EXHIBIT 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of April 8, 2002 (the "Effective Date")
between Ventiv Health, Inc., a Delaware corporation with its principal place of
business at 200 Cottontail Lane (the "Company"), and Terrell Herring residing at
110 Windsong Drive Doylestown, Pennsylvania 18901 (the "Executive").
WITNESSETH:
WHEREAS, the Company desires to employ the Executive as its President,
U.S. Sales of Ventiv Health U.S. Sales 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 offers to employ the Executive, and
the 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 President, U.S.
Sales, 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
Employer's Somerset, NJ area office 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. Compensation and Benefits. As full and complete compensation for
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:
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a. Base Salary. The Company shall pay the Executive a base salary
at an annual rate of $230,000 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. At no time during the pendency of this agreement
shall the Company, without the written consent of the Executive, decrease the
Executive's base pay.
b. Fringe Benefits. The Company shall afford the opportunity 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. Bonus. The Executive shall be eligible for a bonus in each
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 bonus range of 0 - 80% of the Executive's then current base salary, with the
amount of such bonus, if any, remaining subject to the discretion of the
Company.
d. Expenses. The Executive shall be entitled to reimbursement 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.
e. Vacations, Holidays or Temporary Leave: The Executive shall be
entitled to take four (4) weeks of vacation per year, without loss or diminution
of compensation in accordance with Companies policies. 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.
f. Car allowance: During the period of the Executive's employment
by the Company, the Company shall pay to the Executive as a car allowance the
net amount of $ 500 per month.
g. Additional Payments: If there is a Change in Control (as
defined in paragraph 5(e) herein) by April 8, 2003, and the Executive is
employed by the Company upon the Change in Control, and, in the sole judgment
and discretion of the
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Company, the Executive has satisfactorily performed all assigned duties,
including using his best efforts to facilitate a Change in Control, the Company
shall award the Executive up to fifty-two (52) weeks base pay, minus such
deductions as may be required by law or reasonably requested by the Executive.
The payment provided for in this paragraph 3(g) shall be payable in two equal
installments, the first installment of twenty-six (26) weeks shall be paid to
the Executive within thirty (30) days following the Change in Control, and the
second installment of twenty-six (26) weeks shall be paid to the Executive on
the earlier of (i) the six (6) month anniversary of the Change in Control or
(ii) upon the termination Without Cause of the Executive's employment by the
Company; provided however, that no second installment payment shall be made
hereunder in the Executive's employment with the surviving or resulting entity
is terminated for any reason or than by the Company Without Cause. If the
Executive's employment hereunder is terminated Without Cause within the two
months immediately preceding the Change in Control, the Executive shall be
entitled to twenty-six (26) weeks base pay pursuant to this paragraph 3(g),
minus such deductions as may be required by law or reasonably requested by the
Executive, and any payment to which the Executive my be entitled pursuant to
paragraph 6 (c) of this Agreement; provided however, that no payment shall be
made hereunder if the Executive's employment is terminated for any reason other
than Without Cause or if, in the sole judgment and discretion of the Company,
The Executive fails to satisfactorily perform all assigned duties, including
using his best efforts to facilitate a Change in Control. The Executive
acknowledges that the payments provided for in this paragraph 3(g) are in lieu
of (and not in addition to) any other payments or benefits to which the
Executive might otherwise be entitled due to a change in control, including but
not limited to, any stay bonuses, severance payments or termination benefits of
any kind offered to employees in connection with a change in control, whether
pursuant to a plan, arrangement, policy or otherwise; provided however, that
nothing herein shall effect the Executive's right to payment pursuant to
paragraph 6 (c) of this agreement.
4. Non-Competition, Confidentiality, Discoveries and Works:
a. Non-Competition: During the period of The Executive's
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)
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below), during the five (5) years preceding termination of the Executive's
employment, provided, however, that it shall not be a violation of this
Agreement for The Executive to seek and/or accept employment directly with a
fully integrated pharmaceutical or bio-tech 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
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 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 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 twelve (12) months of the date of such hiring, soliciting, or
encouragement to leave the Company.
d. Geographic Scope: The foregoing restrictions shall apply in
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 twelve (12) month period
of employment by the Company, or (z) supervised contact with within the last
twelve (12) month period of employment with the Company.
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e. Confidentiality:
(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.
(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, (l) 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.
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(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
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 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
(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.
(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
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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.
(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 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 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
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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.
5. Termination of Employment:
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) the Executive's delivery of a written notice to the
Company of a termination of the Executive's employment for Good Reason (as
delivered below); or
(v) resignation by the Executive.
For purposes of this Agreement, the Executive's employment will not be deemed to
have automatically 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, state 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) inability to meet the
performance objectives for the respective position.
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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), 5(a)(iii), and 5(a)(v) hereof).
e. For purposes of this Agreement, "Good Reason" shall mean (i) a
significant diminution in the Executive's duties or title; (ii) substantial
reduction is the Executive's compensation or benefits; (iii) the relocation of
the offices of Ventiv Health U.S. Sales more than one hundred (100) miles from
the Company's Somerset, New Jersey office; (iv) a material breach of the
Agreement by the Company not cured within thirty (30) days written notice.
f. 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 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.
a. Death or Disability. If the Executive's employment 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
employment hereunder is terminated by the Company for Cause pursuant to Section
5(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 or for Good Reason. If the
Executive's employment hereunder is terminated by the Company Without Cause
pursuant to Section 5(a)(iv) above or For Good Reason pursuant to Section 5
(a)(v) the Company shall award the Executive severance benefits, subject to the
terms and
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conditions of this Agreement and of The Ventiv Health, Inc. Severance Benefit
Plan, if applicable. A lump sum payment of twenty-six (26) weeks of the
Executive's base pay, minus such deductions as may be required by law or
reasonably requested by the Executive to be paid out immediately. 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.
d. No Other Payments. Except as provided in this Section 6, 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.
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
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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
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 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
the parties with respect to the Executive's employment and 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 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
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
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
Jersey federal or state court in the County of Somerset 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
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, assign, 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
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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
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 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
writing and shall be delivered personally, sent by overnight courier or sent by
registered or certified mail, return receipt requested, to:
Terrell Herring
110 Windsong Drive
Doylestown, Pennsylvania 18901
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.
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 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
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
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
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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 seven (7) 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 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
----------------------------
Eran Broshy
Chief Executive Officer
/s/[ILLEGIBLE]
----------------------------
Executive signature
/s/ Terrell G. Herring
----------------------------
Print Executive's Name
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