduct, gross negligence,
fraud or dishonesty; (iii) violation of any term of this Agreement or any
written policy of the Company; or (iv) inability to meet the performance
objectives for the respective position.
d. For
purposes of this Agreement, "Without Cause" shall mean for any reason(s)
whatsoever (other than the reasons described in Sections 5(a)(i), 5(a)(ii),
5(a)(iii), and 5(a)(v) hereof).
e.
For
purposes of this Agreement, “Good Reason” shall mean (i) a significant
diminution in the Executive’s duties or title; (ii) substantial reduction is the
Executive’s compensation or benefits; (iii) the relocation of the offices of
Ventiv Health U.S. Sales more than one hundred (100) miles from the Company’s
Somerset, New Jersey office; (iv) a material breach of the Agreement by the
Company not cured within thirty (30) days written notice.
f.
For
purposes of this Agreement, a “Change in Control” of the Company means a sale,
transfer or other disposition of all or substantially all of the assets of
the
Company, or the consummation of a merger or consolidation of the Company or
a
sale or exchange of capital stock of the Company, in either case as a result
of
which the stockholders of the Company immediately prior to such transaction
own,
in the aggregate, less than a majority of the outstanding voting capital stock
or equity interests of the surviving or resulting entity.
6. Payments
Upon Termination of Employment.
a. Death
or Disability.
If the
Executive's employment hereunder is terminated due to the Executive's death
or
Disability pursuant to Sections 5(a)(i) or (ii) hereof, the Company shall pay
or
provide to the Executive, the Executive's designated beneficiary or to the
Executive's estate (i) all base salary pursuant to Section 3(a) hereof and
any
vacation pay pursuant to Section 3(d) hereof, in each case which has been earned
but unpaid as of the Termination Date; and (ii) any benefits to which the
Executive may be entitled under any employee benefits plan, policy or
arrangement pursuant to Section 3(b) hereof (including, but not limited to,
life
insurance and disability insurance) in which he/she is a participant in
accordance with the written terms of such plan, policy or arrangement up to
and
including the Termination Date.
b. Termination
for Cause or Resignation.
If the
Executive's employment hereunder is terminated by the Company for Cause pursuant
to Section 5(a)(iii) or due to the Executive's resignation pursuant to Section
5(a)(v), the Company shall pay or provide to the Executive (i) all base salary
pursuant to Section 3(a) hereof and any vacation pay pursuant to Section 3(d)
hereof, in each case which has been earned but unpaid as of the Termination
Date; and (ii) any benefits to which the Executive may be entitled under any
employee benefits plan, policy or arrangement pursuant to Section 3(b) hereof
in
which he/she is a participant in accordance with the written terms of such
plan,
policy or arrangement up to and including the Termination Date
c. Termination
Without Cause or for Good Reason.
If the
Executive's employment hereunder is terminated by the Company Without Cause
pursuant to Section 5(a)(iv) above or For Good Reason pursuant to Section 5
(a)(v) the Company shall award the Executive severance benefits, subject to
the
terms and conditions of this Agreement and of The Ventiv Health, Inc. Severance
Benefit Plan, if applicable. A lump sum payment of twenty-six (26) weeks of
the
Executive’s base pay, minus such deductions as may be required by law or
reasonably requested by the Executive to be paid out immediately. The Executive
shall keep the Company informed on whether or not the Executive has obtained
new
employment and upon request shall provide documentation to the Company regarding
the Executive’s employment status during the period in which the Executive
receives severance payments from the Company. In order to be eligible to receive
any Severance Payment pursuant to this paragraph 6, the Executive must sign,
prior to receiving such Severance Payment, a valid release and waiver of all
claims against the Company relating to the executive’s employment or the
termination thereof, in a format to be determined by the Company. No payment
shall be made hereunder until at least eight (8) days following the execution
and delivery by the Executive of the valid release and waiver.
d. No
Other Payments.
Except
as provided in this Section 6, the Executive shall not be entitled to receive
any other payments or benefits from the Company due to the termination of the
Executive's employment, including but not limited to, any employee benefits
under any of the Company's employee benefits plans or arrangements (other than
at the Executive's expense under the Consolidated Omnibus Budget Reconciliation
Act of 1985 or pursuant to the written terms of any pension benefit plan in
which the Executive is a participant in which the Company may have in effect
from time to time) or any right to severance benefits.
7. Arbitration.
a. Any
controversy or claim arising out of or relating to this Agreement, the
employment relationship between the Executive and the Company, or the
termination thereof, including the arbitrability of any controversy or claim,
which cannot be resolved amicably after a reasonable attempt to negotiate such
a
resolution (including by exhaustion of all grievance or claims procedures made
available by the Company or any employee benefit plan of the Company) shall
be
submitted to arbitration under the auspices of the American Arbitration
Association in accordance with its Commercial Dispute Resolution Procedures
and
Rules, as such rules may be amended from time to time, and at its office nearest
to the Company’s place of business where the Executive works or to which the
Executive reports. The award of the arbitrator shall be final and binding upon
the parties, and judgment may be entered with respect to such award in any
court
of competent jurisdiction. Any arbitration under this Agreement shall be
governed by and subject to the confidentiality restrictions set forth in Section
4(e) of this Agreement. The Executive acknowledges reading, prior to the signing
of this agreement, the Commercial Dispute Resolution Procedures and Rules of
the
American Arbitration Association, which are available via the internet at
xxxx://xxx.xxx.xxx. Notwithstanding the foregoing, any controversy or claim
arising out of or relating to any claim by the Company for temporary or
preliminary relief with respect to Section 4 of this Agreement need not be
resolved in arbitration and may be resolved in accordance with Section 4(h)
of
this Agreement.
b. The
Executive acknowledges that this agreement to submit to arbitration includes
all
controversies or claims of any kind (e.g., whether in contract or in tort,
statutory or common law, legal or equitable) now existing or hereafter arising
under any federal, state, local or foreign law (except claims by the Company
for
temporary or preliminary injunctive relief pursuant to Section 4 as set forth
above), including, but not limited to, the Age Discrimination in Employment
Act,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the
Family and Medical Leave Act, the Employee Retirement Income Security Act,
and
the Americans With Disabilities Act, and all similar state laws, and the
Executive hereby waives all rights there under to have a judicial tribunal
resolve such claims.
8. Deductions
and Withholding.
The
Executive agrees that the Company shall withhold from any and all compensation
payable under this Agreement all federal, state, local and/or other taxes which
the Company determines are required to be withheld under applicable statutes
and/or regulations from time to time in effect and all amounts required to
be
deducted in respect of the Executive's coverage by and participation in
applicable Executive benefit plans, policies or arrangements.
9. Entire
Agreement.
This
Agreement embodies the entire agreement of the parties with respect to the
Executive's employment and supersedes any other prior oral or written agreements
between the Executive and the Company and its affiliates. This Agreement may
not
be changed or terminated orally but only by an agreement in writing signed
by
the parties hereto.
10. Waiver.
The
waiver by the Company of a breach of any provision of this Agreement by the
Executive shall not operate or be construed as a waiver of any subsequent breach
by the Executive. The waiver by the Executive of a breach of any provision
of
this Agreement by the Company shall not operate or be construed as a waiver
of
any subsequent breach by the Company.
11. Governing
Law.
Because
Ventiv is incorporated in the state of Delaware, this Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to the choice of law rules of any state or where the
Executive is in fact required to work.
12. Jurisdiction.
Any
legal suit, action or proceeding against any party hereto arising out of or
relating to this Agreement that is not subject to arbitration pursuant to
Section 7 of this Agreement shall be instituted in a New Jersey federal or
state
court in the County of Somerset and each party hereto waives any objection
which
it may now or hereafter have to the laying of venue of any such suit, action
or
proceeding and each party hereto irrevocably submits to the jurisdiction of
any
such court in any suit, action or proceeding.
13. Assignability.
The
obligations of the Executive may not be delegated and, except as expressly
provided in Section 6(a) relating to the designation of beneficiaries, the
Executive may not, without the Company's written consent thereto, assign,
transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any interest therein. Any such attempted delegation or disposition
shall be null and void and without effect. The Company and the Executive agree
that this Agreement and all of the Company's rights and obligations hereunder
may be assigned or transferred by the Company to and may be assumed by and
become binding upon and may inure to the benefit of any affiliate of or
successor to the Company. The term "successor" shall mean (with respect to
the
Company or any of its subsidiaries) any other corporation or other business
entity, which, by merger, consolidation, purchase of the assets, or otherwise,
acquires all or a material part of the assets of the Company. Any assignment
by
the Company of its rights or obligations hereunder to any affiliate of or
successor to the Company shall not be a termination of employment for purposes
of this Agreement.
14. Severability.
If any
provision of this Agreement as applied to either party or to any circumstances
shall be adjudged by a court of competent jurisdiction or arbitrator to be
void
or unenforceable, the same shall in no way affect any other provision of this
Agreement or the validity or enforceability of this Agreement. If any court
or
arbitrator construes any of the provisions of Section 4 hereof, or any part
thereof, to be unreasonable because of the duration of such provision or the
geographic or other scope thereof, such court or arbitrator may reduce the
duration or restrict the geographic or other scope of such provision and enforce
such provision as so reduced or restricted.
15. Notices.
All
notices to the Executive hereunder shall be in writing and shall be delivered
personally, sent by overnight courier or sent by registered or certified mail,
return receipt requested, to:
Xxxxx
Xxxxxx
000
Xxxxxxxxxxx Xxxx
Xxxxxx,
Xxx Xxxxxx 00000
All
notices to the Company hereunder shall be in writing and shall be delivered
personally, sent by overnight courier or sent by registered or certified mail,
return receipt requested, to:
Ventiv
Health, Inc.
000
Xxxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Vice President, Human Resources
Either
party may change the address to which notices shall be sent by sending written
notice of such change of address to the other party.
16. Section
Headings.
The
section headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this
Agreement.
17. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which taken together shall constitute
one
and the same instrument.
18. Voluntary
Agreement.
The
Executive acknowledges that before entering into this Agreement, the Executive
has had the opportunity to consult with any attorney or other advisor of his/her
choice, and that this Section 18 of this Agreement constitutes advice from
the
Company to do so if he/she chooses. The Executive further acknowledges that
he/she has entered into this Agreement of his/her own free will, and that no
promises or representations have been made to him/her by any person to induce
him/her to enter into this Agreement other than the express terms set forth
herein. The Executive further acknowledges that he/she has read this Agreement
and understands all of its terms, including the waiver of the right to have
all
disputes with and claims against the Company decided in a judicial forum set
forth in Section 7. The Executive may take up to seven (7) days from today
to
consider, sign and return this Agreement. In addition, the Executive may revoke
this Agreement after signing it, but only by delivering a signed revocation
notice to the Company within seven (7) days of signing this Agreement. Such
a
revocation shall automatically terminate the Executive’s employment due to
resignation pursuant to Section 5(a)(v).
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first above written.
VENTIV
HEALTH, INC.
By:_/s/
Xxxxxxx Herring__________
Xxxxxxx
Xxxxxxx
President,
U.S. Sales
_/s/
Xxxxx Bassin________
Executive
signature
_________________________
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Executive’s Name
