EMPLOYMENT AGREEMENT

 

 

 

THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made this 9th day of May, 2006 (the “Effective Date”) by inVentiv Health, Inc., a Delaware corporation with its principal place of business at 200 Cottontail Lane, Somerset, New Jersey 08873 (the “Company”), and Eran Broshy, residing at 88 Central Park West, Apartment 1W, New York, NY 10023 (the “Executive”).

 

WHEREAS, the parties wish to set forth the terms and conditions upon which the Company will employ 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:

 

ARTICLE I  Position; Title; Duties. Executive shall serve as Chief Executive Officer of the Company and shall perform services consistent with that position and as may be reasonably assigned to him from the Board of Directors of the Company (the “Board”).

 

ARTICLE II  Extent of Services. 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 Company. Executive shall perform his duties in the Company’s New York City and New Jersey metropolitan area offices and will be required to travel as necessary to perform the services required of him under this Agreement. It is understood that Executive will maintain his principal residence in New York City and it is anticipated that his principal place of business will be in the New York - New Jersey metropolitan area.

 

ARTICLE III  Base Salary. The Company shall pay Executive an annual base salary of $560,000, subject to annual review by the Board (it being understood that any determination the Board is required or entitled to make hereunder, other than a determination pursuant to Section 1 or 9(c), may be made by the Compensation Committee of the Board), which may increase, but not decrease the amount thereof (the “Base Salary”). The Base Salary shall be payable in installments in accordance with the Company’s ordinary payroll practices, minus such deductions as may be required by law or reasonably requested by Executive.

 

ARTICLE IV  Bonus. Executive shall be eligible for a bonus in each calendar year, based on Executive’s success in reaching or exceeding performance objectives as determined by the Board (the “Bonus”). Executive’s target Bonus shall be determined by the Board and shall be no less than 50% of Executive’s then current salary. The amount of the Bonus, if any, that is actually awarded shall be determined at the discretion of the Board. All or any portion of the Bonus may be awarded pursuant to a plan satisfying the requirements of Section 162(m) of the Internal Revenue Code of 1986, as amended.

 

ARTICLE V  Term of Employment. Executive is an employee “at will” and subject to the provisions of Sections 9 through 11 hereof, Executive’s employment with the Company may be terminated by the Company or by the Executive at any time for any reason.

 

ARTICLE VI  Stock Options and Restricted Stock.

 

Section 6.01  Stock Options. Executive shall be eligible to receive annual option grants for the purchase of shares of the common stock of the Company (“Options”) at the discretion of the Board; provided that no Option shall have an exercise price less than the fair market value of the common stock of the Company on the date of grant. Under the circumstances provided in Sections 9 through 11, all Options held by Executive shall become fully vested.

 

Section 6.02  Restricted Stock. Executive shall be eligible to receive annual grants of restricted shares of the common stock of the Company at the discretion of the Board. Under the circumstances provided in Sections 9 through 11, all restricted shares held by Executive shall become fully vested.

 

ARTICLE VII  Fringe Benefits. Section 7.01  Benefits. Executive shall be entitled to all benefits generally available to senior executives of the Company.

 

Section 7.02  Vacation. Executive shall be entitled to five (5) weeks of vacation during each year of employment. Executive shall be entitled to sick leave and holidays in accordance with the policy of the Company applicable to its senior executives.

 

Section 7.03  Car Allowance. Executive shall be entitled to monthly car allowance $833.00, paid as taxable wages. The allowance will end effective with Executive’s termination.

 

(d) Life Insurance. The Company shall maintain for the benefit of Executive during the term of his employment a minimum of $2.5 million in term life insurance.

 

ARTICLE VIII  Reimbursement of Business Expenses. The Company shall reimburse Executive in accordance with Company’s policies for all reasonable out-of-pocket costs incurred or paid by Executive in connection with or related to, the performance of his duties, responsibilities or services under this Agreement, upon presentation by Executive of documentation, expense statements, vouchers, and/or such other supporting information as the Company may reasonably request.

 

ARTICLE IX  Termination of Employment Prior to a Change in Control.

 

Section 9.01  Accrued Amounts. In the event of the termination of Executive’s employment for any reason, Executive shall be entitled to (A) unpaid Base Salary through the date of termination; (B) any earned but unpaid Bonus for the prior fiscal year of the Company; (C) any benefits due to Executive under any employee benefit plan of the Company and any payments due to Executive under the terms of any Company program, arrangement or agreement, excluding any severance program or policy and (D) any expenses owed to Executive ((A), (B), (C) and (D) collectively, the “Accrued Amounts”). Except as provided in Section 9(b), Executive shall have no further right or entitlement under this Agreement upon a termination of Executive’s employment within the scope of this Section 9.

 

Section 9.02  Termination Without Cause; For Good Reason. The Company may terminate Executive’s employment without Cause (other than by reason of Disability) and Executive may terminate his employment for Good Reason, in each case upon thirty (30) days prior written notice (which, in the case of a termination of employment by the Executive for Good Reason, shall be given within ninety (90) days of the event or circumstance constituting Good Reason). In the event that the Company terminates Executive’s employment without Cause (other than by reason of Disability) or Executive terminates his employment for Good Reason, in either case prior to a Change in Control, Executive shall be entitled to the following in lieu of any payments or benefits under any severance program or policy of the Company:

 

(i) the Accrued Amounts;

(ii) a lump sum cash severance payment, payable, subject to Section 20, within 10 business days of termination, equal to two times the sum of (A) Executive’s highest Base Salary as of the date of termination and (B) the average annual Bonus earned by Executive with respect to the three fiscal years preceding the date of termination;

(iii) continued coverage for a period of twelve months commencing on the date of termination (A) for Executive (and his eligible dependents, if any) under the Company’s health plans on the same basis as such coverage is made available to senior executives of the Company (including, without limitation, co-pays, deductibles and other required payments and limitations) and (B) under any Company life insurance plan in which Executive was participating immediately prior to the date of termination; and

(iv) full vesting of all Options, Stock Appreciation Rights and Restricted Shares previously granted to Executive, which Options and Stock Appreciation Rights shall remain exercisable for the period determined in accordance with Section 20.

If and to the extent the Company is not permitted under the terms of any applicable plan or policy or applicable law to provide the benefits described in clause (iii) above or Section 10(a)(iii) or 11(b)(iii) below, or if the provisions of such benefits would cause any applicable plan to be deemed to be discriminating in favor of highly compensated employees under the Employee Retirement Income Security Act of 1974, as amended, the Company shall either (x) provide equivalent benefits on an individual basis at no additional after-tax cost to the Executive or (y) pay to the Executive an amount sufficient to permit the Executive to purchase equivalent benefits at no additional after-tax cost to the Executive.

 

Section 9.03  Definition of “Cause”. For purposes of this Agreement, the term “Cause” shall mean (i) Executive’s willful and continuing failure (except where due to physical or mental incapacity) to substantially perform his duties hereunder or refusal or failure to follow the lawful directives of the Board, in either case which is not remedied within 15 days  after receipt of written notice from the Company specifying such failure; (ii) Executive’s willful malfeasance or gross neglect in the performance of his duties hereunder resulting in material harm to the Company; (iii) Executive’s conviction of, or plea of guilty or nolo contendere to, a felony or a misdemeanor involving moral turpitude; (iv) the commission by Executive of an act of fraud or embezzlement against the Company or any affiliate; or (v) Executive’s willful material breach of any material provision of this Agreement (as determined in good faith by the Board) which is not remedied within 15 days after receipt of written notice from the Company specifying such breach, provided that the Executive shall be given the opportunity to appear before the Board prior to the time such termination would otherwise become effective. For purposes of the preceding sentence, no act or failure to act by Executive shall be considered “willful” unless done or omitted to be done by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Company.

 

Section 9.04  Definition of “Good Reason”. For purposes of this Agreement, the term “Good Reason” shall mean the occurrence, without Executive’s express written consent, of: (i) any adverse change in Executive’s title agreed to or effected by the Board, (ii) any material diminution in Executive’s employment duties, responsibilities or authority, or the assignment to Executive of duties that are materially inconsistent with his position, that is not cured within 15 days after written notice thereof is received from Executive; (iii) any reduction in Base Salary or reduction of the target bonus below 50% of the Base Salary; (iv) a relocation of Executive’s principal place of employment to a location inconsistent with Section 2 hereof that would unreasonably increase Executive’s commute; (v) during Executive’s employment with the Company, any failure of Executive to be nominated for election as a director of the Company or the removal of Executive as a director of the Company by the Board other than for cause; (vi) any willful material breach by the Company of any material provision of this Agreement that is not cured within 15 days after written notice thereof is received from Executive; or (vii) any termination of employment by Executive during the thirty day period following the one year anniversary of a Change in Control.

 

Section 9.05  In order to be eligible to receive any Severance Payment pursuant to Section 9(b) hereof, Executive must sign, prior to receiving such payment, a complete release of all claims against Company (other than claims under this Section 9), in substantially the form attached hereto as Exhibit I and such release must have become effective in accordance with its terms.

 

ARTICLE X  Disability; Death. 

 

Section 10.01  Termination Upon Disability. The Company may terminate Executive’s employment by reason of Disability upon thirty (30) days prior written notice. If the Executive is terminated for Disability, the Executive shall be entitled to the following in lieu of any payments or benefits under any severance program or policy of the Company (but not in lieu of any disability benefits to which Executive is entitled under any disability program or policy of the Company):

 

(i) the Accrued Amounts;

(ii) a lump sum cash severance payment, payable, subject to Section 20, within 10 business days of termination, equal to two times the sum of (A) Executive’s highest Base Salary as of the date of termination and (B) the average annual Bonus earned by Executive with respect to the three fiscal years preceding the date of termination, reduced by any amount previously paid to the Executive pursuant to Section 11(a);

(iii) continued coverage for a period of twelve months commencing on the date of termination (A) for Executive (and his eligible dependents, if any) under the Company’s health plans on the same basis as such coverage is made available to senior executives of the Company (including, without limitation, co-pays, deductibles and other required payments and limitations) and (B) under any Company life insurance plan in which Executive was participating immediately prior to the date of termination; and

(iv) full vesting of all Options, Stock Appreciation Rights and Restricted Shares previously granted to Executive, which Options and Stock Appreciation Rights shall remain exercisable for the period determined in accordance with Section 20.

(b) Definition of Disability. For purposes hereof, "Disability" means Executive's inability due to physical or mental incapacity to perform the duties and services of his position for a period of 120 days. At the Company's option, such physical or mental incapacity may be determined by a physician selected by the Company and reasonably acceptable to Executive or presumed by the Company on the basis of Executive's failure to perform the duties and services of his position for a period of 120 days.

(c) Release. In order to be eligible to receive any payment pursuant to Section 10(a) hereof, Executive must sign, prior to receiving such payment, a complete release of all claims against Company (other than claims under this Section 10), in substantially the form attached hereto as Exhibit I and such release must have become effective in accordance with its terms.

(d) Death. If Executive dies during the term of his employment with the Company, (i) the Executive's estate shall be entitled to the Accrued Amounts and any death benefits to which Executive is entitled under any program or policy of the Company providing such benefits, and the Company shall have no other liability to Executive's estate in respect of any additional compensatory or severance amount and (ii) all Options, Stock Appreciation Rights and Restricted Shares previously granted to Executive shall immediately vest in full and shall remain exercisable for the period determined in accordance with Section 20.

 

ARTICLE XI  Change in Control. 

 

Section 11.01  Payment Upon Change in Control. In the event of a Change in Control while Executive is employed by the Company, Executive shall be entitled to the following:

(i) a lump sum cash payment, payable, subject to Section 20, within 10 business days of the Change in Control, equal to two times the sum of (A) Executive’s highest Base Salary as of the date of the Change in Control and (B) the average annual Bonus earned by Executive with respect to the three fiscal years preceding the date of the Change in Control;

(ii) full vesting of all Options, Stock Appreciation Rights and Restricted Shares previously granted to Executive, which Options and Stock Appreciation Rights shall remain exercisable for the period determined in accordance with Section 20; and

 

(iii) any Gross-Up Payment due in accordance with Section 11(c) hereof.

 

Section 11.02  Termination Without Cause; For Good Reason. In the event that the Company terminates Executive’s employment other than for Cause or Disability or Executive terminates his employment for Good Reason within 13 months following a Change in Control, Executive shall be entitled to the following in lieu of any payments or benefits under any severance program or policy of the Company:

 

(i) the Accrued Amounts;

(ii) a lump sum cash severance payment, payable, subject to Section 20, within 10 business days of termination, equal to the sum of (A) Executive’s highest Base Salary as of the date of termination and (B) the average annual Bonus earned by Executive with respect to the three fiscal years preceding the date of termination;

(iii) continued coverage for a period of thirty-six months commencing on the date of termination (A) for Executive (and his eligible dependents, if any) under the Company’s health plans on the same basis as such coverage is made available to senior executives of the Company (including, without limitation, co-pays, deductibles and other required payments and limitations) and (B) under any Company life insurance plan in which Executive was participating immediately prior to the date of termination; and

 

(iv) any Gross-Up Payment due in accordance with Section 11(c) hereof.

 

Section 11.03  Gross-Up Payment. (i)Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control to or for the benefit of Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5(c)) (the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to Executive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income.

 

(ii) Subject to the provisions of Section 11(c)(i), all determinations required to be made under this Section 11(c), including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company and the Executive shall jointly appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 11(c) with respect to any Payments shall be made no later than thirty (30) days following such Payment. The Determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax.

 

Section 11.04  Definition of "Change in Control". For purposes of this Agreement, “Change in Control” means

 

(i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of either (A) the then-outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 10(d)(1), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company or (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Affiliated Company;

(ii) Individuals who, as of the Effective Date, constituted the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(iii) Consummation of a reorganization, merger, consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, as a result of such transaction, owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be and (B) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or

(iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.

(e) Release. In order to be eligible to receive any payment pursuant to Section 11(b) or, with respect to Section 11(b), Section 11(c) hereof, Executive must sign, prior to receiving such payment, a complete release of all claims against Company (other than claims under this Section 11), in substantially the form attached hereto as Exhibit I and such release must have become effective in accordance with its terms.

 

ARTICLE XII  Non-Solicitation and Non-Competition. Section 12.01  Except as provided in paragraph (f) below, Executive agrees that while Executive is employed pursuant to this Agreement and for a period of twelve (12) months following termination of Executive’s employment by the Company for any reason (the “Non-Competition Period”), whether by action of Executive or the Company, Executive will not, except as otherwise provided herein, engage or participate, directly or indirectly as principal, agent, executive, employer, consultant, stockholder, partner or in any other individual capacity whatsoever, in the conduct or management of, or own any stock or any other equity investment in or debt of, any business which is competitive with any business conducted by the Company.

 

Section 12.02  For the purpose of this Agreement, a business shall be considered to be competitive with the business of the Company if such business is engaged in providing outsourced commercialization services to the pharmaceutical industry or any other business in which the Company is engaged at the time of termination of Executive’s employment; provided that a pharmaceutical company shall not be deemed to be competitive if the services Executive renders to such a company do not involve providing outsourced commercialization services or any other business in which the Company is engaged at the time of termination of Executive’s employment.

 

Section 12.03  During the Non-Competition Period, Executive will not, for his own benefit or for the benefit of any person or entity other than the Company, (i) solicit, or assist any person or entity other than the Company to solicit any officer, director, executive or employee of the Company to leave his/her employment, (ii) hire or cause to be hired for Executive’s benefit any present or former officer, director, executive or employee of the Company, or (iii) engage any present or former officer, director, executive or employee of the Company as a partner, contractor, sub-contractor, employee, consultant or other business associate of Executive.

 

Section 12.04  During the Non-Competition Period, Executive will not (i) solicit, or assist any person or entity other than the Company to solicit, any person or entity that is a client of the Company, or has been a client of the Company during the twelve (12) months prior to the date of termination of Executive’s employment, to purchase outsourced commercialization services or any other products or services the Company provides to a client, or (ii) interfere with any of Company’s business relationships.

 

Section 12.05  Executive acknowledges that (i) the markets served by the Company are national 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 Company.

 

Section 12.06  Nothing in this Agreement shall he deemed to prohibit Executive from owning equity or debt investments in any corporation, partnership or other entity which is competitive with the Company, provided that such investments (i) are passive investments and constitute one percent (1%) or less of the outstanding equity securities of such an entity the equity securities of which are traded on a national securities exchange or other public market and (ii) are approved by the Company.

 

Section 12.07  The parties to this Agreement mutually agree that, in recognition of Company’s dependence on Executive’s experience to carry out its business plan and Executive’s senior and key position in the Company, the restrictions detailed in this Section 12 are necessary and appropriate to give effect to the intended relationships of the parties. Executive agrees that because damages arising from violations of this Section 12 are extremely difficult to quantify with certainty, injunctive relief will be necessary to effect the intent of such Section. Accordingly, Executive hereby consents to the imposition of a preliminary or permanent injunction as a remedy to this breach of this Section 12.

 

Section 12.08  It is the desire and intent of the parties hereto that the restrictions set forth in this Section 12 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 limit 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 12.

 

Section 12.09  For purposes of Sections 12 and 13 of this Agreement, the “Company” shall be deemed to refer to the Company and each of its subsidiaries.

 

ARTICLE XIII  Confidential Information

 

. Section 13.01  Executive shall not (for his own benefit or the benefit of any person or entity other than the Company) use or disclose any of the Company’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, 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 Executive by a third party who is entitled to receive and disclose such information.

 

Section 13.02  Upon the effective date of notice of Executive’s or the Company’s election to terminate this Agreement, or at any time upon the request of the Company, Executive (or his heirs or personal representatives) shall deliver to the Company all documents and materials containing either trade secrets and confidential information relating to the Company’s business or privileged information, and all documents, materials and other property belonging to the Company, which in either case are in the possession or under the control of Executive (or his heirs or personal representatives).

 

Section 13.03  All discoveries and works made or conceived by Executive during his 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 sales materials which relate to wall media products, sampling/comparing or services. 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 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 Executive’s employment by the Company, are made, disclosed, reduced to a tangible or written form or description, or are reduced to practice by Executive and which pertain to work performed by Executive while with the Company shall, as between Executive and the Company, be presumed to have been made during Executive’s employment by the Company

 

ARTICLE XIV  Enforcement. Executive agrees that the Company’s remedies at law for any breach or threat of breach by him of the provisions of Sections 12 and 13 hereof will be inadequate, and that the Company shall be entitled to an injunction or injunctions to prevent breaches of the provisions of Sections 12 and 13 hereof and to enforce specifically the terms and provisions thereof, in addition to any other remedy to which the Company may be entitled at law or equity.

 

ARTICLE XV  Indemnification. The Company shall indemnify Executive against any and all losses, liabilities, damages, expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement incurred by Executive in connection with any claim, action, suit or proceeding (whether civil, criminal, administrative or investigative), including any action by or in the right of the Company, by reason of any act or omission to act in connection with the performance of his duties hereunder to the full extent that the Company is permitted to indemnify a director, officer, employee or agent against the foregoing under applicable law. The Company shall at all times cause Executive to be included, in his capacity hereunder, under all liability insurance coverage (or similar insurance coverage) maintained by any of the Company from time to time.

 

ARTICLE XVI  Attorney’s Fees and Costs. In the event Executive institutes any action to enforce his rights under this Agreement and prevails on at least one material claim in such action, the Company shall pay Executive’s reasonable cost and expenses (including legal fees) incurred in connection with such action.

 

ARTICLE XVII  Tax Withholding. Notwithstanding any other provision of this Agreement, the Company may withhold from amounts payable under this Agreement all Federal, state, local and foreign taxes that are required to be withheld by applicable laws or regulations.

 

ARTICLE XVIII  No Waiver. Executive’s or the Company’s failure to insist upon strict compliance with any provision of, or to assert any right under, this Agreement shall not be deemed to be a waiver of such provision or right or of any other provision of or right under this Agreement. Any provision of this Agreement may be waived by either party; provided that any waiver by any person of any provision of this Agreement shall be effective only if in writing and signed by the person against whom enforcement of the waiver is sought and such waiver must specifically refer to this Agreement and to the terms or provisions being modified or waived.

 

ARTICLE XIX  No Mitigation. In no event shall Executive be obligated to seek other employment or take other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and such amounts shall not be subject to offset or otherwise reduced whether or not Executive obtains other employment. The Company’s obligation to make any payment pursuant to, and otherwise to perform its obligations under, this Agreement shall not be affected by any offset, counterclaim or other right that the Company may have against Executive for any reason.

 

ARTICLE XX  Section 409A. The parties acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Internal Revenue Code and the Department of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date (“Section 409A”). The Company shall take, and Executive shall cooperate with the Company in taking, all steps reasonably necessary to have such benefits not be deferred compensation arrangements under Section 409A, including adopting such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that are reasonably necessary or appropriate to preserve the intended tax treatment of the benefits provided by this Agreement, provided that (i) the Company will not be required to take any such steps that impose any material additional costs on the Company and shall not take any such steps that impose any material additional costs on Executive (unless Executive otherwise consents thereto) and (ii) the Company will not be liable for the failure to take any such steps or for the imposition of any tax or penalty pursuant to Section 409A.

 

Without limitation of the preceding paragraph, the parties agree that:

 

(i) With respect to the time period within which Executive may exercise any outstanding stock options or stock appreciation rights, the parties agree to avoid the imposition of Section 409A as follows: with respect to options or stock appreciation rights awarded prior to the date this Agreement has been executed by both parties, Executive shall be entitled to exercise such options and rights through the date that is twelve (12) months from the effective date of Executive’s termination or death, as applicable, but in no event beyond the latest of (a) the 15th day of the third month following the date at which any such stock option or stock appreciation right would have otherwise terminated, (b) December 31 of the year during which any such stock option or stock appreciation right would have otherwise terminated and (c) such period of time that would be permissible under Section 409A and any temporary or final Treasury Regulations and guidance promulgated thereunder, so that the extension of the post-termination exercise period would not be considered a modification of such stock option or stock appreciation right (as determined under Section 409A), provided that in no event will the option or stock appreciation right remain exercisable beyond its original 10-year term, and

 

(ii) With respect to stock options or stock appreciation rights granted to Executive on or following the date this Agreement has been executed by both parties, Executive shall have until the date that is the second anniversary of the date of the Executive's termination or death, as applicable (or any later date specified in the grant agreement) to exercise such options or stock appreciation rights, provided that in no event will any option or stock appreciation right remain exercisable beyond its original term. No subsequent document shall modify this Section 20(ii) unless it specifically references this Section 20(ii) and is executed by both parties. 

 

ARTICLE XXI  Advance Notice of Prospective Employment. 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 Company, he will notify the Company in writing of Executive’s intentions so as to provide the Company with the opportunity to assess whether Executive’s employment or retention may potentially violate any provisions of this Agreement.

 

ARTICLE XXII  Miscellaneous Provisions. 

 

Section 22.01  Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed effective upon personal delivery or upon deposit with (i) the United States Postal Service, by registered or certified mail, postage prepaid, or (ii) a reliable overnight courier service, addressed to the other party at the address set forth above (in the case of the Company, "Attention: Chairman of the Compensation Committee").

 

Section 22.02  Pronouns. Whenever the context may require, any pronouns used 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.

 

Section 22.03  Entire Agreement. This Agreement constitutes the entire 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, the Employment Agreement dated as of June 14, 1999 between Executive and the Company, as heretofore amended. Notwithstanding the foregoing, all prior grant or award agreements relating to stock options and restricted stock will remain in effect except to the extent explicitly modified by this Agreement.

 

Section 22.04  Amendment. This Agreement may be amended or modified only by a written instrument executed by both the Company and Executive.

 

Section 22.05  Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of New York, without regard to its conflict of law principles.

 

Section 22.06  Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns; provided, however, that the obligations of Executive are personal and shall not be assigned or delegated by him.

 

Section 22.07  Waiver. No delays or omissions by the Company or Executive in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company or 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.

 

Section 22.08  Captions. The captions appearing in this Agreement are for the convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.

 

Section 22.09  Severability. In case any provision of this Agreement shall be 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.

 

Section 22.10  Cooperation of the Parties. The Company and Executive agree to make all reasonable efforts to cooperate to insure compliance with this Agreement.

 

Section 22.11  Duration of Terms. The respective rights and obligations of the parties hereunder shall survive any termination of Executive’ employment, the Term or this Agreement to the extent necessary to give effect to such rights and obligations.

 

Section 22.12  Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.

 

 

COMPANY   inVentiv Health, Inc.	EXECUTIVE
By: Per Lofberg  Name: Per G.H. Lofberg Member, Compensation Committee of the Board of Directors	By: /s/ Eran Broshy  Name: Eran Broshy
By: Donald Conklin  Name: Donald Conklin Member, Compensation Committee of the Board of Directors