EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated September 8, 1998, between DENDRITE
INTERNATIONAL, INC., a New Jersey Corporation ("Dendrite"), having its principal
place of business at 0000 Xx. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and
Xxxxxxxxx Xxxxxxxxxx ("Employee"), having an address at 0X Xxxxxxx Xxxx,
Xxxxxxx, XX 00000.
WHEREAS, Dendrite, its affiliates, and subsidiaries develop and own
what is referred to as Territory Management Systems and related hardware and
equipment;
WHEREAS, Employee is or desires to be employed by Dendrite and Dendrite
desires to employ Employee; and
WHEREAS, Dendrite is willing to provide certain confidential and
proprietary information to Employee for the limited purpose of enabling Employee
to carry out duties in connection with his/her employment by Dendrite.
RECITAL:
NOW, THEREFORE, it is agreed as follows:
1. EMPLOYMENT AT WILL
Dendrite hereby employs Employee, and Employee hereby accepts such
employment, as Associate Counsel of Dendrite. Dendrite hereby employs Employee
as an at-will employee. This employment may be terminated at any time for any
reason with or without cause by Dendrite. Employee agrees to provide two (2)
weeks notice to Dendrite before terminating his/her employment.
2. DUTIES
Employee shall perform those duties as may from time to time be
assigned to him/her and shall carry out any assignments related to Dendrite or
its affiliates as directed. Employee shall devote his/her full time attention,
energy, knowledge, skill and best efforts solely and exclusively to the duties
assigned to him/her which he/she shall faithfully and diligently perform.
Employee shall report to Dendrite as may be required and will fully account for
all records, data, materials or other property belonging to Dendrite or its
customers of which he/she is given custody. Dendrite may, from time to time,
establish rules and regulations and Employee shall faithfully observe these in
the performance of his/her duties. Employee shall further comply with all
policies and directives of Dendrite.
3. COMPENSATION
Dendrite shall pay Employee for his/her services a base salary at a
rate of $85,000 per annum to be paid on a semi-monthly basis in accordance with
Dendrite's regular payroll practices.
4. BENEFITS
Dendrite shall provide Employee:
(i) Business Expenses. Reimbursement for all reasonable and necessary
travel, entertainment and other out-of-pocket expenses incurred by Employee in
connection with the performance of his/her duties. Reimbursement will be made
upon the submission by the Employee of appropriate documentation and
verification of the expenses.
(ii) Other. Dendrite will provide Employee other benefits to the
same extent as may be provided to other employees generally in accordance with
Dendrite policy in effect from time to time and subject to the terms and
conditions of such benefit plans.
5. INFORMATION AND BUSINESS OPPORTUNITY
During Employee's employment with Dendrite, Employee may acquire
knowledge of (i) information that is relevant to the business of Dendrite or its
affiliates or (ii) knowledge of business opportunities pertaining to the
business in which Dendrite or its affiliates are engaged. Employee shall
promptly disclose to Dendrite that information or business opportunity but shall
not disclose it to anyone else without Dendrite's written consent.
6. DENDRITE CONFIDENTIAL INFORMATION
The Employee will, as a result of his/her employment with Dendrite,
acquire information which is proprietary and confidential to Dendrite. This
information includes, but is not limited to, Dendrite's proprietary software,
technical and commercial information, instruction and product information, the
design, "look and feel," navigation and capabilities of Dendrite's software and
products, Dendrite's proprietary training program methodology, Dendrite's
methodology for promoting its products and services to its clients, the
particularized needs and demands of Dendrite's clients and the customizations
Dendrite makes to its proprietary software to meet those clients' needs,
financial arrangements, salary and compensation information, competitive status,
pricing policies, knowledge of suppliers, technical capabilities, discoveries,
algorithms, concepts, designs, drawings, specifications, techniques, models,
data, technical manuals, training guides and manuals, research and development
materials, processes, procedures, know-how and other business affairs relating
to Dendrite. Employee will keep all such information confidential and will not
reveal it at any time to any person or entity without the express written
consent of Dendrite. This obligation is to continue in force after employment
terminates for whatever reason.
7. CLIENT CONFIDENTIAL INFORMATION
Dendrite may, from time to time, be furnished information and data
which is proprietary and confidential to its clients, customers or suppliers.
Employee will not, at any time for any reason, reveal any information provided
by any of Dendrite's clients, customers or suppliers to any person or entity
without the prior written consent of Dendrite or the applicable client, customer
or supplier. This obligation is to continue in force after employment terminates
for whatever reason.
8. RETURN OF PROPERTY
Upon termination of employment for any reason or upon the request of
Dendrite, Employee shall return to Dendrite all property which Employee
received, prepared or helped to prepare in connection with his/her employment
including, but not limited to, all confidential information and all disks,
notes, notebooks, blueprints, customer lists or other papers or material in any
tangible media or computer readable form belonging to Dendrite or any of its
customers, clients or suppliers. Employee will not retain any copies,
duplicates, reproductions or excerpts of any of the foregoing material.
9. INVENTIONS
All work performed by Employee and all materials, products,
deliverables, inventions, software, ideas, disclosures and improvements, whether
patented or unpatented, and copyrighted material made or conceived by Employee,
solely or jointly, in whole or in part, during the term of Employee's employment
by Dendrite which (i) relate to methods, apparatus, designs, products, processes
or devices sold, licensed, used or under development by Dendrite, (ii) otherwise
relate to or pertain to the present, proposed or contemplated business,
functions or operations of Dendrite, (iii) relate to Dendrite actual or
anticipated research or development, (iv) involve the use of Dendrite's
equipment, supplies or facilities, or (v) result from access to any Dendrite
assets, information, inventions or the like, in each case, are confidential
information, are the property of Dendrite and shall be deemed to be a work made
for hire. To the extent that title to any of the foregoing shall not, by
operation of law, vest in Dendrite, all right, title and interest therein are
hereby irrevocably assigned to Dendrite. Employee agrees to give Dendrite or any
person or entity designated by Dendrite, at Dendrite's expense, reasonable
assistance required to perfect its rights therein.
If Employee conceives any idea, makes any discovery or creates any
invention within one (1) year after his/her termination of employment with
Dendrite that relate to any matters pertaining to the business of Dendrite, it
shall be deemed that it was conceived while in the employ of Dendrite.
10. RESTRICTION ON FUTURE EMPLOYMENT
The Employee agrees that in the event employment with Dendrite is
terminated, for any reason, with or without cause, the Employee shall not for
one (1) year after termination of employment:
(a) Perform services that compete with or render services to any organization or
entity which competes with Dendrite in any area of the United States of America
or elsewhere where Dendrite does business as listed in Addendum 1. This list may
be updated periodically after consultation with employee; (b) Solicit any
customers or potential customers of Dendrite with whom the Employee had contact
while employed by Dendrite or who was a customer of Dendrite at any time during
the two (2) years immediately before terminations; (c) Request that any of
Dendrite's customers or suppliers discontinue doing business with it; (d)
Knowingly take any action which would disparage Dendrite or be to its
disadvantage; (e) Attempt to solicit any employee or contractor of Dendrite to
terminate employment with Dendrite.
11. NON-DISPARAGEMENT
Employee agrees that he/she will not at any time make any statement,
observation or opinion, or communicate any information (whether oral or written)
that is likely to come to the attention of any client or employee of Dendrite or
any member of the media, which statement is derogatory of or casts in a negative
light Dendrite or its officers, directors and employees or otherwise engage in
any activity which is inimical to the interests of the Company.
12. OUTSIDE CONTRACTING
Employee shall not enter into any agreements to provide any services to
any person or entity outside of his/her employment by Dendrite (an "Outside
Agreement") without the prior written express consent from Dendrite. Employee
must notify Dendrite of his/her intent to enter into an Outside Agreement
specifying therein the other party to such Outside Agreement and the type of
services to be provided by Employee. Dendrite shall not unreasonably withhold
permission to Employee to enter into Outside Agreements unless such Outside
Agreements (i) are with competitors or potential competitors of Dendrite, or
(ii) as determined in Dendrite's sole discretion, shall substantially hamper or
prohibit Employee from satisfactorily carrying out all duties assigned to
Employee by Dendrite.
13. AFTER-HOURS DEVELOPMENT
In the event that Employee shall develop any software which, pursuant
to Section 9 herein, is not the property of Dendrite, Dendrite shall have a
right of first refusal to publish and/or purchase the rights to such software.
Employee shall notify Dendrite of any such after-hours development as soon as
reasonably possible before or during the development process including a
description of the intended functions of the after-hours development and the
estimated date of completion.
14. PRIOR EMPLOYMENT
Employee represents and warrants that Employee has not taken or
otherwise misappropriated and does not have in Employee's possession or control
any confidential and proprietary information belonging to any of Employee's
prior employers or connected with or derived from Employee's services to prior
employers. Employee represents and warrants that Employee has returned to all
prior employers any and all such confidential and proprietary information.
Employee further acknowledges, represents and warrants that Dendrite has
informed Employee that Employee is not to use or cause the use of such
confidential or proprietary information in any manner whatsoever in connection
with Employee's employment by Dendrite. Employee agrees, represents and warrants
that Employee will not use such information. Employee shall indemnify and hold
harmless Dendrite from any and a all claims arising from any breach of the
representations and warranties in this Section.
15. REMEDIES
The parties agree that in the event Employee breaches or threatens to
breach this Agreement, money damages may be an inadequate remedy for Dendrite
and that Dendrite will not have an adequate remedy at law. It is understood,
therefore, that in the event of a breach or threatened breach of this Agreement
by Employee, Dendrite shall have the right to obtain from a court of competent
jurisdiction restraints or injunctions prohibiting Employee from breaching or
threatening to breach this Agreement. In that event, the parties agree that
Dendrite will not be required to post bond or other security. It is also agreed
that any restraints or injunctions issued against Employee shall be in addition
to any other remedies which Dendrite may have available to it.
16. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey without regard to the conflicts of laws.
17. NOTICES
In the event any notice is required to be given under the terms of this
Agreement, it shall be delivered in the English language, in writing, as
follows:
If to Employee: Xxxxxxxxx Xxxxxxxxxx
0X Xxxxxxx Xxxx
Xxxxxxx, XX 00000
If to Dendrite: Xxxxxxxxxxx Xxxxxx, Vice President,
General Counsel
Dendrite International, Inc.
0000 Xx. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
18. NON-ASSIGNABILITY
Employee's rights or obligations under the terms of this Agreement or
of any other agreement with Dendrite may not be assigned. Any attempted
assignment will be void as to Dendrite. Dendrite may, however, assign its rights
to any affiliated or successor entity.
19. BINDING AGREEMENT
This Agreement shall be binding upon and inure to the benefit of
Employee's heirs and personal representatives and to the successors and assigns
of Dendrite.
20. INTEGRATION
This Agreement sets forth the entire agreement between the parties
hereto and fully supersedes any and all prior negotiations, discussions,
agreements or understandings between the parties hereto pertaining to the
subject matter hereof. No representations, oral or otherwise, with respect to
the subject matter of this Agreement have been made by either party.
21. WAIVER
This Agreement may not be modified or waived except by a writing signed
by both parties. No waiver by either party of any breach by the other shall be
considered a waiver of any subsequent breach of the Agreement.
22. ARBITRATION
(a) If any dispute arises between Employee and Dendrite that the
parties cannot resolve themselves, including any dispute over the application,
validity, construction, or interpretation of this Agreement, arbitration in
accordance with the then-applicable rules of the American Arbitration
Association shall provide the exclusive remedy for resolving any such dispute,
regardless of its nature; provided, however, that Dendrite may enforce
Employee's obligations under Sections 5 through 13 hereof by an action for
injunctive relief and damages in a court of competent jurisdiction at any time
prior or subsequent to the commencement of an arbitration proceeding as herein
provided.
(b) This Section 22 shall apply to claims arising under state and
federal statutes, local ordinances, and the common law. The arbitrator shall
apply the same substantive law that a court with jurisdiction over the parties
and their dispute would apply under the terms of this Agreement. The
arbitrator's remedial authority shall equal the remedial power that a court with
jurisdiction over the parties and their dispute would have. The arbitrator
shall, upon an appropriate motion, dismiss any claim brought in arbitration if
he/she or she determines that the claim could not properly have been pursued
through court litigation. If the then-applicable rules of the American
Arbitration Association conflict with the procedures of this Section 21, the
latter shall apply.
(c) If the parties cannot agree upon an arbitrator, the parties shall
select a single arbitrator from a list of seven arbitrators provided by the
Newark, New Jersey office of the American Arbitration Association. All seven
listed arbitrators shall be retired judges experienced in employment law and/or
persons actively involved in hearing private cases. If the parties cannot agree
on selecting an arbitrator from that list, then the parties shall alternately
strike names from the list, with the first party to strike being determined by
lot. After each party has used three strikes, the remaining name on the list
shall be the arbitrator.
(d) Each party may be represented by counsel or by another
representative of the party's choice, and each party shall pay the costs and
fees of its counsel or other representative and its own filing or administrative
fees. The non-prevailing party (as determined by the arbitrator) shall bear the
fees and costs of the arbitrator.
(e) The arbitrator shall render an award and opinion in the form
typical of those rendered in labor arbitrations, and that award shall be final
and binding and non-appealable. To the extent that any part of this Section 22
is found to be legally unenforceable for any reason, that part shall be modified
or deleted in such a manner as to render this Section 22 (or the remainder of
this Section) legally enforceable and as to ensure that except as provided in
clause (b) of this Section 22, all conflicts between Dendrite and Employee shall
be resolved by neutral, binding arbitration. The remainder of this Section 22
shall not be affected by any such modification or deletion but shall be
construed as severable and independent. If a court finds that the arbitration
procedures of this Section 22 are not absolutely binding, then the parties
intend any arbitration decision to be fully admissible in evidence, given great
weight by any finder of fact, and treated as determinative to the maximum extent
permitted by law.
(f) Unless the parties agree otherwise, any arbitration shall take
place in Newark, New Jersey in such location as agreed to by Dendrite and
Employee. If the parties cannot agree upon a location for the arbitration, the
arbitrator shall determine the location within the State of New Jersey.
(g) Employee has read and understands this Section 22 which discusses
arbitration. Employee understands that by signing this Agreement, Employee
agrees to submit any claims arising out of, relating to, or in connection with
this Agreement, or the interpretation, validity, construction, performance,
breach or termination thereof, or his/her employment or the termination thereof,
to binding arbitration, and that this arbitration provision constitutes a waiver
of Employee's right to a jury trial and relates to the resolution of all
disputes relating to all aspects of the employer/employee relationship,
including but not limited to the following:
(i) Any and all claims for wrongful discharge of employment, breach of
contract, both express and implied; breach of the covenant of good faith and
fair dealing, both express and implied; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; and
defamation;
(ii) Any and all claims for violation of any federal. state or
municipal statute, including, without limitation, Title VII of the Civil Rights
Act of 1964, as amended, the Civil Rights Act of 1991, the Equal Pay Act, the
Employee Retirement Income Security Act, as amended, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990, the Family
and Medical Leave Act of 1993, the Fair Labor Standards Act, the New Jersey
Family Leave Act, the New Jersey Conscientious Employee Protection Act and the
New Jersey Law Against Discrimination; and
(iii) Any and all claims arising out of any other federal, state or
local laws or regulations relating to employment or employment discrimination.
23. SEVERABILITY
In the event that any one or more of the provisions of this Agreement
is held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby. Moreover, if any one or more of the provisions contained in
this Agreement is held to be excessively broad as to duration, scope, activity
or subject, such provisions will be construed by limiting and reducing them so
as to be enforceable to the maximum extent compatible with applicable law.
24. JURISDICTION
The State of New Jersey shall have exclusive jurisdiction to entertain
any legal or equitable action with respect to Sections 5-13 of this Agreement
except that Dendrite may institute any such suit against the Employee in any
jurisdiction in which the Employee may be at the time. In the event suit is
instituted in New Jersey, it is agreed that service of summons or other
appropriate legal process may be effected upon any party by delivering it to the
address in this Agreement specified for that party in Section 17.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
first date written above.
DENDRITE INTERNATIONAL, INC.
XXXXXXX XXXXXXX
By: ______________________________
Xxxxxxx Xxxxxxx
Director of Human Resources
XXXXXXXXX XXXXXXXXXX
___________________________________
Xxxxxxxxx Xxxxxxxxxx
ADDENDUM 1
(See 10a of Employee Agreement)
Competitors
Name
TVF/Cegedim/ISS
NEC
Windsoft
Epsilon
Aurum
IMS
Phoenix
Siebel
