Exhibit 10.7
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made this 24th day of
January, 2000 (the "Effective Date") by Ventiv Health, Inc., a Delaware
corporation with its principal place of business at 1114 Avenue of the Americas,
New York, NY 10036, (the "Corporation"), and Patrick Fourteau, residing at 160
Prospect Avenue, Guilford, Connecticut 06437 (the "Executive"). The Corporation
shall be referred to herein as the "Employer."
WHEREAS, the parties wish to set forth the terms and conditions upon which
the Employer will employ the Executive;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. Title; Duties
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The Employer hereby employs the Executive, and the Executive hereby
accepts employment with the Employer, upon the terms set forth in this
Agreement. The Executive's employment with the Employer shall commence on
January 24, 2000. The Executive shall serve as President of Ventiv Health United
Kingdom and of Ventiv Health Europe during the term of his employment under this
Agreement. The Executive shall report directly to the Chief Executive Officer or
such other person as may be designated by him, who shall have the authority to
direct, control and supervise the activities of the Executive. The Executive
shall perform such services consistent with his position as may be assigned to
him from time to time by such person.
2. Extent of Services
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The Executive agrees to devote his entire business time and attention to
the performance of his duties under this Agreement. He shall perform his duties
to the best of his ability and shall use his best efforts to further the
interests of the Employer. The Executive shall perform his duties primarily out
of the Employer's United Kingdom office and will be required to travel as
necessary to perform the services required of him under this Agreement. The
Executive represents and warrants to the Employer that he is able to enter into
this Agreement and that his ability to enter into this Agreement and to fully
perform his duties hereunder are not limited to or restricted by any agreements
or understandings between the Executive and any other person. For the purposes
of this Agreement, the term "person" means any natural person, corporation,
partnership, limited liability partnership, limited liability company, or any
other entity of any nature.
3. Base Salary
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The Employer shall pay the Executive a base annualized salary of $270,000
(USD). This salary shall be payable in biweekly installments minus such
deductions as may be required by law or reasonably requested by the Executive.
The Employer will review the Executive's base salary no less often than annually
in conjunction with its regular review of executive salaries.
4. Bonus
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The Executive shall be eligible for a bonus of up to 50% of Base
Compensation in each calendar year, based on the Executive's success in reaching
performance objectives as determined by the Chief Executive Officer or his
designee, the amount of such bonus, if any, to be determined at the discretion
of the Employer.
5. Term of Employment
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The Executive is an employee "at will" and may be terminated by the
Employer at any time with or without cause.
6. Stock Options and Restricted Stock
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(a) Stock Options
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Employer shall grant The Executive 50,000 nonqualified stock options
contingent upon approval by the company Board of Directors. Stock Options will
be priced according to the grant date. The Compensation Committee of the Board
of Directors of the Employer shall grant such options as soon as practicable
after execution of this Agreement and approval of the stock option
recommendation by the Employer's Board of Directors.
The Executive shall be required to enter into a stock option agreement
providing for the grant of options, which shall provide that the options shall
vest at the rate of twenty-five (25%) per year on each anniversary of the date
of grant, such that the stock options shall be fully vested on the fourth
anniversary of such date, and provided that the Executive continues to be
employed by the Employer on each respective anniversary date.
The stock options shall be issued under the Employer's stock option plan
and subject to the terms of the stock option agreement, which are not
inconsistent with this Agreement or the stock option plan.
The Executive acknowledges and agrees that nothing in this Section 6
changes, alters or modifies the "at will" status of his employment with the
Employer.
(b) Restricted Stock
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The Executive shall also be granted by Employer restricted stock valued at
$300,000. (determined in the same manner as determined under 6(a) above) for
shares of common stock of Employer.
The Executive shall enter into a Restricted Stock Agreement which shall
provide that such restricted shares shall vest as follows:
(1) Twenty-five percent (25%) will vest on the first and
each successive anniversary date of the grant date
provided the Executive is employed by Employer on each
such anniversary date.
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The Restricted Stock Agreement shall also provide that the Executive is
precluded from selling, hedging, pledging or otherwise transferring any shares
of restricted stock in any manner for a period of four years from the date of
the grant.
7. Fringe Benefits
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a. The Executive shall be entitled to all U.S. benefits generally
available to executive employees of the Employer.
b. The Executive shall be entitled to three (3) weeks of vacation
during each year of employment. Such vacation shall be taken
at such times as the Executive and the Chief Executive Officer
of the Employer shall agree. The Executive shall be entitled
to sick leave and holidays in accordance with the policy of
the Employer as to its executive employees. The Executive
shall in addition be entitled to such public holidays as are
applicable in any country in which the Executive is performing
his duties on a full-time basis.
c. The Employer will reimburse the Employee the full cost of
COBRA if the Executive elects to retain his former employer's
health plan, until such time that the Executive becomes
eligible for the Employer's health plan.
d. The Executive shall be entitled to receive a company-provided
car for his use of a make and model commensurate with his
position with the Employer and subject to the terms of the car
policy for the time being in force.
e. The Executive shall receive a housing allowance of up to
$2,500 per month.
8. Reimbursement of Business Expenses
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The Employer shall reimburse the Executive in accordance with Employer's
policies for all reasonable out-of-pocket costs incurred or paid by the
Executive in connection with or related to, the performance of his duties,
responsibilities or services under this Agreement, upon presentation by the
Executive of documentation, expense statements, vouchers, and/or such other
supporting information as the Employer may reasonably request.
9. Non-Solicitation and Non-Competition
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a. Except as provided in paragraph (f) below, the Executive
agrees that while the Executive is employed pursuant to this
Agreement and for a period of twelve (12) months following
termination of the Executive's employment by the Employer for
any reason (the "Non-Competition Period"), whether by action
of the Executive or the Employer, the Executive will not,
except as otherwise provided herein, engage or participate,
directly or indirectly as principal, agent, executive,
employer, employee, consultant, stockholder, partner or in any
other individual capacity whatsoever, in the conduct or
management of, or own any stock
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or any other equity investment in or debt of, any business
which is competitive with any business conducted by the
Employer.
b. For the purpose of this Agreement, a business shall be
considered to be competitive with the business of the Employer
if such business is engaged in providing outsourced marketing
services or any other business in which the Employer is
engaged at the time of termination of the Executive's
employment.
c. During the Non-Competition Period, the Executive will not, for
his own benefit or for the benefit of any person or entity
other than the Employer, (i) solicit, or assist any person or
entity other than the Employer to solicit any officer,
director, executive or employee of the Employer to leave
his/her employment, (ii) hire or cause to be hired for the
Executive's benefit any present or former officer, director,
executive or employee of the Employer, or (iii) engage any
present or former officer, director, executive or employee of
the Employer as a partner, contractor, subcontractor,
employee, consultant or other business associate of the
Executive.
d. During the Non-Competition Period, the Executive will not (i)
solicit, or assist any person or entity other than the
Employer to solicit, any person or entity that is a client of
the Employer, or has been a client of the Employer during the
twelve (12) months prior to the date of termination of the
Executive's employment, to purchase outsourced marketing
services or any other products or services the Employer
provides to a client, or (ii) interfere with any of Employers'
business relationships.
e. The Executive acknowledges that (i) the markets served by the
Employer are international in scope and are not dependent on
the geographic location of the executive personnel or the
businesses by which they are employed, and (ii) the above
covenants are manifestly reasonable on their face, and the
parties expressly agree that such restrictions have been
designed to be reasonable and no greater than is required for
the protection of the Employer.
f. The provisions of this section shall apply as though
references to 'any of its subsidiary companies' were
substituted for references to 'the Employer'. The Executive's
obligations pursuant hereto shall, with respect to each
subsidiary company, constitute a separate and distinct
covenant and the invalidity or unenforceability of any such
covenant shall not affect the validity or enforceability of
the covenants in favor of the Employer or any subsidiary
company provided always that this subclause shall only apply
to those subsidiaries and those businesses of such
subsidiaries with which the Executive was involved to a
material extent during the 12 months immediately preceding the
termination of his employment.
g. Nothing in this Agreement shall be deemed to prohibit the
Executive from owning equity or debt investments in any
corporation, partnership or other entity which is competitive
with the Employer, provided that such Investments (i) are
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passive investments and constitute one percent (1%) or less of
the outstanding equity securities of such an entity the
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equity securities of which are traded on a national securities
exchange or other public market and (ii) are approved by the
Employer.
h. The parties to this Agreement mutually agree that, in
recognition of Employer's dependence on the Executive's
experience to carry out its business plan and the Executive's
senior and key position in the Employer, the restrictions
detailed in Section 9 of this Agreement are necessary and
appropriate to give effect to the intended relationships of
the parties. The Executive agrees that because damages arising
from violations of Section 9 of this Agreement are extremely
difficult to quantify with certainty, injunctive relief will
be necessary to effect the intent of such Section.
Accordingly, the Executive hereby consents to the imposition
of a preliminary or permanent injunction as a remedy to his
breach of Section 9 of this Agreement.
It is the desire and intent of the parties hereto that the restrictions
set forth in Section 9 of this Agreement shall be enforced and adhered to in
every particular, and in the event that any provision, clause or phrase shall be
declared by a court of competent jurisdiction to be judicially unenforceable
either in whole or in part -- whether the fault be in duration, geographic
coverage or scope of activities precluded -- the parties agree that they will
mutually petition the court to sever or limit the unenforceable provisions so as
to retain and effectuate to the greatest extent legally permissible the intent
of the parties as expressed in this Section 9 of this Agreement.
10. Confidential Information
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a. The Executive shall not (for his own benefit or the benefit of
any person or entity other than the Employer or any of its
subsidiaries) use or disclose any of the Employer's trade
secrets or other confidential information. The term "trade
secrets or other confidential information" includes, by way of
example, matters of a technical nature, "know-how", computer
programs (including documentation of such programs), research
projects, and matters of a business nature, such as
proprietary information about costs, profits, markets, sales,
lists of customers, and other information of a similar nature
to the extent not available to the public, and plans for
future development. After termination of this Agreement, the
Executive shall not use or disclose trade secrets or other
confidential information unless such information becomes a
part of the public domain other than through a breach of this
Agreement or is disclosed to the Executive by a third party
who is entitled to receive and disclose such information.
b. Upon the effective date of notice of the Executive's or the
Employer's election to terminate this Agreement, or at any
time upon the request of the Employer, the Executive (or his
heirs or personal representatives) shall deliver to the
Employer all documents and materials containing either trade
secrets and confidential information relating to the
Employer's or any of its subsidiaries' business or privileged
information, and all documents, materials and other property
belonging to the Employer or any of its subsidiaries, which in
either case are in the possession or under the control of the
Executive (or his heirs or personal representatives).
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c. All discoveries and works made or conceived by the Executive
during his employment by the Employer, jointly or with others,
that relate to the Employer's activities shall be owned by the
Employer. The terms "discoveries and works" include, by way of
example, inventions, computer programs (including
documentation of such programs), technical improvements,
processes, drawings, and works of authorship, including sales
materials which relate to wall media products,
sampling/comparing or services. The Executive shall promptly
notify and make full disclosure to, and execute and deliver
any documents requested by, the Employer to evidence or better
assure title to such discoveries and works by the Employer,
assist the Employer in obtaining or maintaining for itself at
its own expense United States and foreign patents, copyrights,
trade secret protection and other protection of any and all
such discoveries and works, and promptly execute, whether
during his employment or thereafter, all applications or other
endorsements necessary or appropriate to maintain patents and
other rights for the Employer and to protect its title
thereto. Any discoveries and works which, within six (6)
months after the termination of the Executive's employment by
the Employer, are made, disclosed, reduced to a tangible or
written form or description, or are reduced to practice by the
Executive and which pertain to work performed by the Executive
while with the Employer shall, as between the Executive and
the Employer, be presumed to have been made during the
Executive's employment by the Employer.
11. Severance
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a. The Executive is an employee "at will" and may be terminated
by the Employer at any time with or without cause.
b. Subject to the provisions of paragraph 11(e) below, if the
Executive is terminated by the Employer without cause, then so
long as the Executive remains in compliance with the remaining
obligations contained in this Agreement, including paragraphs
9 and 10 hereof, the Executive shall continue to receive from
the Employer payments of his Base Salary then in effect for a
period of three months, minus such deductions as may be
required by law or reasonably requested by the Executive. In
addition, as additional compensation he shall receive an
amount equivalent to his Base Salary then in effect for a
period of the lesser of three months, or such time the
Executive obtains new employment, minus such deductions as may
be required by law or reasonably requested by the Executive
and less any statutory awards made under any jurisdiction to
the Executive arising out of the termination of his employment
(the "Severance Payment"). In addition, regarding any vested
portion of the Restricted Stock, Employer will allow the
restriction to lapse on 50% of the vested portion.
c. For the purposes of this Agreement, "cause" shall mean any of
the following: (i) gross negligence or willful misconduct in
the performance of the Executive's duties hereunder; (ii)
conviction of any felony, or any misdemeanor involving
dishonesty, fraud or moral turpitude; (iii) subject
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to the provisions of the Americans With Disabilities Act,
physical or mental incapacity for a period of five (5)
consecutive months (such period of incapacity shall be deemed
to be continuously consecutive unless the Executive has
returned to work on a full-time basis for eight (8)
consecutive weeks); (iv) the occurrence of any wrongful and
intentional act or omission by the Executive which has had or
would reasonably be expected to have a material adverse impact
on the business, properties, results of operations, condition
(financial or otherwise) or prospects of the Employer or any
of its subsidiaries; of (v) the failure of the Executive, for
any reason, to devote his full time and efforts in a diligent
manner to the performance of his duties and responsibilities
hereunder.
d. Notwithstanding the above provisions, in the event there is a
"change in control" in Ventiv Health, Inc., then so long as
the Executive remains in compliance with the remaining
obligations contained in this Agreement, including paragraphs
9 and 10 hereof, the Executive shall continue to receive from
the Employer payments of his Base Salary and Bonus then in
effect for a period of twelve months, minus such deductions as
may be required by law or reasonably requested by the
Executive. The provisions of this paragraph 11(d) shall have
no effect if, following such change in control, Employer
agrees to assume the obligations contained in this Agreement
and the Executive remains employed by Employer. For the
purposes of this paragraph 11(d), a "change in control" is
defined as a sale, transfer or other disposition of all or
substantially all of the assets of Ventiv Health, Inc., or the
consummation of a merger or consolidation of Ventiv Health,
Inc. which results in the stockholders of Ventiv Health, Inc.
immediately prior to such transaction owning, in aggregate,
less than a majority of the surviving or resulting entity. In
the event that the Executive receives payments pursuant to
this paragraph 11(d), then the Executive shall not be entitled
to any of the compensation set forth in the preceding
paragraph 11(b).
e. In order to be eligible to receive any Severance Payment
pursuant to this paragraph 11, the Executive must sign, prior
to receiving such Severance Payment, a complete release of all
claims against Employer, in a format to be determined by
Employer.
12. Enforcement
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The Executive agrees that the Employer's remedies at law for any breach or
threat of breach by him of the provisions of Sections 9 and 10 hereof will be
inadequate, and that the Employer shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of Sections 9 and 10 hereof
and to enforce specifically the terms and provisions thereof, in addition to any
other remedy to which the Employer may be entitled at law or equity.
13. Attorney's Fees and Costs
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The Executive agrees that in the event the Employer institutes any action
to enforce and/or prosecute this agreement, the Employer shall be entitled to
recover from the Executive its attorney's fees and costs related to instituting
and maintaining such action.
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14. Advance Notice of Prospective Employment
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The Executive agrees that following the termination of his employment,
prior to accepting employment with, or agreeing to perform services for, any
entity that competes with the Employer, he will notify the Employer in writing
of the Executive's employment or retention that may potentially violate any
provision of this Agreement.
15. Tax Liability
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The Executive agrees that he shall be solely responsible for complying
with the tax laws of any country in which he may perform his duties. The
Executive agrees that he will, at his own expense, engage the services of
a professional Accountant or tax adviser to advise him on his tax
liabilities. The Executive further agrees that he will file US tax
returns.
16. Miscellaneous Provisions
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a. Notices. All notices required or permitted under this
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Agreement shall be in writing and shall be deemed effective
upon personal delivery or upon deposit with the United States
Postal Service, by registered or certified mail, postage
prepaid, addressed to the other party at the address set
forth in the Employer's records.
b. Pronouns. Whenever the context may require, any pronouns used
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in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular forms of nouns and
pronouns shall include the plural, and vice versa.
c. Entire Agreement. This Agreement constitutes the entire
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agreement between the parties and supersedes all prior
agreements and understandings, whether written or oral,
relating to the subject matter of this Agreement, including,
but not limited to, all prior agreements and understandings
relating to stock options or stock ownership in the Employer.
d. Amendment. This Agreement may be amended or modified only by a
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written instrument executed by both the Employer and the
Executive.
e. Governing Law. This Agreement shall be construed, interpreted
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and enforced in accordance with the laws of the State of New
York, without regard to its conflict of law principles and the
parties to this Agreement submit to the exclusive jurisdiction
of the Courts of the State of New York.
f. Successors and Assigns. This Agreement shall be binding upon
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and inure to the benefit of both parties and their respective
successors and assigns; provided, however, that the
obligations of the Executive are personal and shall not be
assigned or delegated by him.
g. Waiver. No delays or omissions by the Employer or the
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Executive in exercising any right under this Agreement shall
operate as a waiver of
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that or any other right. A waiver or consent given by the
Employer or the Executive on any one occasion shall be
effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion.
h. Captions. The captions appearing in this Agreement are for the
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convenience of reference only and in no way define, limit or
affect the scope or substance of any section of this
Agreement.
i. Severability. In case any provision of this Agreement shall be
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held by a court with jurisdiction over the parties to this
Agreement to be invalid, illegal or otherwise unenforceable,
the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Day
and year first above written.
EMPLOYER EXECUTIVE
VENTIV HEALTH, INC.
By: /s/ Eran Broshy 1/24/00 /s/ Patrick Fourteau 1/24/00
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Eran Broshy Date Patrick Fourteau Date
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[LOGO OF VENTIV HEALTH]
Eran Broshy
Chief Executive Officer
PRIVILEGED & CONFIDENTIAL
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October 5, 2001
Mr. Patrick Fourteau
160 Prospect Avenue
Guilford, CT 06437
Re: Amendment to Employment Agreement; Stay Bonus Agreement; and certain
other matters.
Dear Patrick:
This letter confirms our agreement and shall serve to amend (i) the
Employment Agreement between you (you or the "Executive") and Ventiv Health,
Inc. (the "Company" or "Ventiv" or the "Employer") dated January 24, 2000 (the
"Employment Agreement") and (ii) the Stay Bonus Agreement between you and Ventiv
dated April 27, 2001 (the "Stay Bonus Agreement"), in accordance with the terms
and conditions set forth below, as well as to address certain other matters as
set forth below.
Employment Agreement:
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Section 1 ("Title; Duties"). Effective October 5, 2001 (the "Amendment
Date"), the third sentence of Section 1 shall be amended to read in its entirety
as follows:
"The Executive shall serve as President Ventiv Health U.S. Sales and
Europe during the term of his employment wider this Agreement."
Section 3 ("Base Salary") and Section 4 ("Bonus"). In the event that the
Executive's net aggregate personal income tax liability payable to all
applicable taxing authorities with respect to the amounts paid to the Executive
pursuant to Sections 3 and 4 following the Amendment Date shall increase (all
else being equal) as a result of the Executive's added responsibilities in the
United States, Ventiv shall pay to the Executive a gross up of such tax
liability in the year the expense is incurred. Additional gross compensation in
such an amount so as to offset such additional tax liability up to a maximum
value of S50,000 per year.
Section 6(a) ("Stock Options"). In addition to the grant of options
currently described in Section 6(a), Ventiv shall grant to the Executive 30,000
additional stock options, contingent upon and subject to the terms and
conditions contained in such Section. Notwithstanding the
foregoing, with respect to this grant, reference to the "execution [date] of
this Agreement" contained shall be deleted and replaced with "the Amendment
Date."
Section 6(c) ("Accelerated Vesting Upon a Change in Control"). A new
Section 6(c) shall be added to the Employment Agreement and shall read in its
entirety as follows:
"In the event that the Executive's employment is terminated by
Ventiv other than for Cause (as such term is defined in Section
12(c) of this Employment Agreement) within 60 days immediately prior
to a Change in Control (as such term is defined in Section 12(d) of
this Employment Agreement) or following any Change in Control,
should there not be a comparable role offered to the Executive
resulting from the Change of Control, then fifty (50) percent of the
remaining unvested options and restricted stock then held by the
Executive shall vest immediately. The Executive may exercise his
rights with respect to such options and stock in accordance with the
terms and conditions of Ventiv's stock option plan and the
applicable agreement pursuant to which the same were granted."
Stay Bonus Agreement:
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Section 1(a) ("Stay Bonus Payment") shall be amended to read in its
entirety as follows:
"If there is a Change in Control (as defined below) following the
date of this Agreement, and you are employed by Ventiv upon the
Change in Control or your employment is terminated by Ventiv other
than for Cause (as defined herein) within 60 days immediately prior
to the Change in Control, Ventiv will pay you a stay bonus of up to
52 weeks of your then current annual base salary (the "Stay Bonus"),
subject to the terms set forth in paragraphs 2 and 3 below.
Section 2(c) ("Payment of Stay Bonus") shall be amended to read in its entirety
as follows:
"For purposes of this Agreement, "Good Reason" shall mean (i) a
material reduction in your then current base salary, or (ii) failure
of Ventiv or one of its affiliates or assigns to comply with the
provisions of this Agreement; provided, however, that you give the
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Company at least fifteen (15) days advance written notice and the
Company shall have at least thirty (30) days to cure the grounds
which you believe resulted in such reduction or failure."
Section 5 ("Term of Agreement") shall be amended to read in its entirety
as follows:
"This Agreement shall remain in effect following the date hereof
until the first to occur of any one or more of the following
situations: (i) Ventiv terminates your employment for Cause; or (ii)
you voluntarily resign or otherwise cause your employment with
Ventiv to terminate. If there is not a Change in Control prior to
the expiration of such period, this Agreement shall be null and
void, and you shall have no rights to any payments hereunder."
Section 7(e) ("Fringe Benefits - Housing Allowance") shall be deleted in
its entirety.
Miscellaneous:
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Ventiv agrees to reimburse you for reasonable out-of-pocket expenses, not
to exceed $5,000.00, incurred by you to obtain professional tax advisory
services in connection with the matters referenced herein. In that regard,
Ventiv shall promptly reimburse you for such expenses, plus an appropriate tax
gross up, upon your submission of invoices and other proper documentation
detailing same.
If the foregoing is satisfactory, please so indicate by signing and
returning to Ventiv the enclosed copy of this Letter Agreement whereupon this
will constitute the agreement of the parties on with respect to the subject
matter referenced herein.
Very truly yours,
VENTIV HEALTH, INC.
By: /s/ Eran Broshy
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Eran Broshy
Chief Executive Officer
Accepted:
/s/ Patrick Fourteau
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Patrick Fourteau