Exhibit 10.9
[LOGO OF VENTIV HEALTH]
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of August 13, 2001 (the "Executive
Date") between Ventiv Health Inc., a Delaware corporation with its principal
place of business at 1114 Avenue of the Americas, New York, New York 10036 (the
"Company"), and John Emery, 24 Brooks Bend Drive, New Hope. PA 18938 (the
"Executive").
WITNESSETH:
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WHEREAS, the Company desires to employ the Executive as its Chief
Financial Officer and the Executive desires to accept such employment, all on
the terms and conditions specified herein; and
WHEREAS, the Executive and the Company desire to set forth in
writing all of their respective duties, rights and obligations with respect to
the Executive's employment by the Company; and
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and obligations hereinafter set forth, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Employment. The Company hereby employs the Executive, and the
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Executive hereby accepts employment by the Company, in the capacity and upon the
terms and conditions hereinafter set forth.
2. Duties. The Executive shall serve as the Company's Chief
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Financial Officer and shall perform such duties, functions and responsibilities
as are associated with and incident to that position and as the Company may,
from time to time, require of him. The Executive shall serve the Company
faithfully, conscientiously and to the best of the Executive's ability and shall
promote the interests and reputation of the Company. Unless prevented by
sickness or disability, the Executive shall devote all of the Executive's time,
attention, knowledge, energy and skills, during normal working hours, and at
such other times as the Executive's duties may require, to the duties of the
Executive's employment The principal place of employment of the Executive shall
be at the Employer's New York, NY office (1114 Avenue of the Americas, New York,
New York 10036) and/or such other location as shall be necessary for the
Executive to discharge the Executive's duties hereunder. The Executive
acknowledges that in the course of employment the Executive may be required,
from time to time, to travel on behalf of the Company.
3. Conversation and Benefits. As full and complete compensation for
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the Executive's execution and delivery of this Agreement and performance of any
services hereunder, the Company shall pay, grant or provide the Executive, and
the Executive agrees to accept, the following compensation and benefits:
John Emery
July 25, 2001
a. Base Salary. The Company shall pay the Executive a base
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salary at an annual rate of $270,000 payable at such times and in accordance
with the Company's customary payroll practices as they may be adopted or
modified from time to time. On an annual basis or at such other times as the
Company may determine, the Company may review the Executive's performance and
determine whether, in its sole discretion, the Company will increase (but not
decrease) the Executive's base salary.
b. Fringe Benefits. The Company shall afford the opportunity
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to participate in any health care, dental, disability insurance, retirement,
savings and any other employee benefits plans, policies or arrangements which
the Company maintains for its employees in accordance with the written terms of
such plans, policies or arrangements. Nothing in this Agreement shall require
the Company or its affiliates to establish, maintain or continue any benefit
plans, policies or arrangements or restrict the right of the Company or any of
its affiliates to amend, modify or terminate any such benefit plan, policy or
arrangement.
c. Stock Option Arrangements. Subject to the approval of the
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Compensation Committee of the Company's Board of Directors, the Company shall
grant to the Executive an option top 200,000 shares of common stock, with an
Exercise Price according to the grant date, and will vest 25% per year, 100%
after four (4) years. Such grant shall be pursuant to the terms and conditions
of the Ventiv Health, Inc. Stock Incentive Plan and the Executive's execution of
a standard Ventiv Nonqualified Stock Option Agreement in the form provided to
the Executive by the Company.
Should the Company undergo a Change of Control, then fifty (50)
percent of the remaining unvested shares shall be considered vested should there
not be a comparable role offered to the Executive resulting from the Change of
Control.
The Executive acknowledges having received a copy of the
Ventiv Health Inc. Stock Incentive Plan and an unexecuted Nonqualified Stock
Option Agreement.
d. Bonus. The Executive shall be eligible for a bonus in each
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calendar year, based on the Executive's success in reaching or exceeding
performance objectives as determined by the Chief Executive Officer or his/her
designee, the amount of such bonus, if any, to be determined in the discretion
of the Company. Notwithstanding the foregoing, if the Executive remains employed
by the Company through the bonus payout date, the Executive shall be entitled to
a target bonus of 40% of the Executive's then current base salary, with the
amount of such bonus, if any, remaining subject to the discretion of the
Company. The employee shall be eligible for a prorated bonus to be paid for the
balance of 2001 if performance objectives are met.
e. Expenses. The Executive shall be entitled to reimbursement
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or payment of reasonable business expenses in accordance with the Company's
policies, as the same may be amended from time to time in the Company's sole
discretion, following the Executive's submission of appropriate receipts, bills
and/or expense reports to the Company in accordance with such policies.
John Emery
July 25, 2001
f. Vacations, Holidays or Temporary Leave: The Executive shall
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be entitled to take 4 weeks of vacation per year, without loss or diminution of
compensation. Such vacation shall be taken at such time or times consistent with
the needs of the Company's business. The Executive shall further be entitled to
the number of paid holidays, and leaves for illness or temporary disability in
accordance with the Company's policies as such policies may be amended from time
to time or terminated in the Company's sole discretion.
g. Travel allowance: During the period of the Executive's
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employment by the Company, the Company shall pay to the Executive as a travel
allowance the gross amount of $450 per month.
4. Non-Competition, Confidentiality, Discoveries and Works:
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a. Non-Competition: During the period of The Executive's
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employment at the Company and for twelve (12) months following the termination,
for any reason, of The Executive's employment, the Executive agrees not to
compete in any manner, either directly or indirectly, whether for compensation
or otherwise, with the Company, or to assist any other person or entity to
compete with the Company either:
(i) by producing, developing or marketing, or assisting
others to produce, develop or market, or
(ii) by accepting employment from or having any other
relationship (including, without limitation, through
owning, managing, operating, controlling or consulting)
with any entity which produces, develops or markets,
a product, process, or service which is competitive with those products,
processes, or services of the Company, whether existing or planned for in the
future, on which the Executive has worked, or concerning which the Executive has
in any manner acquired knowledge of or had access to Confidential Information
(as defined in Section 4(e)(iii) below), during the five (5) years preceding
termination of the Executive's employment, provided, however, that it shall not
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be a violation of this Agreement for The Executive to seek and/or accept
employment directly with a fully integrated pharmaceutical or biotech company
(i.e. one that discovers, develops, manufactures, and promotes drugs) or to have
beneficial ownership of less than 1% of the outstanding amount of any class of
securities listed on a national securities exchange or quoted on an inter-dealer
quotation system.
b. Non-Solicitation: During the period of the Executive's
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employment at the Company and for twelve (12) months following the termination,
for any reason, of the Executive's employment, the Executive agrees that the
Executive will not, either on The Executive's own behalf or on behalf of any
other person or entity (other than for the benefit of the Company), directly or
indirectly, (i) solicit any person or
John Emery
July 25, 2001
entity that is a customer of the Company, or has been a customer of the Company
during the prior twelve (12) months, to purchase any products or services the
Company provides to the customer, or (ii) interfere with any of the Company's
business relationships.
c. No-Hire: During the period of the Executive's employment
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at the Company and for twelve (12) months following the termination, for any
reason, of the Executive's employment, the Executive agrees that the Executive
will not, either on the Executive's own behalf or on behalf of any other person
or entity, directly or indirectly, hire, solicit or encourage to Leave the
employ of or engagement by the Company any person who is then an employee or
contractor of the Company or who was an employee or contractor of the Company
within six (6) months of the date of such hiring, soliciting, or encouragement
to leave the Company.
d. Geographic Scope: The foregoing restrictions shall apply in
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the "Restricted Area" which means
(i) the geographic sales region(s) assigned to the
Executive by the Company and/or serviced by the Executive during the twelve (12)
month period prior to termination of the Executive's employment and the fifty
(50) mile radius around any office of the Company out of which the Executive
worked, provided services to or provided supervision over, and
(ii) any location, storefront, address or place of
business where a Covered Customer is present and available for solicitation,
The Executive will not circumvent the purpose of any restriction contained in
Sections 4(a), 4(b) or 4(c) by engaging in business outside the geographic
region covered by the above definition through remote means like telephone,
correspondence or computerized communication. "Covered Customer" means those
customers, entities and/or persons who did business with the Company and that
the Executive either (x) received Confidential Information about in the course
of his/her duties, (y) had contact with within the last twenty-four (24) month
period of employment by the Company, or (z) supervised contact with within the
last twenty-four (24) month period of employment with the Company.
e. Confidentiality:
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(i) During the period of the Executive's employment at
the Company and for all time following the termination, for any reason, of the
Executive's employment, the Executive shall hold all Confidential Information of
the Company in a fiduciary capacity and agrees not to take any action which
would constitute or facilitate the Unauthorized use or disclosure of
Confidential Information.
The Executive further agrees to take all reasonable measures to prevent the
Unauthorized use and disclosure of Confidential Information and to prevent
Unauthorized persons or entities from obtaining or using Confidential
Information. The terms "Confidential Information" and "Unauthorized" shall have
the meanings set forth in Sections 4(e)(iii) and (iv) of this Agreement
respectively.
John Emery
July 25, 2001
(ii) Promptly upon termination, for any reason, of the
Executive's employment with the Company, the Executive agrees to deliver to the
Company all property and materials within the Executive's possession or control
which belong to the Company or which contain Confidential Information.
(iii) As used in this Agreement, the term "Confidential
Information" shall mean trade secrets, confidential or proprietary information,
and all other information, documents or materials, owned, developed or possessed
by the Company, its parents, subsidiaries or affiliates, their respective
predecessors and successors, whether in tangible or intangible form, that is not
generally known to the public. Confidential Information includes, but is not
limited to, (a) financial information, (b) products, (c) product and service
costs, prices, profits and sales, (d) new business ideas, (e) business
strategies, (f) product and service plans, (g) marketing plans and studies, (h)
forecasts, (i) budgets, (j) projections, (k) computer programs, (1) data bases
and the documentation (and information contained therein), (m) computer access
codes and similar information, (n) software ideas, (o) know-how, technologies,
concepts and designs, (p) research projects and all information connected with
research and development efforts, (q) records, (r) business relationships,
methods and recommendations, (s) existing or prospective client, customer,
vendor and supplier information (including, but not limited to, identities,
needs, transaction histories, volumes, characteristics, agreements, prices,
identities of individual contacts, and spending, preferences or habits), (t)
training manuals and similar materials used by the Company in conducting its
business operations, (u) skills, responsibilities, compensation and personnel
files of Company employees, directors and independent contractors, (v)
competitive analyses, (w) contracts with other parties, and (x) other
confidential or proprietary information that has not been made available to the
general public by the Company's senior management.
(iv) As used in this Agreement, the term "Unauthorized"
shall mean: (a) in contravention of the Company's policies or procedures; (b)
otherwise inconsistent with the Company's measures to protect its interests in
the Confidential Information; (c) in contravention of any lawful instruction or
directive, either written or oral, of a Company employee empowered to issue such
instruction or directive; (d) in contravention of any duty existing under law or
contract; or (e) to the detriment of the Company.
(v) In the event that the Executive is requested by any
governmental or judicial authority to disclose any Confidential Information,
the Executive shall give the Company prompt notice of such request (including,
by giving the Company a copy of such request if it is in writing), such that the
Company may seek a protective order or other appropriate relief, and in any
such proceeding the Executive shall disclose only so much of the Confidential
Information as is required to be disclosed.
f. Discoveries and Works: All discoveries and works made or
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conceived by the Executive during and in the course of his/her employment by the
Company, jointly or with others, that relate to the Company's activities shall
be owned by the Company. The terms "discoveries and works" include, by way of
example, inventions, computer programs (including documentation of such
programs), technical
John Emery
July 25, 2001
improvements, processes, drawings, and works of authorship, including all
educational and sales materials or other publications which relate to Company's
current business. The Executive shall promptly notify and make full disclosure
to, and execute and deliver any documents requested by, the Company to evidence
or better assure title to such discoveries and works by the Company, assist the
Company 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/her employment or thereafter, all applications or other endorsements
necessary or appropriate to maintain patents and other rights for the Company
and to protect its title thereto. Any discoveries and works which, within six
(6) months after the termination of the Executive's employment hereunder, are
made, disclosed, reduce 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, and in his/her capacity as an Executive of, the Company
shall, as between the Executive and the Company presumed to have been made
during the Executive's employment by the Company.
g. Representations, Warranties and Acknowledgements
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(i) The Executive acknowledges that (a) the Company
considers Confidential Information to be commercially and competitively valuable
to the Company and critical to its success; (b) Unauthorized use or disclosure
of Confidential Information would cause irreparable harm to the Company; and (c)
by this Agreement, the Company is taking reasonable steps to protect its
legitimate interests in its Confidential Information.
(ii) The Executive also acknowledges that businesses
that are competitive with the Company include, but are not limited to, any
business involving marketing, consulting to or contract sales, detailing and
marketing support or any other marketing services for pharmaceutical or any
other related health care or biotechnology companies, including competitive
e-health businesses.
The Executive further acknowledges that given the nature of the Company's
business, certain accounts of the Company are national and international in
scope and are not dependent on the geographic location of the executive
personnel or the business by which they are employed.
(iii) The Executive represents and warrants to the
Company that he/she is not a party to any agreement, or non-competition or other
covenant or restriction contained in any agreement, commitment, arrangement or
understanding (whether oral or written), that in any way conflicts with or
limits the Executive's ability to commence or continue to render services to the
Company or that would otherwise limit the Executive's ability to perform all
responsibilities in accordance with the terms and subject to the conditions of
the Executive's employment.
(iv) The Executive acknowledges that certain accounts
are national and international in scope and the location of the Company's
customers is not dependent on the geographic location of the Executive or the
Company.
John Emery
July 25, 2001
(v) The Executive consents and agrees that, during the
Executive's employment with Company and thereafter, the Company may review,
audit, intercept, access and disclose all communications created, received or
sent over the electronic mail and internet access system provided by Company
with or without notice to the Executive and that such review, audit,
interception, access, or disclosure may occur during or after working hours. The
Executive further consents and agrees that the Company may, at any time, access
and review the contents of all computers, computer disks, other data storage
equipment and devices, files, desks, drawers, closets, cabinets and work
stations which are either on Company's premises or which are owned or provided
by Company.
h. Remedies: In the event of breach or threatened breach by
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the Executive of any provision of Section 4 hereof, the Company shall be
entitled to obtain (i) temporary, preliminary and permanent injunctive relief,
in each case without the posting of any bond or other security, (ii) damages and
an equitable accounting of all earnings, profits and other benefits arising from
such breach, or threatened breach, (iii) recovery of all attorney's fees and
costs incurred by the Company in obtaining such relief, (iv) repayment of any
severance benefits paid to the Executive pursuant to this Agreement or any
severance benefit agreement, plan or arrangement of the Company, and (v) any
other legal and equitable relief to which it may be entitled, including any and
all monetary damages which Company may incur as a result of said breach or
threatened breach. Pending arbitration pursuant to Section 7 of the Agreement,
the Company shall be entitled to cease making any payments or providing any
benefits to the Executive and to obtain temporary and preliminary injunctive
relief as described in Section 4(h)(i) from a court of competent jurisdiction.
The Company may pursue any remedy available, including declaratory relief,
concurrently or consecutively, in any order, and the pursuit of one such remedy
at any time will not be deemed an election of remedies or waiver of the right to
pursue any other remedy.
i. Early Resolution Conference: This Agreement is understood
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to be clear and enforceable as written and is executed by both parties on that
basis. However, should the Executive later challenge any provision as unclear,
unenforceable, or inapplicable to activity that the Executive intends to engage
in, the Executive will first notify Company in writing and meet with a Company
representative and a neutral mediator (if the Company elects to retain one at
its expense) to discuss resolution of any disputes between the parties. The
Executive will provide this notification at least fourteen (14) days before the
Executive engages in any activity on behalf of a competing business or engages
in other activity that could foreseeably fall within a questioned restriction.
The failure to comply with this requirement shall waive the Executive's right to
challenge the reasonable scope, clarity, applicability, or enforceability of the
Agreement and its restrictions at a later time. All rights of both parties will
be preserved if the Early Resolution Conference requirement is complied with
even if no agreement is reached in the conference.
John Emery
July 25, 2001
5. Termination of Employment:
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a. The Executive is an employee at-will, and either the
Executive or the Company may terminate the employment relationship at any time
for any reason with or without Cause (as defined below). The date upon which the
termination of the Executive's employment becomes effective pursuant to this
Agreement shall be referred to herein as the "Termination Date." The Termination
Date shall be the date upon which any of the following events shall occur:
(i) the death of the Executive;
(ii) the Disability (as defined below) of the Executive;
(iii) the Company's delivery of a written notice to the
Executive of a termination of the Executive's employment for Cause (as defined
below);
(iv) the Company's delivery of a written notice to the
Executive of a termination of the Executive's employment Without Cause (as
defined below); or
(v) resignation by the Executive.
For purposes of this Agreement, the Executive's employment will not be deemed
to have terminated upon a Change in Control (as defined below).
b. For purposes of this Agreement, the "Disability" of the
Executive shall mean the Executive's inability, because of mental or physical
illness or incapacity, whether total or partial, to perform one or more of the
primary duties of the Executive's employment with or without reasonable
accommodation, and which continues for a length of time that exceeds any period
of leave following which the Executive may have a right to be restored to the
same job or to an equivalent job under federal, stale or local law.
c. For purposes of this Agreement, the term "Cause" shall mean
the Executive's (i) conviction or entry of a plea of guilty or nolo contendere,
with respect to any felony; (ii) commission of any act of willful misconduct,
gross negligence, fraud or dishonesty; (iii) violation of any term of this
Agreement or any written policy of the Company; or (iv) 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. For purposes of this Agreement, "Without Cause" shall mean
for any reason(s) whatsoever (other than the reasons described in Sections
5(a)(i), 5(a)(ii), S(a)(iii), and 5(a)(v) hereof).
e. For purposes of this Agreement, a "Change in Control" of
the Company means a sale, transfer or other disposition of all or substantially
all of the assets of the Company, or the consummation of a merger or
consolidation of the
John Emery
July 25, 2001
Company or a sale or exchange of capital stock of the Company, in either case as
a result of which the stockholders of the Company immediately prior to such
transaction own, in the aggregate, less than a majority of the outstanding
voting capital stock or equity interests of the surviving or resulting entity.
6. Payments Upon Termination of Employment
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a. Death or Disability. If the Executive's employment
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hereunder is terminated due to the Executive's death or Disability pursuant to
Sections 5(a)(i) or (ii) hereof, the Company shall pay or provide to the
Executive, the Executive's designated beneficiary or to the Executive's estate
(i) all base salary pursuant to Section 3(a) hereof and any vacation pay
pursuant to Section 3(d) hereof, in each case which has been earned but unpaid
as of the Termination Date; and (ii) any benefits to which the Executive may be
entitled under any employee benefits plan, policy or arrangement pursuant to
Section 3(b) hereof (including, but not limited to, life insurance and
disability insurance) in which he/she is a participant in accordance with the
written terms of such plan, policy or arrangement up to and including the
Termination Date.
b. Termination for Cause or Resignation. if the Executive's
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employment hereunder is terminated by the Company for Cause pursuant to Section
S(a)(iii) or due to the Executive's resignation pursuant to Section 5(a)(v), the
Company shall pay or provide to the Executive (i) all base salary pursuant to
Section 3(a) hereof and any vacation pay pursuant to Section 3(d) hereof, in
each case which has been earned but unpaid as of the Termination Date; and (ii)
any benefits to which the Executive may be entitled under any employee benefits
plan, policy or arrangement pursuant to Section 3(b) hereof in which he/she is a
participant in accordance with the written terms of such plan, policy or
arrangement up to and including the Termination Date.
c. Termination Without Cause. If the Executives employment
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hereunder is terminated by the Company Without Cause pursuant to Section
5(a)(iv) as from August 13, 2002, then the Company shall award the Executive
such severance benefits, subject to the terms and conditions of The Ventiv
Health, Inc. Severance Benefit Plan. The amount of the Executive's severance pay
benefit shall be the lesser of (a) continuation of base pay for a period of
twenty six (26) weeks from the Termination Date or (b) continuation of base pay
for the period from the Termination Date until the Executive obtains new
employment (whether as an employee, officer, director, partner, proprietor,
investor, associate, executive, consultant, adviser or otherwise). The Executive
shall keep the Company informed of whether or not the Executive has obtained new
employment and upon request shall provide documentation to the Company regarding
the Executive's employment status during the period in which the Executive
receives severance pay benefits from the Company. In order to be eligible to
receive any Severance Payment pursuant to this paragraph 6, the Executive must
sign, prior to receiving such Severance Payment, a valid release and waiver of
all claims against the Company relating to the Executive's employment or the
termination thereof, in a format to be determined by the Company. No payment
shall be made hereunder until at least eight (8) days following the execution
and delivery by the Executive of the valid release and waiver.
John Emery
July 25, 2001
c. No Other Payments. Except as provided in this Section 6,
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the Executive shall not be entitled to receive any other payments or benefits
from the Company due to the termination of the Executive's employment, including
but not limited to, any employee benefits under any of the Company's employee
benefits plans or arrangements (other than at the Executive's expense under the
Consolidated Omnibus Budget Reconciliation Act of 1985 or pursuant to the
written terms of any pension benefit plan in which the Executive is a
participant in which the Company may have in effect from time to time) or any
right to severance benefits.
7. Arbitration.
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a. Any controversy or claim arising out of or relating to this
Agreement, the employment relationship between the Executive and the Company, or
the termination thereof, including the arbitrability of any controversy or
claim, which cannot be resolved amicably after a reasonable attempt to negotiate
such a resolution (including by exhaustion of all grievance or claims procedures
made available by the Company or any employee benefit plan of the Company) shall
be submitted to arbitration under the auspices of the American Arbitration
Association in accordance with its Commercial Dispute Resolution Procedures and
Rules, as such rules may be amended from time to time, and at its office nearest
to the Company's place of business where the Executive works or to which the
Executive reports. The award of the arbitrator shall be final and binding upon
the parties, and judgment may be entered with respect to such award in any court
of competent jurisdiction. Any arbitration under this Agreement shall be
governed by and subject to the confidentiality restrictions set forth in Section
4(e) of this Agreement. The Executive acknowledges reading, prior to the signing
of this agreement, the Commercial Dispute Resolution Procedures and Rules of the
American Arbitration Association, which are available via the internet at
http://www.adr.org. Notwithstanding the foregoing, any controversy or claim
arising out of or relating to any claim by the Company for temporary or
preliminary relief with respect to Section 4 of this Agreement need not be
resolved in arbitration and may be resolved in accordance with Section 4(h) of
this Agreement.
b. The Executive acknowledges that this agreement to submit to
arbitration includes all controversies or claims of any kind (e.g., whether in
contract or in tort, statutory or common law, legal or equitable) now existing
or hereafter arising under any federal, state, local or foreign law (except
claims by the Company for temporary or preliminary injunctive relief pursuant to
Section 4 as set forth above), including, but not limited to, the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1866, the Family and Medical Leave Act, the Employee
Retirement Income Security Act, and the Americans With Disabilities Act, and all
similar state laws, and the Executive hereby waives all rights there under to
have a judicial tribunal resolve such claims.
8. Deductions and Withholding. The Executive agrees that the Company
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shall withhold from any and all compensation payable under this Agreement all
federal, state, local and/or other taxes which the Company determines are
required to be withheld under applicable statutes and/or regulations from time
to time in effect and all amounts
John Emery
July 25, 2001
required to be deducted in respect of the Executive's coverage by and
participation in applicable Executive benefit plans, policies or arrangements.
9. Entire Agreement. This Agreement embodies the entire agreement of
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the parties with respect to the Executive's employment and, except as otherwise
set forth herein, supersedes any other prior oral or written agreements between
the Executive and the Company and its affiliates. This Agreement may not be
changed or terminated orally but only by an agreement in writing signed by the
parties hereto.
10. Waiver. The waiver by the Company of a breach of any provision
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of this Agreement by the Executive shall not operate or be construed as a waiver
of any subsequent breach by the Executive. The waiver by the Executive of a
breach of any provision of this Agreement by the Company shall not operate or be
construed as a waiver of any subsequent breach by the Company.
11. Governing Law. Because Ventiv is incorporated in the state of
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Delaware, this Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, without regard to the choice of law rules of
any state or where the Executive is in fact required to work.
12. Jurisdiction. Any legal suit, action or proceeding against any
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party hereto arising out of or relating to this Agreement that is not subject to
arbitration pursuant to Section 7 of this Agreement shall be instituted in a New
York federal or state court in the Borough of Manhattan and each party hereto
waives any objection which it may now or hereafter have to the laying of venue
of any such suit, action or proceeding and each party hereto irrevocably submits
to the jurisdiction of any such court in any suit, action or proceeding.
13. Assignability. The obligations of the Executive may not be
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delegated and, except as expressly provided in Section 6(a) relating to the
designation of beneficiaries, the Executive may not, without the Company's
written consent thereto, assist, transfer, convey, pledge, encumber, hypothecate
or otherwise dispose of this Agreement or any interest therein. Any such
attempted delegation or disposition shall be null and void and without effect.
The Company and the Executive agree that this Agreement and all of the Company's
rights and obligations hereunder may be assigned or transferred by the Company
to and may be assumed by and become binding upon and may inure to the benefit of
any affiliate of or successor to the Company. The term "successor" shall mean
(with respect to the Company or any of its subsidiaries) any other corporation
or other business entity which, by merger, consolidation, purchase of the
assets, or otherwise, acquires all or a material part of the assets of the
Company. Any assignment by the Company of its rights or obligations hereunder to
any affiliate of or successor to the Company shall not be a termination of
employment for purposes of this Agreement.
14. Severability. If any provision of this Agreement as applied to
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either party or to any circumstances shall be adjudged by a court of competent
jurisdiction or arbitrator to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement or the validity or enforceability
of this Agreement. If any court or
John Emery
July 25, 2001
arbitrator construes any of the provisions of Section 4 hereof, or any part
thereof, to be unreasonable because of the duration of such provision or the
geographic or other scope thereof, such court or arbitrator may reduce the
duration or restrict the geographic or other scope of such provision and enforce
such provision as so reduced or restricted.
15. Notices. All notices to the Executive hereunder shall be in
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writing and shall be delivered personally, sent by overnight courier or sent by
registered or certified mail, return receipt requested, to:
John Emery
24 Brooks Bend Drive
New Hope, PA 18938
All notices to the Company hereunder shall be in writing and shall
be delivered personally, sent by overnight courier or sent by registered or
certified mail, return receipt requested, to:
Ventiv Health, Inc.
c/o Ventiv Health U.S. Sales
200 Cottontail Lane
Somerset, NJ 08873
Attention: Executive Director Human Resources
Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party.
16. Section Headings. The section headings contained in this
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Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
18. Voluntary Agreement. The Executive acknowledges that before
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entering into this Agreement, the Executive has had the opportunity to consult
with any attorney or other advisor of his/her choice, and that this Section 18
of this Agreement constitutes advice from the Company to do so if he/she
chooses. The Executive further acknowledges that he/she has entered into this
Agreement of his/her own free will, and that no promises or representations have
been made to him/her by any person to induce him/her to enter into this
Agreement other than the express terms set forth herein. The Executive further
acknowledges that he/she has read this Agreement and understands all of its
terms, including the waiver of the right to have all disputes with and claims
against the Company decided in a judicial forum set forth in Section 7. The
Executive may take up to twenty-one (21) days from today to consider, sign and
return this Agreement. In addition, the Executive may revoke this Agreement
after signing it, but only by delivering a signed revocation notice to the
Company within seven (7) days of signing
John Emery
July 25, 2001
this Agreement. Such a revocation shall automatically terminate the Executive's
employment due to resignation pursuant to Section 5(a)(v).
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
VENTIV HEALTH, INC.
By: /s/ Eran Broshy
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Eran Broshy
Chief Executive Officer,
Ventiv Health, Inc.
/s/ John R. Emery
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Executive signature
John R. Emery
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Print Executive's Name