EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the fifth day of August, 1998 BETWEEN:
PHARMACEUTICAL MARKETING SERVICES INC. (the "Company"), a Delaware Corporation
with offices at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and ▇▇▇
▇▇▇▇▇, an individual residing at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Executive").
WHEREAS, the Company wishes to assure itself of the services of the
Executive in the capacity of Executive Vice President of the Company and Chief
Executive Officer of PMSI ▇▇▇▇▇-▇▇▇▇▇ Inc. ("SLA") and to that end desires to
amend the earlier Employment Agreement dated 8 April, 1996 with Executive; and
WHEREAS, Executive is willing to enter into an Amended and Restated
Employment Agreement upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein set forth, the parties hereto mutually covenant and agree as follows:
1. COMMENCEMENT AND TERM
1.1 The Company shall employ the Executive in the capacity of Executive
Vice President of the Company and Chief Executive Officer of SLA under
and subject to the terms and conditions set forth in this Agreement.
1.2 The employment of the Executive shall be for an indefinite term,
provided that the employment of Executive may be terminated by the
Company and by Executive at any time in accordance with Clause 9
hereinafter.
1.3 This Agreement has been entered into as of the date first above
written but, for purposes of determining Executive's length of
service, the Executive shall be credited with her employment with SLA
or any predecessor-in-interest, which began on May 1982.
2. OBLIGATIONS DURING EMPLOYMENT
2.1 The Executive shall during the continuance of her employment:
2.1.1 Serve the Company to the best of her ability in the capacity
of Executive Vice President of the Company and Chief
Executive Officer of SLA and manage affairs of SLA in
accordance with the policies and procedures established by
the Chief Executive Officer of the Company, to whom the
Executive shall report; and
2.1.2 Faithfully and diligently perform such duties and exercise
such powers consistent with such office, subject to the
direction and supervision of the Chief Executive Officer of
the Company; and
2.1.3 If and so long as the Chief Executive Officer so directs,
perform and exercise the said duties and powers on behalf of
any Associated Company and act as an officer of any Associ-
ated Company; and
2.1.4 Do all in her power to protect, promote, develop, and extend
the business interests and reputation of the Company; and
2.1.5 At all times and in all respects conform to and comply with
the lawful and reasonable directions of the Chief Executive
Officer including all authority levels and procedures from
time to time specified by the Chief Executive Officer; and
2.1.6 Promptly give to the Chief Executive Officer (in writing if
so requested) all such information, explanations and
assistance as he may require in connection with the business
and affairs of the Company and any Associated Company; and
2.1.7 Unless prevented by sickness, injury or other incapacity or
as otherwise agreed by the Chief Executive Officer, devote
the whole of her time, attention and abilities during her
hours of work (which shall be normal business hours and such
additional hours as may be necessary for the proper
performance of her duties) to the performance of her duties
and the business and affairs of the Company and any
Associated Company for which she is required to perform
Duties; and
2.1.8 Work at such offices of the Company as the Company may
direct and travel from time to time as may be required in
connection with the business of the Company and any Associ-
ated Company for which she is required to perform duties.
3. REMUNERATION
3.1 The Company shall pay to the Executive during the continuance of her
employment a salary (which shall accrue from day to day) at the rate
of $265,000 per annum. The salary shall be payable in equal
[bimonthly] installments in arrears or as otherwise determined by the
Company on a company-wide basis.
3.2 As further remuneration, the Executive shall be entitled to an annual
bonus based upon the achievement of performance criteria established
by the Chief Executive Officer. The amount of the bonus for the
achievement of 100% of targeted performance will not be less than
forty percent (40%) of the Executive's then annual base salary.
3.3 The salary and bonus shall be reviewed from time to time and the rates
thereof may be increased by the Company with effect from any such
review date. Review due 1st January 1999.
4. INSURANCE, PENSION SCHEME AND OTHER BENEFITS
4.1 At all times during the term of this Agreement, the Company shall
provide Executive with health insurance (including any medical expense
insurance, permanent health and accident insurance, and travel
insurance), life insurance, the opportunity to participate in a 401(k)
Savings Plan, and such other benefits of the Company enjoyed by or
made available to other senior officers of the Company to the extent
that the Executive qualifies under the eligibility provisions of any
such plan, as presently in effect or as they may be modified from time
to time.
4.2 SLA shall provide Executive with a suitable Company automobile and
will reimburse all expenses associated with the operation of the
vehicle.
5. EXPENSES
5.1 The Company shall during the continuance of her employment reimburse
the Executive in respect of all reasonable and appropriate travel,
accommodations, business entertainment and other similar out-of-pocket
expenses actually incurred or expended by her in the performance of
her duties hereunder.
5.2 Except where specified to the contrary, all expenses shall be
reimbursed on a monthly basis subject to the Executive providing
appropriate evidence (including receipts, invoices, tickets and/or
vouchers as may be appropriate) of the expenditure in respect of which
she claims reimbursement.
6. VACATION
6.1 The Executive shall (in addition to the usual public and bank
holidays) be entitled during the continuance of her employment to four
weeks paid vacation in each calendar year.
6.2 The Executive shall not be permitted to carry forward any accumulated,
unused vacation entitlement in excess of five weeks from one calendar
year to the next.
6.3 Upon the termination of her employment, the Executive's entitlement to
accrued vacation pay (which accrues on a monthly basis) shall be
calculated on a pro rata basis in respect of each completed month of
service in the vacation year in which her employment terminates and
the appropriate amount shall be paid to the Executive; provided that
if the Executive shall have taken more days' vacation than her accrued
entitlement, the Company is hereby authorized to make an appropriate
deduction from the Executive's final salary payment.
7. INTELLECTUAL PROPERTY
7.1 Subject to applicable law, if at any time in the course of her
employment, the Executive makes or discovers or participates in the
making or discovery of any Intellectual Property relating to or
capable of being used in the business of the Company or any Associated
Company, she shall immediately disclose full details of such
Intellectual Property to the Company and, at the request and expense
of the Company, she shall do all things which may be necessary or
desirable for obtaining appropriate forms of protection for the
Intellectual Property in such parts of the world as may be specified
by the Company and for vesting all rights in the same in the Company
or its nominee.
7.2 The Executive hereby irrevocably appoints the Company to be her
attorney and in her name and on her behalf to execute any instrument
or do any thing and generally to use her name for the purpose of
giving to the Company or its nominee the full benefit of the
provisions of this Clause.
7.3 All rights and obligations under this Clause 7 in respect of
Intellectual Property made or discovered by the Executive during her
employment shall continue in full and force and effect after the
termination of her employment and shall be binding upon the
Executive's personal representatives.
8. CONFIDENTIALITY
8.1 The Executive shall not (other than in the proper performance of her
duties or with the prior written consent of the Company or unless
ordered by a court of competent jurisdiction) at any time either
during the continuance of her employment or after its termination
disclose or communicate to any person or use for her own benefit or
the benefit of any person other than the Company or any Associated
Company any confidential information relating to the Company or any
Associated Company which may come to her knowledge in the course of
her employment and the Executive shall during the continuance of her
employment use her best endeavors to prevent the unauthorized
publication or misuse of any confidential information, provided
however that such restrictions shall cease to apply to any
confidential information which may enter the public domain other than
through the fault of the Executive.
8.2 All notes and memoranda of any trade secret or confidential
information concerning the business of the Company and the Associated
Companies or any of its or their suppliers, agents, distributors,
clients, customers or others which shall have been acquired, received
or made by the Executive during the course of her employment shall be
the property of the Company and shall be surrendered by the Executive
to a person duly authorized by the Company at the termination of her
employment or earlier at the request of the Chief Executive Officer of
the Company at any time during the course of her employment.
9. TERMINATION OF EMPLOYMENT
9.1 Termination by the Company Without Cause; Termination by the Executive
for Good Reason. The Company may terminate the employment of the
Executive at any time without Cause by giving the Executive a Notice
of Termination in accordance with Clause 12.2 hereof at least 24
months prior to the effective date of such termination specified in
such notice. The executive may terminate her employment by the Company
at any time for Good Reason by giving a Notice of Termination to the
Company in accordance with Clause 12.2 hereof, and the effective date
of such termination shall be deter mined in accordance with Clause
9.1.3.
9.1.1 Except as provided in Clause 9.1.2, in the event that the Executive's
employment is terminated by the Company Without Cause:
(a) the Company shall pay to the Executive, within 30 days after
the Notice of Termination is given, a lump-sum cash amount
equal to (i) two times the sum of (A) her then current
annual salary under Clause 3 and (B) 40% of her then current
annual salary under Clause 3 (representing her annual bonus
for the achievement of 100% of performance objectives,
irrespective of whether performance objectives have been
achieved), plus (ii) an additional amount of salary equal to
all of the Executive's accrued unused vacation entitlement
up to a maximum of eight weeks; plus (iii) the cash
equivalent of all emoluments specified hereinabove (except
those the Company shall continue to provide pursuant to
Clause 9.1.1(b) during the period of twenty-four (24) months
following the effective date of such termination; and
provided further that in the event of a termination for Good
Reason pursuant to Clause 14.1.8(b), the annual salary used
for computation under this Clause 9.1.1(a) shall be the one
in effect prior to the reduction referred to in clause
14.1.8(b). Executive shall have the right to request and
receive the aggregate lump sum payment comprising
subclauses (i), (ii), and (iii) hereinabove in installments
designated by Executive paid over the calendar year of the
effective date of termination and the subsequent two
calendar years;
(b) for a period of twenty-four (24) months after the effective
date of such termination, the Company shall provide the
Executive with life, health, disability and other insurance
benefits for the Executive and her dependents under the
benefit plans, at the respective levels of coverage in
effect at the time the Notice of Termination is given, or
the cash equivalents of the foregoing (less any contribution
to such benefits plans made through a payroll deduction
charged to the Executive immediately prior to such effective
date in respect of any such benefits), provided, however,
that nothing contained herein is intended to affect
Executive's eligibility for COBRA coverage upon termination
of her employment with the Company;
(c) the Company shall vest as of the time of such termination
all options granted to the Executive under the Stock Option
Plan and allow the Executive a period ending twenty-four
months after the effective date of the termination of her
employment within which to exercise such options;
(d) if so requested by Executive the Company shall provide
outplacement services to Executive, for a period not to
exceed twelve (12) months following the effective date of
termination, with a nationally-recognized outplacement firm
selected by the Company.
9.1.2 Notwithstanding the other provisions of this Clause 9.1, in the event
that the Company terminates the Executive's employment Without Cause
in anticipation of, or pursuant to a Notice of Termination delivered
to the Executive within two years after a Change in Control:
(a) the Company shall pay to the Executive, within 30 days after
the Notice of Termination is given, a lump-sum cash amount
equal to (i) three times the sum of (A) her then current
annual salary under Clause 3 and (B) 40% of her then current
annual salary under Clause 3 (representing her annual bonus
for the achievement of 100% of performance objectives,
irrespective of whether performance objectives have been
achieved), plus (ii) an additional amount of salary equal to
all of the Executive's accrued unused vacation entitlement
up to a maximum of eight weeks; plus (iii) the cash
equivalent of all emoluments specified hereinabove (except
those the Company shall continue to provide pursuant to
Clause 9.1.2(b) during the period of thirty-six (36) months
following the effective date of such termination; and
provided further that in the event of a termination for Good
Reason pursuant to Clause 14.1.8(b), the annual salary used
for computation under this Clause 9.1.2(a) shall be the
one in effect prior to the reduction referred to in Clause
14.1.8(b). Executive shall have the right to request and
receive the aggregate lump sum payment comprising
subclauses (i), (ii), and (iii) herein above in installments
designated by Executive paid over the calendar year of the
effective date of termination and the subsequent two
calendar years;
(b) for a period of thirty-six (36) months after the effective
date of such termination, the Company shall provide the
Executive with life, health, disability and other insurance
benefits for the Executive and her dependents under the
benefit plans, at the respective levels of coverage in
effect at the time the Notice of Termination is given, or
the cash equivalents of the foregoing (less any contribution
to such benefits plans made through a payroll deduction
charged to the Executive immediately prior to such
effective date in respect of any such benefits); provided,
however, that nothing contained herein is intended to
affect Executive's eligibility for COBRA coverage upon
termination of her employment with the Company;
(c) the Company shall vest as of the time of such Change in
Control all options granted to the Executive under the
Stock Option Plan and allow the Executive a period ending
twenty-four months after the effective date of the
termination of her employment within which to exercise such
options; and;
(d) the Company shall provide outplacement services to
Executive, for a period not to exceed twelve (12) months
following the effective date of termination, with a
nationally-recognized outplacement firm selected by the
Company.
9.1.3 Except as provided in Clause 9.1.2, in the event that the Executive
terminates her employment for Good Reason, she shall have the rights
and receive the benefits to which she would be entitled if the Company
had terminated her employment without Cause by delivering a Notice of
Termination under Section 9.1.1. The effective date of the
Executive's termination of her employment pursuant to this Clause
9.1.3 shall be the date specified in Executive's Notice of
Termination; provided, however, that, under no circumstances shall
the Executive specify an effective date less than one hundred twenty
(120) days after the date of such notice. In such event, the
Executive shall receive the benefits provided in Clause 9.1.1 on the
effective date of termination of her employment.
9.1.4 In the event of a dispute between the Executive and the Company with
respect to any of the Executive's rights under this Agreement, the
Company shall reimburse the Executive for any and all legal fees and
disbursements incurred by her in connection with enforcing such
rights, at the time such fees and disbursements are incurred (but in
no event more frequently than monthly); provided, however, that if the
Executive's claim is found by a court of competent jurisdiction to
have been frivolous, the Executive shall reimburse the Company for all
amounts paid by the Company pursuant to this Clause 9.1.4.
9.2 Termination by the Company for Cause; Termination by the Executive
Without Good Reason. The Company may at any tine terminate the
Executive's employment for Cause by giving the Executive a Notice of
Termination in accordance with Clause 12.2 and, if applicable, after
complying with Clause 14.1.5 hereof. The Executive may at any time
terminate her employment with the Company in accordance with Clause
12.2 hereof at least twelve (12) months prior to the effective date of
such termination specified in such notice. In the event of a
termination by the Company for Cause or by the Executive without Good
Reason (except in the case where the Executive so terminates her
employment within two years after a Change in Control, as provided in
Clause 9.1.2), the Executive shall be entitled to receive any unpaid
amount of her then current salary (including unused vacation
entitlements pursuant to Clause 6.3) through the effective date of
such termination, as well as any other benefits which shall have
vested and become payable to her under the Benefit Plans as of such
effective date.
9.3 Retirement. The employment of the Executive shall terminate
automatically upon her retirement. In the event of the termination of
the Executive's employment pursuant to her retirement, the Executive
shall be entitled to any other benefits which shall have vested and
become payable to her under the Benefit Plans as of the effective date
of such retirement or to which the Executive is otherwise entitled
upon her retirement under any Benefit Plan or other policy or program
of the Company or any Associated Company in accordance with the
respective terms of such Benefit Plan, policy or program.
9.4 Death or Disability
9.4.1 Disability. Subject to the requirements of the Americans with
Disabilities Act of 1990, as amended, the Family and Medical Leave Act
of 1993, as amended, and/or any other legislation applicable to the
Executive's employment by the Company, the Company may terminate
employment of the Executive, by giving her a Notice of Termination not
less than six months prior to the effective date of such termination
specified in such notice, if the Executive shall have been absent from
work due to sickness, injury or other incapacity for more than 183
days in the aggregate during any period of 12 consecutive months or
if, in the opinion of a physician or other appropriate expert selected
by the Company, the Executive is likely to be unable to perform her
duties for more than 183 days in the aggregate during any period of
12 consecutive months; provided, that the Company shall withdraw such
notice if during its pendency the Executive returns to full-time work
and provides the Company with a certificate from a physician or other
appropriate expert reasonably acceptable to the Company stating that
she has fully recovered and that no recurrence of such incapacity may
reasonably be anticipated, and provided further that if the Executive
returns to work after a period of absence which would have entitled
the Company to terminate her employment the Company shall, after she
has completed a period of three consecutive months at work without
further material absence due to such sickness, injury or other
incapacity, be deemed to have waived its rights to terminate her
employment based on such previous period of absence. Circumstances
justifying termination of the Executive's employment by the Company
pursuant to this Clause 9.4.1 are referred to herein as "Disability".
9.4.2 Death. The employment of the Executive by the Company shall terminate
automatically upon her death.
9.4.3 Benefits upon Disability. In the event of termination of employment
due to Disability the Company shall continue to pay Executive's salary
and bonus for achieving 100% of her performance objectives under
Clause 3 and provide the other emoluments and benefits specified
hereinabove for a period of six (6) months from the date of
termination hereunder; and cause the vesting of all of the stock
options granted to Executive under the Stock Option Plan and allow
the Executive a period of eighteen (18) months from the effective date
of termination within which to exercise such options.
9.4.4 Benefits upon Death. In the event of a termination of employment due
to death of the Executive, her legal representatives shall be entitled
to receive any unpaid amount of her then current salary through the
effective date of such termination as well as any other benefits which
shall have vested and become payable to her under the Benefit Plans as
of such effective date or to which the Executive is otherwise entitled
upon her death under any Benefit Plan or other policy or program of
the Company or any associated Company in accordance with the
respective terms of such Benefit Plan, policy or program.
9.5 Upon the termination of her employment the Executive shall be entitled
to accrued vacation pay pursuant to clause 6.3.
9.6 Notwithstanding the terms of Clause 1.2 or any other provision of this
Agreement, during any period between the giving of a Notice of
Termination and the effective date of termination in accordance with
this Clause 9, the Company shall not be under any obligation to
provide the Executive with any work and the Company may at any time
during such notice period without further notice suspend the Executive
and/or exclude her from all or any premises of the Company or any
Associated Company, provided, however, that, throughout such notice
period, the Company shall not make or give effect to any change in the
terms and conditions of the Executive's employment as in effect
immediately prior to the Reference Time (as defined below) that would
constitute Good Reason under any of paragraphs (b) through (g) of
Clause 14.1.8 (regardless of whether her employment is terminated for
Good Reason), and the Executive's salary and other contractual
benefits shall continue to be paid or provided by the Company in the
manner in effect at the Reference Time. "Reference Time" means the
time immediately prior to (i) in the case of a termination for Good
Reason, the occurrence that constitutes such Good Reason, or (ii) in
all other cases, the giving of the Notice of Termination. At any time
during such notice period the Executive shall at the request of the
Company immediately resign from office as a Director of the Company
and any Associated Company and from other office held by her in the
Company or any Associated Company (but without claim to compensation
other than as provided under this Agreement) and in the event of her
failure to do so the Company is hereby irrevocably authorized to
appoint some person in her name and on her behalf to sign and deliver
such resignations to the Company.
9.7 The Executive shall have no obligation to take any action to mitigate
or offset any amounts payable by the Company pursuant to this Clause
9, by seeking other employment or otherwise, nor shall the amount of
any payment provided for in this Agreement be reduced by any
compensation earned by the Executive as the result of employment by
another employer after the date of termination of the Executive's
employment or otherwise.
9.8 The termination of the Executive's employment for any reason
whatsoever shall not operate to terminate this Agreement as an
entirety or to adversely affect the respective continuing rights and
obligations of the parties under the relevant clauses of this
Agreement, all of which shall survive the effective date of such
termination of employment in accordance with their respective terms.
9.9 The Executive acknowledges that the Company may have in effect from
time to time a written severance plan or policy, which plan or policy
is or may be subject to change at the discretion of the Company. The
Executive shall not be entitled to any notice, payment in lieu of
notice or other severance payments under such plan or policy, but if
the notice period (or payment) to which the Executive would have been
entitled under such plan or policy as it may then exist is greater
than the notice period (or payment in lieu of such notice) to which
the Executive would be entitled under this Agreement, then the notice
period (and payment in lieu thereof) for termination hereunder shall
be deemed to be such greater amounts.
10. EXECUTIVES COVENANTS
10.1 The Executive acknowledges that during the course of her employment
with the Company she will receive and have access to Confidential
Information of the Company and its Associated Companies (including
without limitation those matters specified in Clause 8.2 of this
Agreement, as well as detailed client/customer lists and information
relating to the operations and business requirements of those
clients/customers) and accordingly she is willing to enter into the
covenants described in Clauses 10.2 and 10.3 in order to provide
the Company and its Associated Companies with what she considers to be
reasonable protection for those interests.
10.2 The Executive hereby covenants with the Company that during the term
of her employment she will not either directly or indirectly engage or
participate in any activity competitive with or adverse to the
business or interests of the Company or any of its Associated
Companies.
10.3 The Executive hereby covenants with the Company that she will not for
the period of 24 months after the Executive's last active day of
employment without prior written consent of the Chief Executive
Officer, directly or indirectly:
10.3.1 carry on or set up or be employed or engaged by or otherwise assist in
or be interested in any capacity (including without limitation as a
shareholder) in any line of business in competition with any line of
business which is part of the Business of the PMSI Group with which
the Executive has had involvement and which the Company or any
Associated Company is carrying on during the 12 months preceding the
Executive's last active day of employment; or
10.3.2 carry on or set up or be employed or engaged by or otherwise assist in
or be interested in any capacity (including without limitation as a
shareholder) a business which competes or will compete with any
business of the Company or any Associated Company which is planned or
contemplated at the date of the Executive's last active day of
employment in any country in which the business is planned or
contemplated to operate and which plans the Executive has been
involved with to a material extent; or
10.3.3 in connection with the carrying on of any businesses which is in
competition with the Business of the Group canvass, solicit or
approach or cause to be canvassed or solicited or approached for
orders in respect of any services provided and/or any goods sold by
the Company or any Associated Company any person, firm or company who
or which at the date of the Executive's last active day of employment
or at any time during the period of 12 months prior to that date is a
supplier, customer or client of the Company or any Associated Company
and with whom or which the Executive shall have had dealings during
the course of her employment; or
10.3.4 in connection with the carrying on of any business in competition with
the Business of the Group do business with any person, firm or company
who or which has at any time during the period of 12 months
immediately preceding the date of the Executive's last active date of
employment done business with the Company or any Associated Company,
customer or client or distributor or consultant and with whom or which
the Executive shall have had dealings during the course of her
employment; or
10.3.5 solicit, entice away or hire or endeavor to solicit or entice away
from the Company or any Associated Company any person who at the date
of the Executive's last active day of employment or at any time during
the period of six months prior to that date is employed or engaged by
the Company or any Associated Company as a head of any business unit,
the direct report of such business unit head, or any other key
technical, marketing or sales position and with whom the Executive
shall have had contact during the course of her employment (whether or
not such a person would commit a breach of his or her contract of
employment by so doing).
10.4 The Executive hereby agrees that she will at the cost of the Company
enter into a direct agreement or undertaking with any Associated
Company whereby she will accept restrictions and provisions
corresponding to the restrictions and provisions in Clause 10.3 above
(or such of them as may be appropriate in the circumstances) in
relation to such activities and such country or countries as such
Associated Company may reasonably require for the protection of its
legitimate business interests.
10.5 Notwithstanding the generality of the covenants contained in Clause
10.3, those covenants shall apply only with respect to those countries
in which the Company or any Associated Company has transacted any
business during the 12 months prior to the date of Executive's last
active day of employment in which the Executive has been involved,
except that during the 24- month period after the Executive's last
active day of employment the Executive may not be engaged or employed
by or render any services to or for the benefit of IMS Health Inc.,
National Data Corporation, ▇▇▇▇▇▇ Communications, Inc. or Quintiles
Transnational Corporation or any of their direct or indirect
subsidiaries, wherever located, except with the prior consent of the
Chief Executive Officer.
10.6 Nothing contained herein shall prohibit the Executive from holding
directly or through nominees up to two percent of the outstanding
stock of any publicly-held and traded company or shares.
10.7 The covenants contained in Clauses 10.3.1, 10.3.2, 10.3.3, 10.3.4 and
10.3.5 are intended to be separate and severable and enforceable as
such.
10.8 In the event of a breach of Clauses 10.3.1, 10.3.2, 10.3.3, 10.3.4, or
10.3.5, the Executive acknowledges that in addition to any other
remedies available under law to the Company and any Associated
Company, the Company and any Associated Company may be entitled to an
injunction enjoining the Executive or any person or persons acting for
or with the Executive in any capacity whatsoever from violating any of
the terms thereof.
11. ASSIGNMENT
11.1 The Company may assign its rights or delegate its performance, in
whole or in part, to any of its Associated Companies; provided that
any such assignment or delegation shall not affect the Executive's
position with the Company. This Agreement shall be binding upon and
shall inure to the benefit of the Company and any successor of the
Company. In the event of any permitted assignment, the Company shall
guarantee the performance of this Agreement by the Associated Company.
11.2 This Agreement shall be binding upon and shall inure to the benefit of
Executive, her legal representatives and assigns, except that
Executive's obligations to perform services under this Agreement are
personal and are expressly declared to be non-assignable and
non-transferable by her without the consent in writing of the Company.
11.3 In the event of a Change in Control, the Company shall require the
successor to the Company as the Executive's employer (whether such
succession is direct or indirect, by purchase, merger, consolidation
or otherwise, to all or a substantial portion of the business and/or
assets of the Company) to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place.
As used in this Agreement, the term "Company" shall mean the Company
as hereinbefore defined and any successor to all or a substantial
portion of its business and/or assets as aforesaid.
12. NOTICES
12.1 Any notice to be given under this Agreement shall be given in writing
and shall be deemed to be sufficiently served by one party on the
other if it is delivered personally or is sent by facsimile
transmission, overnight delivery service or registered or recorded
delivery prepaid post (air mail if overseas) addressed to either the
Company's registered office for the time being or the Executive's last
known address as the case may be.
12.2 Any purported termination of the Executive's employment by the Company
or by the Executive shall not be effective unless communicated by
written Notice of Termination to the other party hereto in accordance
with Clause 12.1 above and the relevant provisions of Clause 9. A
Notice of Termination shall identify the specific termination
provision of this Agreement relied upon, shall specify the intended
effective date of such termination (which date shall comply with the
notice period requirements of the provision so identified) and shall
set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination under the provision so identified.
13. MISCELLANEOUS
13.1 The Executive hereby warrants that by virtue of entering into this
Agreement she will not be in breach of any express or implied terms of
any court order, contract or of any other obligation legally binding
upon her.
13.2 Any benefits provided by the Company to the Executive or her family
which are not expressly referred to in this Agreement shall be
regarded as ex gratia benefits provided at the entire discretion of
the Company and shall not form part of the Executive's contract of
employment.
13.3 Except as expressly provided in this Clause 13, the Executive shall be
responsible for the payment of all individual taxes on all amounts
paid or benefits provided to her under this Agreement. All
compensation (including without limitation, salary and any severance
payments) paid to the Executive shall be subject to such deductions as
from time to time may be required by law or regulation or by
agreement with, or consent of the Executive.
13.4 Any waiver by either party of any breach of any provision of this
Agreement must be set forth in a writing signed by such party, in
order for it to be effective, and no such waiver shall operate as a
waiver of any subsequent breach of that provision or any breach of any
other provision of this Agreement.
13.5 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same instrument.
13.6 The Company will indemnify the Executive (and her legal
representatives, heirs, estate or other successors) to the fullest
extent permitted (including payment of expenses in advance of final
disposition of any proceeding) by the laws of the jurisdiction of the
incorporation of the Company as in effect at the time of the subject
act or omission, or by the Certificate of Incorporation and by-laws of
the Company as in effect at such time or on the date of this
Agreement, or by the terms of any indemnification agreement between
the Company and the Executive, whichever affords or afforded greatest
protection to the Executive, and the Executive shall be entitled to
the protection of any insurance policies the Company or any Associated
Company may elect to maintain generally for the benefit of its
directors and officers (and to the extent the Company or an Associated
Company maintains such an insurance policy or policies, the Executive
shall be covered by such policy or policies, in accordance with its or
their terms, to the maximum extent of the coverage available for a
person serving or having served in the positions and offices in which
the Executive is serving or has served), against all costs, charges
and expenses whatsoever incurred or sustained by her (or her legal
representatives, heirs, estate or other successors) at the time such
costs, charges and expenses are incurred or sustained, in connection
with any action, suit or proceeding to which she (or her legal
representatives, heirs, estate or other successors) may be made a
party by reason of her being or having been a director, officer or
employee of the Company or any Associated Company, or by reason of her
serving or having served any other enterprise as a director, officer
or employee at the request of the Company or any Associated Company.
14. DEFINITIONS AND INTERPRETATION
14.1 In this Agreement unless the context otherwise requires or as
otherwise defined herein the following expressions have the following
meanings:
14.1.1 "Associated Company"
Any company which is a direct or indirect subsidiary of the Company.
14.1.2 "Benefit Plans"
The 401(k) plan and other pension, retirement, life insurance medical,
health, accident, disability, welfare, savings, deferred compensation
or similar plans of the Company and its Associated Companies.
14.1.3 "the Board of Directors"
The Board of Directors for the time being of the Company including any
duly appointed committee thereof.
14.1.4 "the Business of the Group"
The business of the Company and the Associated Companies as described
in the Schedule hereto and such other business or businesses as the
Company or any Associated Company may enter into from time to time of
which the Executive is aware.
14.1.5 "Cause"
Any of the following:
(a) the Executive's willful and continued failure substantially
to perform her duties hereunder (other than as a result of
sickness, injury or other physical or mental incapacity or
as a result of termination by the Executive for Good
Reason); provided, however, that such failure shall
constitute "Cause" only if (x) the Company delivers a
written demand for substantial performance to the Executive
that specifies the manner in which the Company believes the
Executive has failed substantially to perform her duties
hereunder and (y) the Executive shall not have corrected
such failure within 10 business days after her receipt of
such demand;
(b) willful misconduct by the Executive in the performance of
her duties hereunder that is demonstrably and materially
injurious to the Company or any Associated Company for which
she is required to perform duties hereunder;
(c) the Executive's conviction of (or plea of nolo contendere
to) a felony under the laws of the United States or any
state thereof or a criminal offense under the laws of any
other non-U.S. jurisdiction that would constitute a felony
under the laws of the United States or of the state of
Delaware; or
(d) the Executive's illegal or continuing immoderate use or
abuse of alcoholic beverages or drugs in a manner that
materially impairs the Executive's ability to perform her
duties under this Agreement or materially adversely affects
the Executive's or the Company's reputation with customers
or in the community as a whole; provided, however, that this
clause (d) shall not apply to use of prescription drugs in
the manner prescribed by a physician or other duly licensed
medical or health practitioner authorized to issue
prescriptions for such prescription drugs.
No action, or failure to act, shall be considered "willful" if it is
done by the Executive in good faith and with the reasonable belief
that her action or omission was in the best interest of the Company.
14.1.6 "Change in Control"
The occurrence of any of the following:
(a) any event pursuant to which any "Person" becomes an
"Acquiring Person" (as such terms are defined in that
certain Agreement dated as of January 28, 1998 between the
Company and ▇▇▇▇▇▇ Trust Company of New York as Rights
Agent, as such Agreement initially entered into effect as of
such date);
(b) a merger, consolidation, exchange, combination or other
transaction involving the Company and another entity (or the
securities of the Company and such other entity) as a result
of which the holders of all of the shares of Common Stock of
the Company outstanding prior to such transaction do not
hold, directly or indirectly, shares of the outstanding
voting securities of, or other voting ownership interests
in, the surviving, resulting or successors entity in such
transaction in substantially the same proportions as those
in which they held the outstanding shares of Common Stock of
the Company immediately prior to such transaction;
(c) the sale, transfer, assignment or other disposition by the
Company and/or one of more Associated Companies, in one
transaction or a series of transactions within any period of
18 consecutive calendar months which account for an
aggregate of 50% or more of the assets or 50% or more of the
consolidated revenues of the Company and its subsidiaries,
as determined in accordance with U.S. generally accepted
accounting principles, for the fiscal year most recently
ended prior to the date of such transaction (or, in the case
of a series of transactions as described above, the first
such transaction); provided, however, that no such
transaction shall be taken into account if substantially all
the proceeds thereof (whether in cash or in kind) are used
after such transaction in the ongoing conduct by the Company
and/or its subsidiaries of the business conducted by the
Company and/or its subsidiaries prior to such transaction;
(d) the Company is dissolved; or
14.1.7 "the Chief Executive Officer"
The Chief Executive Officer of the Company.
14.1.8 "Good Reason"
The occurrence of any of the following (other than by reason of a
termination of the Executive for Cause or Disability):
(a) the position or responsibilities of the Executive are
significantly reduced, (including, without limitation, by
reason of the elimination of the position of the Executive
Vice President of the Company and Chief Executive Officer of
SLA or by reason of a material change in the reporting
responsibilities to and of such position, or, following a
Change in Control, by reason of a substantial reduction in
the size of the Company or other substantial change in the
character or scope of the Company's operations), or the
Executive is assigned without her written consent to any
duties inconsistent with her positions, duties,
responsibilities and status with the Company immediately
prior to such assignment;
(b) the salary provided in Clause 3.1 hereof (as the same may be
increased from time to time in accordance with Clause 3.3)
is reduced (except if such reduction occurs prior to a
Change in Control and is part of an across-the-board
reduction applicable to all senior level executives of the
Group);
(c) the annual incentive compensation provided for in Clause 3.2
hereof is reduced or eliminated or, if after a change in
Control, the Executive's participation level is reduced or
the manner of assessing actual performance is changed in a
manner that results in the Executive earning less such
compensation for a given period than she would have for the
same period absent such change;
(d) the Executive's aggregate level of benefits under the
Benefit Plans is reduced, except if such reduction occurs
prior to a Change in Control and is part of an
across-the-board reduction in such benefits applicable to
all senior level executives of the Group;
(e) after a Change in Control, the Company fails to continue to
provide the Executive with benefits and perquisites which
are substantially similar in the aggregate to those to which
the Executive is entitled under the Company's Benefit Plans
in which the Executive was participating immediately prior
to the Change in Control, or fails to provide the Executive
with directors' and officers' insurance, at least at the
level maintained immediately prior to the Change in Control;
(f) the Executive is required to change he regular work location
to a location that is more than 25 miles from the current
address of Executive set out at the beginning of this
Agreement;
(g) the Company fails to pay the Executive any amount otherwise
vested and due hereunder or under any plan or policy of the
Company, or fails to comply with any other provision of or
perform any of its other obligations under this Agreement;
or
(h) the Company fails to obtain from any successor and to
deliver to the Executive such successor's written agreement
to assume and agree to perform the Company's obligations
under this Agreement.
If the Executive delivers to the Company a Notice of Termination in
connection with an event described in Clauses (a) through (h) above,
the Company shall have 10 business days from the date of receipt of
such notice to effect a cure of the event described therein, and upon
cure thereof by the Company to the Executive's reasonable
satisfaction, such event shall no longer constitute "Good Reason" for
purposes of this Agreement.
14.1.9 "Intellectual Property"
Letters patent, trademarks, trade names, service marks, designs,
copyrights, utility models, design rights, applications for
registration of any of the foregoing and the right to apply for them
in any part of the world, inventions, drawings, computer programs and
software, trade secrets and other non-public proprietary information,
know-how and rights of like nature arising or subsisting anywhere in
the world in relation to all of the foregoing whether registered or
unregistered.
14.1.10 "IRS"
The United States Internal Revenue Service, or any successor agency of
the United States Government.
14.1.11 "PMSI Group" or "Group"
The Company and the Associated Companies.
14.1.12 "Stock Option Plan"
The Pharmaceutical Marketing Services Inc. and its Subsidiaries Stock
Option and Restricted Stock Purchase Plan, as the same may be amended
from time to time, or any employee stock option plan that replaces,
supersedes or supplements such plan.
14.2 The headings in this Agreement are for convenience only and shall not
affect its construction or interpretation.
14.3 Any reference in this Agreement to a statutory provision shall be
deemed to include a reference to any statutory amendment, modification
or re-enactment of it or to any legislation that supersedes it.
14.4 This Agreement together with the Company plans, agreements and other
arrangements referred to herein contains the entire understanding
between the parties and supersedes any other prior agreements,
arrangements and understandings (written or oral) between the Company
and the Executive relating to the employment of the Executive with the
Company which such agreements, arrangements and understandings shall
be deemed to have been terminated by mutual consent; provided,
however, that this Agreement shall not terminate any agreement in
effect on the date hereof between the Company and the Executive
granting or otherwise relating to any stock option, and any such
agreement shall be deemed to be modified and amended hereby to the
extent that the terms of such agreement are inconsistent with the
terms hereof. The Executive acknowledges that she has not entered into
this Agreement in reliance on any warranty, representation or
undertaking which is not contained in or specifically incorporated in
this Agreement.
14.5 The various Clauses of this Agreement are severable and if any Clause
or identifiable part thereof is held to be invalid or unenforceable by
any court of competent jurisdiction then such invalidity or
unenforcability shall not affect the validity or enforceability of the
remaining Clauses or identifiable parts thereof in this Agreement, and
the parties hereto agree that the portion so held invalid,
unenforceable or void shall, if possible, be deemed amended or reduced
in scope, or otherwise be stricken from this agreement, to the extent
required for the purposes of the validity and enforcement hereof.
14.6 Unless the context otherwise requires, any reference in this Agreement
to the employment of the Executive or the Executive's last day of
active employment refers to the Executive's employment with the
Company.
14.7 Unless the context otherwise requires, any reference herein to a
Benefit Plan or other plan, agreement, arrangement, policy or program
of the "Company," or to a benefit, payment or contribution provided or
to be provided to the Executive by the "Company" shall be understood
to include any Benefit Plan, plan, agreement, arrangement, policy or
program of any Associated Company, or any benefit, payment or
contribution provided or to be provided to the Executive by any
Associated Company, respectively.
14.8 This Agreement is governed by and shall be construed in accordance
with the laws of the State of Pennsylvania, and the parties to this
Agreement hereby submit to the nonexclusive jurisdiction of the
federal and state courts sitting in Philadelphia, Pennsylvania.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
PHARMACEUTICAL MARKETING SERVICES INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
EXECUTIVE
By: /s/▇▇▇ ▇▇▇▇▇
___________________________
▇▇▇ ▇▇▇▇▇
SCHEDULE
BUSINESS OF THE PMSI GROUP
The Business of the PMSI Group consists of the provision to the
pharmaceutical industry of:
(a) Surveys of and information services from physicians and managed
care professionals;
(b) marketing research audits and surveys evaluating marketing and
promotional activities, expenditure and effectiveness; physicians attitudes,
behaviours and prescribing; and drug production, distribution and dispensing,
and therapy trends;
(c) profiles of physicians, managed care professionals, managed care
organizations, formularies, regulations and legislation and marketing research
on managed healthcare;
(d) related strategic studies and consulting services.