EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 1st day of
September, 2000, between PROFESSIONAL DETAILING, INC., a Delaware corporation
(the "Company"), having its principal place of business at 00 Xxxxxxxxxxxx Xxxx,
Xxxxx Xxxxxx Xxxxx, Xxx Xxxxxx 00000, and XXXXXXX XXXXXXX, residing at 000
Xxxxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000 (the "Executive").
WITNESSETH:
WHEREAS, the Company believes that it would benefit from the application
of the Executive's particular and unique skills, experiences and background in
connection with the management and operation of the Company, and wishes to
employ the Executive as Executive Vice President -- Corporate Development; and
WHEREAS, the parties desire by this Agreement to set forth the terms and
conditions of the employment relationship between the Company and the Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
in this Agreement, the Company and the Executive agree as follows:
1. Employment and Duties. The Company hereby employs the Executive as
Executive Vice President -- Corporate Development on the terms and conditions
set forth in this Agreement and Executive agrees to accept such employment
subject to the terms and conditions of this Agreement. The Executive shall be
responsible for all phases of (a) the Company's corporate development activity
including merger and acquisition activity (including related integration
activities), strategic investment activity and private equity relationships; (b)
investor relations matters and investment banking relationships; and (c) such
other duties as are assigned to him by the Company's Chief Executive Officer
("CEO") which are commensurate with his position with the Company. In connection
with the foregoing, the Executive shall coordinate all corporate development and
investor relation matters with senior members of the Company's management senior
management of the Company's subsidiaries and the Board of Directors. The
Executive shall report to and be supervised by the CEO. The Executive shall be
based at the Company's offices in Upper Saddle River, New Jersey or such other
place that shall constitute the Company's headquarters.
The Executive agrees to devote his entire business time, attention and
energies to the business and interests of the Company during the Employment
Period. The Executive shall not accept any other employment or engage in any
other business activity during the Employment Period; however, the Executive may
devote a reasonable portion of the Executive's personal time to personal
financial affairs and nonprofit public service activities; provided, however,
that such activities do not adversely impact Executive's performance of his
duties hereunder. The Executive agrees to abide by the rules, regulations,
instructions, personnel practices and policies of the Company and any changes
therein which may be adopted from time to time by the Company, including, but
not limited to, those relating to the protection of the Company's proprietary
trade secrets and confidential information.
2. Term. The term of this Agreement shall commence on September 1, 2000
(the "Commencement Date"), and shall terminate on August 31, 2002, unless
terminated earlier, or extended, in accordance with the terms of this Agreement
(the "Termination Date"). Such term of employment is herein sometimes referred
to as the
"Employment Term." The Employment Term shall be automatically extended for
successive one-year periods unless either party notifies the other in writing at
least 90 days before the Termination Date, or any anniversary of the Termination
Date, as the case may be, that he or it chooses not to extend the Employment
Term.
3. Compensation. As compensation for performing the services required by
this Agreement, and during the term of this Agreement, the Executive shall be
compensated as follows:
(a) Base Compensation. The Company shall pay to the Executive an
annual salary ("Base Compensation") of $155,000, payable in equal installments
pursuant to the Company's customary payroll procedures in effect for its
executive personnel at the time of payment, but in no event less frequently than
monthly, subject to withholding for applicable federal, state, and local taxes.
The Executive may be entitled to such increases in Base Compensation with
respect to each calendar year during the term of this Agreement, as shall be
determined by the Company, in its sole and absolute discretion, based on
periodic reviews of the Executive's performance.
(b) Incentive Compensation. In addition to Base Compensation, the
Executive may be entitled to receive additional compensation ("Incentive
Compensation") in the discretion of the Company. The Incentive Compensation
shall be pursuant to short-term and/or long-term incentive compensation
programs, pursuant to the Company's Variable Incentive Compensation Program. For
purposes of this Agreement, the Executive's "Pro Rata Share" of Incentive
Compensation for any calendar of the Company shall be a fraction whose numerator
shall be equal to the number of months (or parts of months) during which the
Executive was actually employed by the Company during any such calendar year and
whose denominator shall be the total number of months in such calendar year.
4. Employee Benefits. During the Employment Term and subject to the
limitations set forth in this Section 4, the Executive and his eligible
dependents shall have the right to participate in any retirement plans
(qualified and non-qualified), pension, insurance, health, disability or other
benefit plan or program that has been or is hereafter adopted by the Company (or
in which the Company participates), according to the terms of such plan or
program, on terms no less favorable than the most favorable terms granted to
executives of the Company.
5. Vacation and Leaves of Absence. The Executive shall be entitled to the
normal and customary amount of paid vacation provided to executive officers of
the Company, but in no event less than 15 days during each 12-month period,
beginning on the date of this Agreement. Any vacation days that are not taken in
a given 12-month period shall not accrue or carry-over from year to year. Upon
any termination of this Agreement (a) by the Company for "cause", or (b) by the
Executive other than for "good reason", accrued and unused vacation for the year
in which this Agreement terminates will be paid to the Executive within 10 days
of such termination based on his annual rate of Base Compensation in effect on
the date of such termination. In addition, the Executive may be granted leaves
of absence with or without pay for such valid and legitimate reasons as the
Company in its sole and absolute discretion may determine, and shall be entitled
to the same sick leave and holidays provided to other executive officers of the
Company.
6. Expenses.
(a) Business Expenses. The Executive shall be promptly reimbursed
against presentation of vouchers or receipts for all reasonable and appropriate
expenses incurred by him in connection with the performance of his duties
hereunder.
(b) Automobile Expense. During the Employment Term, in order to
facilitate the performance of the Executive's duties hereunder, and otherwise
for the convenience of the Company, the Company shall provide the Executive with
an automobile, or shall reimburse the Executive up to $550 per month in
connection with the cost of leasing an automobile, and shall pay or reimburse
Executive (upon presentation of vouchers or receipts) for the reasonable cost of
all maintenance, insurance, repairs, gas and other expenses related to such
automobile.
7. Indemnification. The Company shall (and is hereby obligated to)
indemnify (including advance payment of expenses, which expenses shall include,
without limitation, reasonable attorneys' fees) the Executive for all actions
taken by Executive as an officer of the Company or the failure of Executive to
take any action in each and every situation where the Company is obligated to
make such indemnification pursuant to applicable law and the relevant portions
of the Company's Certificate of Incorporation and By-Laws.
8. Termination and Termination Benefits.
(a) Termination by the Company.
(ii) For Cause. Notwithstanding any provision contained
herein, the Company may terminate this Agreement at any time during the
Employment Term for "cause". For purposes of this subsection 8(a)(i), "cause"
shall mean (1) the continuing failure by the Executive to substantially perform
his duties hereunder for any reason other than total or partial incapacity due
to physical or mental illness, (2) gross negligence or gross malfeasance on the
part of the Executive in the performance of his duties hereunder that
demonstrably cause harm to the Company, or (3) the conviction of the Executive,
by a court of competent jurisdiction, of a felony or other crime involving moral
turpitude. Termination pursuant to this subsection 8(a)(i) shall be effective
immediately upon giving the Executive written notice thereof stating the reason
or reasons therefor with respect to clauses (2) and (3) above, and 15 days after
written notice thereof from the Company to the Executive specifying the acts or
omissions constituting the failure and requesting that they be remedied with
respect to clause (1) above, but only if the Executive has not cured such
failure within such 15 day period. In the event of a termination pursuant to
this subsection 8(a)(i), the Executive shall be entitled to payment of his Base
Compensation and the benefits pursuant to Section 4 hereof up to the effective
date of such termination.
(ii) Disability. If due to illness, physical or mental
disability, or other incapacity, the Executive shall fail, for a total 90 days
during any 120 day period ("Disability"), to substantially perform the principal
duties required by this Agreement, the Company may terminate this Agreement upon
30 days' written notice to the Executive; provided, however that if the
Executive commences to perform the duties required by this Agreement within such
30-day period and performs such services for 25 out of 30 of the ensuing work
days, then such notice shall be void. In the event of a termination pursuant to
this subsection 8(a)(ii), the Executive shall be (1) paid his Base Compensation
until the Termination Date and his Pro Rata Share of any Incentive Compensation
to which he would have been entitled for the year in which such termination
occurs, and (2) provided with employee benefits pursuant to Section 4, to the
extent available, for the remainder of the Employment Term; provided, however,
that any compensation to be paid to the Executive pursuant to this subsection
8(a)(ii) shall be offset against any payments received by the Executive pursuant
to any policy of disability insurance the premiums of which are paid for by the
Company. Nothing herein shall be construed to violate any Federal or State law
including the Family
and Medical Leave Act of 1993, 27 U.S.C.S. ss.2601 et seq., and the Americans
With Disabilities Act, 42 U.S.C.S. ss.12101 et seq.
(b) Termination by the Executive. The Executive may terminate this
Agreement at any time during the Employment Term for "good reason" upon 90 days'
written notice to the Company (during which period the Executive shall, if
requested in writing by the Company, continue to perform his duties as specified
under this Agreement). "Good reason" shall mean: (1) the Company's failure to
make any of the payments or provide any of the benefits to the Executive under
this Agreement; (2) the Company's material breach of any provision of this
Agreement; (3) a material reduction in the Executive's responsibilities
(provided, however, "good reason" shall not include a reduction in Executive's
responsibilities if such reduction is a result of Executive's failure to perform
his duties in a manner satisfactory to the Company); or (5) a reduction in the
Executive's Base Compensation (other than a pro rata reduction in Base
Compensation applicable to all senior executives of the Company); provided,
however, that the Company has not cured, or made substantial efforts to cure,
such failure or breach within the aforementioned 90 day period.
(c) Termination Compensation. In the event of a termination of this
Agreement (a) by the Company without cause (as defined in subsection 8(a)(i)
hereof), or (b) by the Executive for "good reason" pursuant to subsection 8(b)
above, the Executive shall be paid, in consideration of the post-termination
non-compete and non-solicitation agreements set forth in Section 10: (1) his
Base Compensation up to the effective date of such termination; (2) his full
share of any Incentive Compensation payable to him for the year in which the
termination occurs; and (3) a lump sum payment (hereinafter "Termination
Compensation") equal to the net present value of 50% of the average cash
compensation (including Base Compensation and Incentive Compensation) paid to,
or accrued for, the Executive in the calendar year immediately preceding the
calendar year in which the termination occurs. Payment of Termination
Compensation to the Executive shall occur no later than 14 days following the
effective date of the Executive's termination. For purposes of this subsection
8(c), the date of termination of the Executive's employment shall be date on
which the Executive ceases to perform services for the Company.
(d) Stock Options and Other Benefits. In the event that the
Executive is terminated for reasons other than for "cause" or in the event the
Executive terminates this Agreement for "good reason," any stock options then
held by the Executive and/or any other benefits subject to specified vesting
criteria, shall immediately vest in the Executive; provided, however, all stock
options then held by the Executive and/or any other benefits subject to
specified vesting criteria shall expire and/or terminate 90 days after the date
this Agreement is terminated pursuant to subsections 8(a)(i) or 8(b). The
Company agrees to take such steps and to execute such documents as shall be
necessary to effectuate the foregoing.
(e) Death Benefit. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of the Executive's death.
In such event the Company shall pay Executive's Base Salary to estate, through
the end of the month in which such death occurs. In addition, the Company shall
pay to Executive's estate, the Pro Rata Share of any Incentive Compensation to
which Executive would have been entitled for the year in which such death
occurs.
(f) No Mitigation. The Executive shall not be required to mitigate
the amount of any payments provided for by this Agreement by seeking employment
or otherwise, nor shall the amount of any payment
or benefit provided in this Agreement be reduced by any compensation or benefit
earned by the Executive after termination of his employment.
(g) Survival. The provisions of Sections 7, 8, 9, 10, 11, and 12
shall survive the termination of this Agreement.
9. Company Property. All advertising, promotional, sales, suppliers,
manufacturers and other materials or articles or information, including without
limitation data processing reports, customer lists, customer sales analyses,
invoices, product lists, price lists or information, samples, or any other
materials or data of any kind furnished to the Executive by the Company or
developed by the Executive on behalf of the Company or at the Company's
direction or for the Company's use or otherwise in connection with the
Executive's employment hereunder, are and shall remain the sole and confidential
property of the Company; if the Company requests the return of such materials at
any time during or at or after the termination of the Executive's employment,
the Executive shall immediately deliver the same to the Company.
10. Covenant Not To Compete.
(a) No Solicitation or Competition. During the term of this
Agreement and for a period of twelve months after termination of the Executive's
employment with the Company for any reason, the Executive shall not, directly or
indirectly, solicit, induce, encourage or attempt to influence any client,
customer, employee, consultant, independent contractor, salesman or supplier of
the Company to cease to do business or terminate his employment with the
Company, and shall not engage in (as a principal, partner, director, officer,
agent, employee, consultant or otherwise) or be financially interested in any
business competing with the Company anywhere in the United States. Nothing
contained in this Section 10 shall prevent the Executive from holding for
investment not more than five percent (5%) of any class of equity securities of
a company whose securities are publicly traded or from engaging in any
activities that are not in competition with the business activities of the
Company.
(b) Confidentiality of Company Property. During the effectiveness of
this Agreement and at all times thereafter, the Executive shall not use for his
personal benefit, or disclose, communicate or divulge to, or use for the direct
or indirect benefit of any person, firm, association or company other than the
Company, any material referred to in Section 9 above unless such material has
been made publicly available by the Company. Company Property includes
"Confidential Information" defined as any information disclosed to the Executive
or known to the Executive as a consequence of, or through the Executive's
employment with the Company (including information conceived, originated,
discovered or developed by the Executive), about the Company or the Company's
clients or customers' business operations, processes, products, research and
development, manufacturing methods, marketing, sales costs, pricing, inventions,
improvements, discoveries and ideas (whether patentable or not), and financial
information. Confidential Information also means any formula, pattern,
procedure, method, device or compilation of information which is used in the
company's business or the company's clients or customers' business, and which
gives the Company and/or its clients and customers an opportunity to obtain an
advantage over competitors. The Executive understand that as a manager the
Executive will be exposed to a broad base of information about the company
operations nationwide and will receive detailed information about the Company's
customers from the Company and from the employees the Executive supervise.
(c) Saving Clause. If the period of time or the area specified in
subsection (a) above should be adjudged unreasonable in any proceeding, then the
period of time shall be reduced by such number of months or
the area shall be reduced by the elimination of such portion thereof or both so
that such restrictions may be enforced in such area and for such time as is
adjudged to be reasonable. If the Executive violates any of the restrictions
contained in the foregoing subsection (a), the restrictive period shall not run
in favor of the Executive from the time of the commencement of any such
violation until such time as such violation shall be cured by the Executive to
the satisfaction of Company.
11. Executive's Representation and Warranties. The Executive represents
and warrants to the Company as follows:
(a) All facts concerning the Executive's background, education,
experience and employment history as described to the Company by the Executive
are true and correct in all material respects;
(b) The Executive's execution of this Agreement and employment with
the Company does not and will not conflict with any obligations that the
Executive has to any current or former employer, any other individual,
corporation, partnership, association, trust or any other entity or
organization, including any instrumentality of government;
(c) The Executive has not brought to the Company, and will not bring
to the Company, any materials, documents or other property of any nature that is
the confidential property of another party or entity;
(d) All files, records, compilations, reports, studies, manuals,
memoranda, notebooks, documents, financial reports and statements,
correspondence, and other confidential information whether prepared by the
Executive or otherwise coming into the possession of the Executive, and all
copies thereof, are, and shall remain, the exclusive property of the Company,
and shall be delivered immediately to the Company in the event o the Executive's
termination or at any other time if requested by the Company.
(e) Executive acknowledges that the foregoing representation and
warranties are a material inducement to the Company entering into this Agreement
and that in the event that any of these representation and warranties, Executive
agrees to indemnify and hold harmless the Company from and against any and all
claims, actions, losses and damages (including but not limited to, reasonable
attorneys' fees and costs) incurred by the Company, and the Company shall have
the right to terminate Executive for cause.
12. Miscellaneous.
(a) Integration; Amendment. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior
understandings and agreements between the parties with respect to the matters
set forth herein. No amendments or additions to this Agreement shall be binding
unless in writing and signed by both parties.
(b) Severability. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable law or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited, or invalid, but the remainder of this Agreement shall not be invalid
and shall be given full force and effect so far as possible.
(c) Waivers. The failure or delay of any party at any time to
require performance by the other party of any provision of this Agreement, even
if known, shall not affect the right of such party to require performance of
that provision or to exercise any right, power, or remedy hereunder, and any
waiver by any party of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right, power, or
remedy under this
Agreement. No notice to or demand on any party in any case shall, of itself,
entitle such party to other or further notice or demand in similar or other
circumstances.
(d) Power and Authority. The Company represents and warrants to the
Executive that it has the requisite corporate power to enter into this Agreement
and perform the terms hereof; that the execution, delivery and performance of
this Agreement by it has been duly authorized by all appropriate corporate
action; and that this Agreement represents the valid and legally binding
obligation of the Company and is enforceable against it in accordance with its
terms.
(e) Burden and Benefit; Survival. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, personal and legal representatives, successors and assigns.
(f) Governing Law; Headings. This Agreement and its construction,
performance, and enforceability shall be governed by, and construed in
accordance with, the laws of the State of New Jersey. Headings and titles herein
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
(g) Notices. All notices called for under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally or by
confirmed facsimile transmission and followed promptly by mail, or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at their respective addresses (or at such other address for a party as
shall be specified by like notice; provided that notices of a change of address
shall be effective only upon receipt thereof) as set forth in the preamble to
this Agreement or to any other address or addressee as any party entitled to
receive notice under this Agreement shall designate, from time to time, to
others in the manner provided in this subsection 12(g) for the service of
Notices.
Any notice delivered to the party hereto to whom it is addressed
shall be deemed to have been given and received on the day it was received;
provided, however, that if such day is not a business day then the notice shall
be deemed to have been given and received on the business day next following
such day. Any notice sent by facsimile transmission shall be deemed to have been
given and received on the business day next following the day of transmission.
(h) Arbitration; Remedies. Any dispute or controversy arising under
this Agreement or as a result of or in connection with Executive's employment
(other than disputes arising under Section 10) shall be arbitrated and settled
pursuant to the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association which are then in effect. This provision shall
also apply to any and all claims that may be brought under any federal or state
anti-discrimination or employment statute, rule or regulation, including, but
not limited to, claims under; the National Labor Relations Act; Title VII of the
Civil Rights Act; Section 1981 through 1988 of Title 42 of the United States
Code; the Employee Retirement Income Security Act; the Immigration Reform and
Control Act; the Americans with Disabilities Act; the Age Discrimination in
Employment Act; the Fair Labor Standards Act; the Occupational Safety and Health
Act; the Family and Medical Leave Act and/or the Equal Pay Act. The decision of
the arbitrator and award, if any, is final and binding on the parties and the
judgement may be entered in any court having jurisdiction thereof. The parties
will agree upon an arbitrator from the list of labor arbitrators supplied by the
American Arbitration Association. The parties understand and agree, however,
that disputes arising under Section 10 of this Agreement may be brought in a
court of law or equity without submission to arbitration.
(i) Jurisdiction. Except as otherwise provided for herein, each of
the parties: (a) submits to the exclusive jurisdiction of any state court
sitting in Bergen County, New Jersey or federal court sitting in New Jersey in
any action or proceeding arising out of or relating to this Agreement; (b)
agrees that all claims in respect of the action or proceeding may be heard and
determined in any such court; (c) agrees not to bring any action or proceeding
arising out of or relating to this Agreement in any other court; and (d) waives
any right such party may have to a trial by jury with respect to any action or
proceeding arising out of or relating to this Agreement. Each of the parties
waives any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety or other security that might
be required of any other party with respect thereto. Any party may make service
on another party by sending or delivering a copy of the process to the party to
be served at the address and in the manner provided for giving of notices in
Section 12(g). Nothing in this Section 12(i), however, shall affect the right of
any party to serve legal process in any other manner permitted by law.
(j) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday on which federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
THIS AGREEMENT CONTAINS VERY IMPORTANT TERMS GOVERNING YOUR EMPLOYMENT. IN
PARTICULAR, PARAGRAPH 10 AFFECTS YOUR ABILITY TO TAKE CERTAIN ACTIONS FOLLOWING
THE TERMINATION OF THIS AGREEMENT. YOU SHOULD SEEK ADVICE FROM YOUR ATTORNEY
REGARDING ANY MATTER RELATING TO THIS AGREEMENT. BY EXECUTING THIS AGREEMENT,
YOU ARE AFFIRMING THAT YOU HAVE HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT AND
TO CONSULT WITH YOUR ATTORNEY IF YOU SO DESIRED, THAT YOU UNDERSTAND THE MEANING
AND SIGNIFICANCE OF ALL OF ITS PROVISIONS, THAT NO REPRESENTATIONS OR PROMISES
HAVE BEEN MADE TO YOU REGARDING YOUR EMPLOYMENT WHICH ARE NOT SET FORTH IN THIS
AGREEMENT, AND THAT YOU ARE FREELY SIGNING THIS AGREEMENT TO OBTAIN EMPLOYMENT
WITH THE COMPANY.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
/s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
PROFESSIONAL DETAILING, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Chief Executive Officer
