Exhibit 10.11
EMPLOYMENT AGREEMENT
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Employment Agreement, dated the 12th day of August, 1997 by and between
Xxxxxx X. Xxxxxxxx (the "Employee") and Boron, XxXxxx & Associates, Inc., a
Delaware corporation (the "Company").
W I T N E S S E T H:
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WHEREAS, the Employee is a senior officer of the Company; and
WHEREAS, the parties hereto desire to assure that the Employee's knowledge
and experience will continue to be available to the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. Employment. Subject to the provisions of Section 6, the Company hereby
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employs the Employee and the Employee accepts such employment upon the terms and
conditions hereinafter set forth.
2. Term of Employment. Subject to the provisions of Section 6, the term
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of the Employee's employment pursuant to this Agreement shall commence on and as
of July 2, 1997 (the "Effective Date") and shall terminate on the second
anniversary of the Effective Date; provided, however, that this Agreement shall
be extended automatically for successive one-year periods ending on the relevant
anniversary of Effective Date unless either party gives the other notice not
less than 90 days prior to the scheduled termination date (i.e., the second
anniversary of the Effective Date or any later anniversary) of his or its
determination not to extend this Agreement, whereupon it shall terminate as of
such anniversary date. The period during which the Employee serves as an
employee of the Company in accordance with and subject to the provisions of this
Agreement is referred to in this Agreement as the "Term of Employment."
3. Duties.
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During the Term of Employment, the Employee (a) shall serve as an employee
of the Company with the title and position of Executive Vice President--Finance
and Chief Financial Officer, reporting to the Chief Executive Officer of the
Company, or such other or additional titles and positions involving the
management of the financial affairs of the Company, or such alternative or
additional duties, as shall be specified by the Chief Executive Officer of the
Company, (b) shall perform such duties and responsibilities on behalf of the
Company and its subsidiaries (as defined in Section 10) as may be reasonably
determined by
the Chief Executive Officer of the Company, consistent with the general area of
the Employee's experience and skills, (c) upon the request of the Board of
Directors of the Company, shall serve as an officer and/or director of any of
the Company's subsidiaries, and (d) shall render all services reasonably
incident to the foregoing. The Employee hereby accepts such employment, agrees
to serve the Company in the capacities indicated, and agrees to use his best
efforts in, and shall devote his full working time, attention, skill and
energies to, the advancement of the interests of the Company and its
subsidiaries and the performance of his duties and responsibilities hereunder.
4. Salary and Bonus.
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(a) During the Term of Employment, the Company shall pay the Employee a
salary at the annual rate of $140,000 per annum (the "Base Salary"). Such Base
Salary shall be subject to withholding under applicable law, shall be pro rated
for partial years and shall be payable in periodic installments not less
frequently than monthly in accordance with the Company's usual practice for
executive officers of the Company as in effect from time to time.
(b) For each calendar year or portion thereof during the Term of
Employment (including any extensions thereof), the Employee shall be eligible to
receive a bonus if and to the extent determined by and in the discretion of the
Compensation Committee of the Board of Directors of the Company, or the Board of
Directors of the Company if a Compensation Committee is not then appointed, in
its discretion, based upon its evaluation of the Employee's performance during
such year or portion thereof.
5. Benefits.
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(a) During the Term of Employment, the Employee shall be entitled to
participate in any and all medical, pension, profit sharing, dental and life
insurance plans and disability income plans, retirement arrangements and other
employment benefits as in effect from time to time for executive officers of the
Company generally. Such participation shall be subject to (i) the terms of the
applicable plan documents (including, as applicable, provisions granting
discretion to the Board of Directors of the Company or any administrative or
other committee provided for therein or contemplated thereby) and (ii) generally
applicable policies of the Company.
(b) The Company shall promptly reimburse the Employee for all
reasonable business expenses incurred by the Employee during the Term of
Employment in accordance with the Company's practices for executive officers of
the Company with a similar level of responsibility, as in effect from time to
time.
(c) During the Term of Employment, the Employee shall receive paid
vacation annually in accordance with the Company's practices for executive
officers, as in effect from time to time, but in any event not less than four
(4) weeks per calendar year.
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(d) Compliance with the provisions of this Section 5 shall in no way
create or be deemed to create any obligation, express or implied, on the part of
the Company or any of its affiliates with respect to the continuation of any
particular benefit or other plan or arrangement maintained by them or their
subsidiaries as of or prior to the date hereof or the creation and maintenance
of any particular benefit or other plan or arrangement at any time after the
date hereof, except as contemplated by Sections 5(b) and 5(c).
6. Termination of Employment of the Employee. Prior to the expiration of
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the Term of Employment as provided in Section 2 hereof, this Agreement may or
shall (as applicable) be terminated as follows:
(a) At any time by the mutual consent of the Employee and the Company.
(b) At any time for "cause" by the Company upon written notice to the
Employee. For purposes of this Agreement, a termination shall be for "cause"
if:
(i) the Employee shall commit an act of fraud, embezzlement,
misappropriation or breach of fiduciary duty against the Company or any
of its subsidiaries, or shall be convicted by a court of competent
jurisdiction of, or shall plead guilty or nolo contendere to, any
felony or any crime involving moral turpitude; or
(ii) the Employee shall commit a breach of any of the covenants,
terms or provisions hereof, which breach has not been remedied within
thirty (30) days after delivery to the Employee by the Board of
Directors of the Company of written notice of the facts constituting
the breach; or
(iii) the Employee shall have failed to comply with written
instructions from the Company's Chief Executive Officer, which are
reasonable and consistent with Section 3, or shall have substantially
failed to perform the Employee's duties hereunder for a period of
thirty (30) days after written notice from the Company.
Upon termination for cause as provided in this Section 6(b), (A) all
obligations of the Company under this Agreement shall thereupon immediately
terminate other than any obligation of the Company with respect to earned but
unpaid Base Salary and benefits contemplated hereby to the extent then accrued
or vested, it being understood that upon any such termination the Employee shall
not be entitled to receive (1) any bonus or portion thereof from the Company or
any of its affiliates with respect to any period during or after the Term of
Employment or (2) any continuation of benefits except as may be required by law,
and (B) the Company shall have any and all rights and remedies under this
Agreement and applicable law.
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(c) Upon the death or upon the permanent disability (as defined below)
of the Employee continuing for a period in excess of one hundred eighty
(180) consecutive days. Upon any such termination of the Employee's
employment as provided in this Section 6(c), all obligations of the Company
under this Agreement shall thereupon immediately terminate other than (i)
any obligation of the Company with respect to earned but unpaid Base Salary
and benefits contemplated hereby to the extent accrued or vested through
the date of termination or (ii) any continuation of benefits required by
law. As used herein, the terms "permanent disability" or "permanently
disabled" shall mean the inability of the Employee, by reason of injury,
illness or other similar cause, to perform a major part of his duties and
responsibilities in connection with the conduct of the business and affairs
of the Company, as determined reasonably and in good faith by the Company.
(d) At any time by the Employee upon forty-five (45) days' prior
written notice to the Company. Upon termination by the Employee as provided
in this Section 6(d), all obligations of the Company under this Agreement
thereupon immediately shall terminate other than any obligation of the
Company with respect to earned but unpaid Base Salary and benefits
contemplated hereby to the extent accrued or vested through the date of
termination, it being understood that in the event of such a termination
the Employee shall not be entitled to receive (i) any bonus not then paid
from the Company or any of its affiliates with respect to any period during
or after the Term of Employment or (ii) any continuation of benefits except
to the extent required by law.
(e) At any time without "cause" (as defined in Section 6(b)) by the
Company upon written notice to the Employee. In the event of termination of
the Employee by the Company pursuant to this Section 6(e), the Company
shall (i) continue to make Base Salary payments to the Employee from the
date of termination through the first anniversary of the date on which such
a termination occurs, in any such case in the manner contemplated by
Section 4(a), and (ii) continue the benefit arrangements applicable to the
Employee for as long as Base Salary payments continue, with such amounts
agreed by the parties hereto to be in full satisfaction, compromise and
release of any claims arising out of any termination of the Employee's
employment pursuant to this Section 6(e) or Section 6(f), and in either
case with such amounts to be contingent upon the Employee's delivery of a
general release of any and all claims (other than those arising under this
Agreement and any stock options then in effect in accordance with their
terms) upon termination of employment in a form reasonably satisfactory to
the Company, it being understood that no severance benefits shall be
provided unless and until the Employee determines to execute and deliver
such release.
(f) By the Employee in the event of a material default by the Company
in the performance of its obligations hereunder, after the Employee has
given written notice to the Company specifying such default by the Company
and giving the Company a reasonable time, not less than 30 days, to conform
its performance to its
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obligations hereunder. The rights and obligations of the parties shall be
as set forth in Section 6(e) in the event of any such termination.
(g) In the event either party gives a notice of non-renewal to be
effective as of the second anniversary of the Effective Date or any
subsequent anniversary thereof, then all obligations of the parties
hereunder shall terminate as of the end of the Term of Employment except as
contemplated by Section 7 hereof.
(h) Notwithstanding termination of this Agreement as provided in this
Section 6 or any other termination of the Employee's employment with the
Company, the Employee's obligations under Section 7 hereof shall survive
any termination of the Employee's employment with the Company at any time
and for any reason.
7. Confidentiality; Proprietary Rights; Non-Competition.
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(a) In the course of performing services hereunder, on behalf of the
Company (for purposes of this Section 7 including all predecessors of the
Company) and its affiliates, the Employee has had and from time to time
will have access to confidential records, data, customer lists, trade
secrets and other confidential information owned or used in the course of
business by the Company and its affiliates (the "Confidential
Information"). The Employee agrees (a) to hold the Confidential Information
in strict confidence, (b) not to disclose the Confidential Information to
any person (other than in the regular business of the Company or its
affiliates), and (c) not to use, directly or indirectly, any of the
Confidential Information for any competitive or commercial purpose other
than on behalf of the Company and its affiliates; provided, however, that
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the limitations set forth above shall not apply to any Confidential
Information which (i) is then generally known to the public; (ii) became or
becomes generally known to the public through no fault of the Employee; or
(iii) is disclosed in accordance with an order of a court of competent
jurisdiction or applicable law. Upon the termination of the Employee's
employment with the Company for any reason, all Confidential Information
(including, without limitation, all data, memoranda, customer lists, notes,
programs and other papers and items, and reproductions thereof relating to
the foregoing matters) in the Employee's possession or control, shall be
immediately returned to the Company or the applicable affiliate and remain
in its or their possession.
(b) The Employee recognizes that the Company and its affiliates possess
a proprietary interest in all of the information described in Section 7(a)
and have the exclusive right and privilege to use, protect by copyright,
patent or trademark, or otherwise exploit the processes, ideas and concepts
described therein to the exclusion of the Employee, except as otherwise
agreed between the Company and the Employee in writing. The Employee
expressly agrees that any products, inventions, discoveries or improvements
made by the Employee or his agents or affiliates in the course of the
Employee's employment, including any of the foregoing which is based on or
arises out of the information described in Section 7(a), shall be the
property of and inure to the
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exclusive benefit of the Company. The Employee further agrees that any and
all products, inventions, discoveries or improvements developed by the
Employee (whether or not able to be protected by copyright, patent or
trademark) during the course of his employment, or involving the use of the
time, materials or other resources of the Company or any of its affiliates,
shall be promptly disclosed to the Company and shall become the exclusive
property of the Company, and the Employee shall execute and deliver any and
all documents necessary or appropriate to implement the foregoing.
(c) The Employee agrees, while he is employed by the Company, to offer
or otherwise make known or available to it, as directed by the Board of
Directors of the Company and without additional compensation or
consideration, any business prospects, contracts or other business
opportunities that he may discover, find, develop or otherwise have
available to him in the business of providing marketing services to and
performing related activities for pharmaceutical companies and healthcare
telemarketing, and further agrees that any such prospects, contacts or
other business opportunities shall be the property of the Company.
(d) As a material inducement to and a condition precedent of the
Company's payment obligations hereunder, in consideration of the payment of
the consideration to be paid by the Company pursuant to Section 7(d)(ii)
below and the other covenants set forth herein, and to preserve the
goodwill associated with the Boron, XxXxxx business, the Employee hereby
agrees to the following restrictions on his activities:
(i) Non-Competition Agreement. The Employee hereby agrees that
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during the period commencing on the date hereof and ending on the date
which is the first anniversary of the date on which the Employee's
employment with the Company and its subsidiaries terminates for any
reason, he will not, without the express written consent of the
Company, directly or indirectly, anywhere in the United States, engage
in any activity which is, or participate or invest in, or provide or
facilitate the provision of financing to, or assist (whether as owner,
part-owner, shareholder, partner, director, officer, trustee, employee,
agent or consultant, or in any other capacity), any business,
organization or person other than the Company (or any affiliate of the
Company), or any such business, organization or person involving, or
which is, a family member of the Employee, whose business, activities,
products or services are competitive with any of the business,
activities, products or services conducted or offered by the Company
and its subsidiaries during any period in which the Employee serves as
an officer or employee of the Company or any of its subsidiaries, which
business, activities, products and services shall include in any event
the provision of marketing services to and related marketing activities
involving pharmaceutical companies, as well as healthcare
telemarketing. Without implied limitation, the forgoing covenant shall
include hiring or engaging or attempting to hire or engage for or on
behalf of himself or any such competitor any officer or employee of the
Company or any of its direct and/or indirect
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subsidiaries, encouraging for or on behalf of himself or any such
competitor any such officer or employee to terminate his or her
relationship or employment with the Company or any of its direct or
indirect subsidiaries, soliciting for or on behalf of himself or any
such competitor any client of the Company or any of its direct or
indirect subsidiaries and diverting to any person (as hereinafter
defined) any client or business opportunity of the Company or any of
any of its direct or indirect subsidiaries. Notwithstanding anything
herein to the contrary, the Employee may make passive investments in
any enterprise the shares of which are publicly traded if such
investment constitutes less than five (5) percent of the equity of such
enterprise. Neither the Employee nor any business entity controlled by
him is a party to any contract, commitment, arrangement or agreement
which could, following the date hereof, restrain or restrict the
Company or any subsidiary or affiliate of the Company from carrying on
its business or restrain or restrict the Employee from performing his
obligations under this Employment Agreement, and as of the date of this
Agreement the Employee has no business interests in or relating to the
pharmaceutical industry whatsoever other than his interest in the
Company, other than interests in public companies of less than five (5)
percent. For purposes of this Agreement, any reference to the
subsidiaries of the Company shall be deemed to include all entities
directly or indirectly controlled by it through an ownership of more
than fifty percent (50%) of the voting interests, and the term "person"
shall mean an individual, a corporation, an association, a partnership,
an estate, a trust, and any other entity or organization.
(ii) Non-Competition Payment. In consideration of the execution
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and delivery by the Employee of this Agreement, on the date hereof the
Company shall make a cash payment to the Employee in the amount of
$1,500.
The parties acknowledge that the time, scope, geographic area and other
provisions of Section 7(d) of this Agreement have been specifically negotiated
by sophisticated commercial parties and agree that (x) all such provisions are
reasonable under the circumstances and are given as an integral part of such
employment arrangements between the Company and the Employee and (y) but for the
covenants of the Employee contained in this Section 7(d), the Company would not
have entered into such employment arrangements. The Employee has independently
consulted with his counsel and has been advised in all respects concerning the
reasonableness and propriety of the covenants contained herein, with specific
regard to the business to be conducted by Company and its subsidiaries.
8. Specific Performance; Severability. It is specifically understood and
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agreed that any breach of the provisions of Section 7 hereof by the Employee is
likely to result in irreparable injury to the Company and/or its affiliates,
that the remedy at law alone will be an inadequate remedy for such breach and
that, in addition to any other remedy it may have, the Company shall be entitled
to enforce the specific performance of this Agreement by the Employee and to
seek both temporary and permanent injunctive relief (to the extent permitted
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by law), without the necessity of posting a bond or proving actual damages, but
without limitation of their right to damages and all other remedies available to
them, it being understood that injunctive relief is in addition to, and not in
lieu of, such other remedies. In case any of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, any such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had been
limited or modified (consistent with its general intent) to the extent necessary
to make it valid, legal and enforceable. In the event that any covenant
contained in Section 7(d) of this Agreement shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its extending for too
great a period of time or over too great a geographical area or by reason of its
being too extensive in any other respect, it shall be interpreted to extend only
over the maximum period of time for which it may be enforceable and/or over the
maximum geographical area as to which it may be enforceable and/or to the
maximum extent in all other respects as to which it may be enforceable, all as
determined by such court in such action. If it shall not be possible to so
limit or modify any invalid, illegal or unenforceable provision or part of a
provision of this Agreement, this Agreement shall be construed as if such
invalid, illegal or unenforceable provision or part of a provision had never
been contained in this Agreement. The existence of any claim or cause of action
which the Employee may have against the Company or any of its subsidiaries or
affiliates shall not constitute a defense or bar to the enforcement of any of
the provisions of this Agreement.
9. Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if
faxed (with transmission acknowledgment received), delivered personally or
mailed by certified or registered mail (return receipt requested) as follows:
To the Company: Boron, XxXxxx & Associates, Inc.
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, XX 00000
To the Employee: Xxxxxx X. Xxxxxxxx
c/o Boron, XxXxxx & Associates, Inc.
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, XX 00000
or to such other address or fax number of which any party may notify the other
parties as provided above. Notices shall be effective as of the date of such
delivery, mailing or fax.
10. Miscellaneous. This Agreement shall be governed by and construed
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under the laws of the State of New Jersey, and shall not be amended, modified or
discharged in whole or in part except by an agreement in writing signed by both
of the parties hereto. The failure of either of the parties to require the
performance of a term or obligation or to exercise any right under this
Agreement or the waiver of any breach hereunder shall not prevent subsequent
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enforcement of such term or obligation or exercise of such right or the
enforcement at any time of any other right hereunder or be deemed a waiver of
any subsequent breach of the provision so breached, or of any other breach
hereunder. This Agreement shall inure to the benefit of, and be binding upon
and assignable to, successors of the Company by way of merger, consolidation or
sale and may not be assigned by the Employee. This Agreement supersedes and
terminates all prior understandings and agreements between the parties (or their
predecessors) relating to the subject matter hereof. For purposes of this
Agreement, the term "person" means an individual, corporation, partnership,
association, trust or any unincorporated organization; a "subsidiary" of a
person means any corporation more than 50 percent of whose outstanding voting
securities, or any partnership, joint venture or other entity more than 50
percent of whose total equity interest, is directly or indirectly owned by such
person; and an "affiliate" of a person shall mean, with respect to a person or
entity, any person or entity which directly or indirectly controls, is
controlled by, or is under common control with such person or entity.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first set forth above.
BORON, XXXXXX & ASSOCIATES, INC.
By:/s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: President
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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