SEPARATION AGREEMENT
SEPARATION
AGREEMENT (the “Agreement”) dated as
of November 5, 2009 by and between INVENTIV HEALTH, INC. (the “Company”) and XXXXXXX
XXXXXXX, an individual (the “Executive”).
WHEREAS, the Company and
Executive are parties to an Amended & Restated Employment Agreement dated as
of December 24, 2008 (the “Employment
Agreement”) and the parties hereby intend to completely resolve all
issues relating to the employment of Executive, including compensation and
benefits, and the termination of Executive’s employment with the Company
effective December 30, 2009 (the “Effective
Date”).
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree to the
following:
ARTICLE
I. PAYMENTS BY THE
COMPANY
1.01 Payment; Assistance. Executive
will be paid his salary through the Effective Date through the course of normal
payroll cycles. As consideration for Executive entering into this
Agreement, and for Executive’s compliance with the obligations of Executive
hereunder, the Company also agrees to pay to Executive the sum of Seven Hundred
Fifty Thousand Dollars ($750,000), less normal payroll withholdings required by
federal, state, and/or local law (“Payment”). The
Payment will made on or about January 31, 2010. In consideration of
the Payment, for a period of not more than 90 days following the Effective Date,
Executive will provide such advice and assistance in connection with
transitional, client retention and business development matters as may
reasonably be requested by the Company, it being understood that Executive will
employ commercially reasonable, good faith efforts to cooperate and assist in
the transition of his responsibilities, retention of clients and continuity in
business development with clients with whom Executive has established relations;
provided,
however, such advice and consultation will be limited to such time as
Executive may reasonably make available in light of his expected full time
engagement on other business matters following the Effective Date.
ARTICLE
II. BENEFITS
2.01 Vacation. Executive
acknowledges that Executive is entitled to no payments in respect of any unused
vacation time or other leave.
2.02 Life Insurance. Executive’s
eligibility for basic and voluntary life insurance ends on the Effective
Date. Executive is eligible to port or convert Executive’s
basic life insurance within 31 days of termination. Executive is
eligible to convert Executive’s voluntary life insurance within 31 days of
termination.
2.03 Healthcare Coverage Continuation.
Executive will continue to receive healthcare coverage through the
Effective Date. Executive will have the option to continue coverage
for an additional period of up to eighteen (18) months or longer as provided by
law, effective the first of the month following the date of
termination. In order to continue health care coverage, Executive
must elect the continuation by submitting the completed election
form. If Executive elects to continue health care coverage under
COBRA thereafter, Executive will be responsible for paying the subsequent COBRA
premium within the timeframes set forth by COBRA.
2.04 Stock
Incentives. Executive and the Company agree that effective
upon the Effective Date, except as expressly provided in the last sentence of
this Section 2.04, all stock option, restricted stock grant or other stock
incentive agreements to which Executive is party with the Company, and all
unvested grants and awards thereunder, shall terminate immediately and shall be
of no further force or effect, it being the intent and understanding of the
parties that the Payment shall be in lieu of any other compensation or benefits
hereunder, including any payments provided under the Employment Agreement, any
stock-related incentives, consideration for the advice and assistance to be
provided by Executive hereafter, service as a member of the Board of Directors
of the Company after the Effective Date or any other services provided by
Executive in any capacity following the Effective Date. Notwithstanding the
immediately preceding sentence, and in accordance with the Company’s 2006 Stock
Incentive Plan (i) all shares underlying any restricted stock grants that have
vested in accordance with their terms prior to the Effective Date shall not be
forfeited hereby and shall, to the extent such shares not have been sold or
otherwise disposed of by Executive, remain the property of Executive, and (ii)
all stock options that have vested and remain unexercised as of the Effective
Date shall not terminate immediately upon the Effective Date, but instead such
vested stock options shall remain exercisable by Executive for the remaining
period of the term of the applicable option but in no event beyond the ninetieth
(90th) day
following termination of Executive’s service as a member of the Board of
Directors of the Company, upon which date all such options, to the extent not
exercised prior thereto, shall be terminated.
2.05 No Other Compensation or
Benefits. Except as expressly provided above, all health and
welfare benefits, and other fringe benefits, compensation or allowances of any
kind, in respect of Executive’ employment by the Company shall terminate as of
the Effective Date and except as expressly provided herein Executive shall not
be entitled to any other payments or compensation of any kind, including without
limitation under the Employment Agreement..
2.06 Resignation of
Offices. On the Effective Date, Executive hereby tenders his
resignation of all offices held by Executive at the Company and its
subsidiaries. In addition, Executive hereby tenders his resignation
as a member of the Board of Directors of each of the subsidiaries of the
Company. Executive and the Company currently intend that Executive
will continue to serve as a member of the Board of Directors of the Company
until the next annual meeting of shareholders, provided that Executive shall not
be entitled to any additional compensation or vesting of equity incentives, all
of which shall be terminated and retired as provided in Section 2.04 above upon
the execution and delivery of this Agreement.
2.07
Indemnification. Executive shall continue to be indemnified
and held harmless for actions taken during the period of his service in his
capacity as an officer and director of the Company and its
subsidiaries to the fullest extent such indemnification is currently provided
and consistent with applicable law.
ARTICLE
III. RELEASE
3.01 In
consideration of the Payment and other benefits provided hereunder, Executive,
on Executive’s own behalf and on behalf of any spouse, heirs, dependents,
beneficiaries, executors, attorneys, administrators, successors, and assigns
(collectively, the “Releasors”), agrees
to release and discharge the Company and any parent, subsidiary, affiliate,
successor, predecessor, or otherwise related companies, and the past, present,
and future employees, agents, officers, attorneys, directors, owners, members,
shareholders and employee benefit programs of any of them, and their agents and
insurers (collectively, the “Releasees”), from all
claims, demands, liabilities, or causes of action, known or unknown, of any
nature whatsoever, from the beginning of time until the Effective Date, which
the Releasors have or may have against the Releasees, including without
limitation claims related to Executive’s employment with the Releasees or the
termination of that employment, provided, however, that nothing in this
Agreement shall either waive any rights or claims of Executive that arise after
the Effective Date or impair or preclude Executive’s right to take action to
enforce the terms of this Agreement. Executive’s release includes any
rights or claims Executive may have under any federal, state or local
ordinances, statutes or common law, including but not limited to Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Equal Pay Act, the Americans with Disabilities Act, the Fair Labor Standards
Act, the Employee Retirement Income Security Act (ERISA), the Family and Medical
Leave Act, or any other federal, state or local laws or regulations prohibiting
employment discrimination or regulating employment or termination of employment,
to the fullest extent such claims may be released under the law. This
also includes a release by Executive of any claims for wrongful discharge,
breach of contract, severance pay, overtime pay, vacation pay, bonus, or
commissions and any common law claims whatsoever, to the fullest extent such
claims may be released under the law.
3.02 Nothing
in this Agreement shall be construed as an admission of liability by the
Releasees, and the Releasees specifically disclaim liability to or wrongful
treatment of the Executive or the Releasors.
3.03 Executive
represents that Executive has not filed any complaints or charges against
Employer with the Equal Employment Opportunity Commission, or with any other
federal, state or local agency or court, and covenants that Executive will not
seek to recover on any claim released in this Agreement.
ARTICLE
IV. NON-COMPETITION &
NON-SOLICITATION
In
consideration of the Payment, following the Effective Date and for the period
set forth therein and, in the case of Sections 4(a), (b) and (c) thereof, for a
period of 24 months following the Effective Date, Executive agrees to comply
with and observe each of the provisions of Section 4 of the Employment Agreement
in respect of non-competition, non-solicitation, confidentiality and each of the
other matters specified therein, as if such provisions were set forth
herein. Executive
acknowledges that his agreement to comply with his obligations following the
Effective Date under Section 4 of the Employment Agreement, as amended hereby,
is a material inducement for the Company to enter into this Agreement and to
make the Payment to Executive hereunder.
ARTICLE
V. PERIOD FOR REVIEW AND
CONSIDERATION OF AGREEMENT
Executive
acknowledges that he has been given a period of twenty-one (21) calendar days to
review and consider this Agreement before signing it. Executive represents and
agrees that Executive has had an adequate opportunity to consult with an
attorney if Executive so desires, that Executive has carefully read and fully
understands all of the provisions of this Agreement, that Executive has been
given a reasonable time within which to consider this Agreement, and that
Executive is voluntarily entering into this Agreement.
ARTICLE
VI. BINDING
AGREEMENT
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, administrators, representatives, executors, parents,
successors, affiliates, and assigns.
ARTICLE
VII. CONFIDENTIALITY
In
connection with Executive’s employment at the Company, Executive has or may have
been exposed to certain information, material and data relating to the Company,
its subsidiaries and affiliates, and the personnel and business plans for the
Company and its subsidiaries and affiliates, all of which are strictly
confidential. Executive shall keep such information strictly
confidential and shall not release or divulge such information to any third
party whatsoever, without the prior written permission of the Company, except as
required by law. The parties agree that the terms of this
Agreement are confidential, and neither party shall disclose the terms hereof to
any other person or entity (other than affiliates, attorneys, accountants and
other entities or persons of or retained by such party, who then themselves
shall be subject to these confidentiality restrictions), without the prior
written permission of the other party hereto, except as required by law. The
foregoing agreements shall be in addition to and not in limitation of the
confidentiality obligations of Executive under Section 4 of the Employment
Agreement.
ARTICLE
VIII. REVOCATION
PERIOD
This
Agreement will not become effective or binding on the parties until seven (7)
calendar days after it is signed, during which time Executive may revoke this
Agreement if Executive wishes to do so. Any revocation must be in
writing and directed to Xxxxx Xxxxxx, Chief Financial Officer of the Company.
Upon completion of the seven (7) day period, this agreement will become binding
and effective without rights of revocation.
ARTICLE
IX. MISCELLANEOUS
9.01 The
parties agree that any dispute or action relating to a breach of this Agreement
shall be resolved through binding arbitration which shall be governed by the
American Arbitration Association (“AAA”), and the
arbitration proceeding shall take place in the Central New Jersey
area.
9.02 Executive
acknowledges that no representations other than those contained herein have been
made to Executive to induce or influence Executive’s execution of this Agreement
and that Executive has entered into it knowingly and voluntarily. This Agreement
sets forth the entire agreement between the parties, and except as set forth
herein, fully supersedes any and all prior oral or written agreements or
understandings between the parties pertaining to the subject matter of this
Agreement; provided, however that nothing in this Agreement is intended to or
shall be construed to modify, impair or terminate any obligation of Executive
that by its terms continues after Executive’s separation from employment with
the Company. This Agreement can be modified or amended only by
express written consent signed by both Executive and the Company.
9.03 Each of
Executive and the Company agrees not to make any negative, derogatory, or
disparaging comments about or critical of the other and their respective
affiliates and personnel., including but not limited to Executive’s employment
with the Company, the Company’s work product, or any other dealings of any kind
between Executive and the Company, to any third party, specifically including,
without limitation, any past, present or prospective employee of the Company or
any past or present customer or client of the Company. This paragraph
shall not apply to communications with legal counsel and other advisors, any
disclosure or statement relating to any proceeding to enforce the terms of this
Agreement, or as expressly authorized by law or lawful process.
9.04 If any
provision in this Agreement is found to be unenforceable, invalid or illegal,
all other provisions will remain fully enforceable. Executive agrees
that if the release set forth herein in invalid or unenforceable, or was not
entered into knowingly or voluntarily, Executive will, at the Company’s option,
either return any payments made to Executive or execute a release in a form
satisfactory to the Company that is lawful and enforceable.
9.05 Executive
agrees to cooperate fully with the Company regarding any litigation,
arbitration, administrative proceedings, investigations, or other matters of a
similar nature involving the Company. If Executive is subpoenaed or
otherwise contacted by any party regarding any such matter, Executive agrees
immediately to notify the Company. The Company agrees to provide
reimbursement for Executive's reasonable and pre-approved expenses associated
with this cooperation.
9.06 Executive
agrees that the Company and any affiliated or related companies shall have no
obligation to reemploy Executive in the future.
9.07 As
a material condition of this Agreement, Executive further represents and
warrants that Executive has transferred, or will transfer to the Company within
five (5) days after the Effective Date, all property of and documents relating
to the Company which came into Executive’s possession or were developed by
Executive in the course of Executive’s employment with the Company, including
but not limited to files, keys, cell phone, reports, customer lists,
computers, records and furniture (collectively, “Company
Property”). Executive further represents and warrants that
Executive has retained no copies of any such materials or other items; and
further, if Executive should discover that any such materials or other items, or
copies thereof, are in Executive’s possession or control, Executive will
promptly return them to the Company without disclosure to others. All
payments hereunder are contingent on Executive’s return of any and all the
Company Property. Notwithstanding the foregoing, the Company agrees
to provide Executive reasonable access to the Company’s offices and an email
account until the Effective Date on such terms and conditions as the parties
mutually shall agree.
Read
this document carefully before signing. It contains a general release
of legal claims.
Executive
Printed Name: XXXXXXX XXXXXXX
Signature: /s/ Xxxxxxx
Xxxxxxx Date: November 5, 2009
INVENTIV
HEALTH, INC.
By:
/s/ R. Xxxxx Xxxxxx
Date: November 5,
2009
Title: Chief Executive
Officer
