Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K DOCUMENT - INVENTIV HEALTH INC | form8k.htm |
| EX-3.2 - AMENDMENT TO AMENDED AND RESTATED BYLAWS - INVENTIV HEALTH INC | bylawamndmnt.htm |
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of
December 14, 2009 (the “Effective Date”) between InVentiv Health, Inc., a
Delaware corporation with its principal place of business at 500 Atrium Drive,
Somerset, NJ 08873, any parent, subsidiary, affiliate, predecessor, or other
related company (collectively the “Company”), and Nat Krishnamurti (the
“Employee”).
W I T N E S S E T H
:
WHEREAS,
the Company desires to continue retaining the services of Employee and the
Employee desires to be employed by the Company, on the terms and subject to the
conditions set forth in this Agreement.
WHEREAS,
the Company and the Employee entered into an Employment Agreement dated April
30, 2008 (the “Employment Agreement”).
WHEREAS,
the Company and the Employee entered into a letter agreement regarding Change in
Control Benefits dated April 30, 2008 (the “Change in Control Letter”), which
Change in Control Letter is no longer in force.
WHEREAS,
this Agreement is intended to amend and restate the Employment Agreement and
supersede the Change in Control Letter.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of Employee by the Company, the
Employment Agreement is hereby amended and restated in its entirety as set forth
herein, the Change in Control Letter is superseded as set forth herein, and the
parties agree as follows:
1. Employment. The
Company hereby offers to employ the Employee, and the Employee hereby accepts
employment by the Company, in the capacity and upon the terms and conditions
hereinafter set forth.
2. Duties. The
Employee shall serve as the Company’s Chief Accounting Officer, and shall
perform such duties, functions and responsibilities as are associated with and
incident to that position and as the Company may, from time to time, require of
Employee. The Employee shall serve the Company faithfully,
conscientiously and to the best of the Employee’s ability and shall promote the
interests and reputation of the Company. Unless prevented by sickness
or disability, the Employee shall devote all of the Employee’s time, attention,
knowledge, energy and skills, during normal working hours, and at such other
times as the Employee’s duties may require, to the duties of the Employee’s
employment. The principal place of employment of the Employee shall
be at Employer’s Somerset area office and/or such other location subject to
Section 6(d)(ii) as shall be necessary for the Employee to discharge the
Employee’s duties hereunder. The Employee acknowledges that in the
course of employment the Employee may be required, from time to time, to travel
on behalf of the Company.
3. Compensation and
Benefits. As full and complete compensation for the
Employee’s
execution and delivery of this Agreement and performance of any services
hereunder, the Company shall pay, grant or provide the Employee, and the
Employee agrees to accept, the following compensation and benefits:
a. Base
Salary. The Company shall pay the Employee a base salary
at an annual rate of $235,000.00, less applicable withholding and payable at
such times and in accordance with the Company’s customary payroll practices as
they may be adopted or modified from time to time. On an annual basis
or at such other times as the Company may determine, the Company may review the
Employee’s performance and determine whether, in its sole discretion, the
Company will increase (but not decrease) the Employee’s base salary. At no time
during the pendency of this Agreement shall the Company, without the written
consent of the Employee, materially decrease the Employee’s base pay. Employee
acknowledges that he shall not be entitled to a merit increase in
2010.
b. Fringe
Benefits. The Company shall afford the Employee the
opportunity to participate in any health care, dental, disability insurance,
retirement, savings and any other employee benefits plans, policies or
arrangements which the Company maintains for its employees in accordance with
the written terms of such plans, policies or arrangements. Nothing in
this Agreement shall require the Company to establish, maintain or continue any
benefit plans, policies or arrangements or restrict the right of the Company to
amend, modify or terminate any such benefit plan, policy or
arrangement. In addition, Employee is covered under the Company's
D&O insurance policy and is indemnified under the Company’s certificate of
incorporation and by-laws for acts and omissions in the performance of his
duties as an officer of the Company to the fullest extent permitted under
Delaware law.
c. Bonus. The
Employee shall be eligible for a bonus in each calendar year, based on the
Employee’s success in reaching or exceeding performance objectives as determined
by the Compensation Committee of the Company’s Board of Directors (the
“Committee”) as recommended by the Chief Executive Officer or his/her designee,
the amount of such bonus, if any, to be determined in the discretion of the
Company, and subject to the Employee remaining employed by the Company through
the bonus payout date. The bonus range shall be between 0 - 100% (50%
target) of the Employee’s then current base salary, with the amount of such
bonus, if any, that is awarded remaining subject to the discretion of the
Company.
d. Stock
Option. It will be recommended to the Committee that the
Employee be granted a stock option with a fair value (based on the Company's
accounting valuation methodology) equal to $125,000 on the date of grant, at an
exercise price per share equal to 100% of the fair market value of the Company’s
common stock on the date of grant (the “Option”). The Option will
vest over a four (4) year period, subject to the Employee’s continued service
with the Company through the relevant vesting dates. The Option will
be subject to the terms, definitions and provisions of the Company’s stock plan
(the “Plan”) and the stock option agreement to be entered into by and between
Employee and the Company (the “Option Agreement”), both of which documents are
incorporated herein by reference.
e. Restricted
Stock. It will be recommended to the Committee that the
Employee be granted a restricted stock award or restricted stock unit award with
a fair value (based on the Company's accounting valuation
methodology) equal to $125,000 on the date of grant (the “Restricted
Stock”). The Restricted Stock will vest over a four (4) year period,
subject to the Employee’s continued service with the Company through the
relevant vesting dates. The Restricted Stock will be subject to the
terms, definitions and provisions of the Plan and the agreement to be entered
into by and between the Employee and the Company (the “Restricted Stock
Agreement”), both of which documents are incorporated herein by
reference.
f. Equity
Awards. The Employee will be eligible to receive awards of
stock options, restricted stock or other equity awards pursuant to any plans or
arrangements the Company may have in effect from time to time. The
Committee will determine in its discretion whether the Employee will be granted
any such equity awards and the terms of any such award in accordance with the
terms of any applicable plan or arrangement that may be in effect from time to
time.
g. Expenses. The
Employee shall be entitled to reimbursement or payment of reasonable business
expenses in accordance with the Company’s policies, as the same may be amended
from time to time in the Company’s sole discretion, following the Employee’s
submission of appropriate receipts, bills and/or expense reports to the Company
in accordance with such policies.
h. Vacations, Holidays or
Temporary Leave: The Employee shall be entitled to take five
(5) weeks of vacation per year, without loss or diminution of compensation in
accordance with the Company’s policy. Such vacation shall be taken at
such time or times consistent with the needs of the Company’s
business. The Employee shall further be entitled to the number of
paid holidays, and leaves for illness or temporary disability in accordance with
the Company’s policies as such policies may be amended from time to time or
terminated in the Company’s sole discretion. The Company reserves the
right to cancel or change the benefit plans and programs it offers to its
employees at any time.
4. Non-Competition, Confidentiality, Discoveries
and Works.
a. Non-Competition. During the
period of the Employee's employment
at the Company and for twelve (12) months following the termination, for any
reason, of the Employee’s employment, the Employee agrees not to compete in any
manner, either directly or indirectly, whether for compensation or otherwise,
with the Company, or to assist any other person or entity to compete with the
Company either:
(i) by
producing, developing or marketing, or assisting others to produce, develop or
market, or
(ii) by
accepting employment from or having any other relationship (including, without
limitation, through owning, managing, operating, controlling or consulting) with
any entity which produces, develops or markets, a product, process, or service
which is competitive with those products, processes, or services of the Company,
whether existing or planned for in the future, on which the Employee has worked,
or concerning which the Employee has in any manner acquired knowledge of or had
access to Confidential Information (as defined in Section 4(e)(iii) below),
during the five (5) years preceding termination of the Employee’s employment,
provided, however, that it
shall not be a violation of this Agreement for the Employee to seek and/or
accept employment directly with a fully integrated pharmaceutical or bio-tech
company (i.e. one that discovers, develops, manufactures, and promotes drugs) or
to have beneficial ownership of less than 1% of the outstanding amount of any
class of securities listed on a national securities exchange or quoted on an
inter-dealer quotation system.
b. Non-Solicitation. During the period of the Employee’s employment at the Company and for twelve (12) months following the termination, for any reason, of the Employee’s employment, the Employee agrees that the Employee will not, either on the Employee’s own behalf or on behalf of any other person or entity (other than for the benefit of the Company), directly or indirectly, (i) solicit any person or entity that is a customer of the Company, or has been a customer of the Company during the prior twelve (12) months, to purchase any products or services the Company provides to the customer, or (ii) interfere with any of the Company’s business relationships.
c. No-Hire.
(i) during the period of the Employee's
employment at the Company
and for twelve (12) months following the termination, for any reason, of the
Employee’s employment, the Employee agrees that the Employee will not, either on
the Employee’s own behalf or on behalf of any other person or entity, directly
or indirectly, hire, solicit or encourage to leave the employ of or engagement
by the Company any person who is then an employee or contractor of the Company
or who was an employee or contractor of the Company within six (6) months of the
date of such hiring, soliciting, or encouragement to leave the
Company.
(ii) during
the period of the Employee’s employment at the Company, and for twelve (12)
months following the termination, for any reason, of the Employee’s employment,
the Employee shall neither seek nor accept employment from any customer,
employee or consultant, which is or has been a customer, employee or consultant
of the Company during the prior twelve (12) months without prior written
approval of the Company.
d. Geographic
Scope. The foregoing restrictions shall apply in the
“Restricted Area” which means:
(i) the
geographic area in which the Company conducts business or has Covered Customers,
as well as those geographic areas that the Company has a bona fide intention to
engage in the future, or
(ii) any
location, storefront, address or place of business where a Covered Customer is
present and available for solicitation.
The
Employee will not circumvent the purpose of any restriction contained in
Sections 4(a), 4(b) or 4(c) by engaging in business outside the Restricted Area
through remote means like telephone, correspondence or computerized
communication. “Covered Customer” means those customers, entities
and/or persons who did business with the Company and that the Employee either
(x) received Confidential Information about in the course of his/her duties, (y)
had contact with within the last twelve (12) month period of employment by the
Company, or (z) supervised contact with within the last twelve (12) month period
of employment with the Company.
e. Confidentiality.
(i) During
the period of the Employee’s employment at the Company and for all time
following the termination, for any reason, of the Employee’s employment, the
Employee shall hold all Confidential Information of the Company in a fiduciary
capacity and agrees not to take any action which would constitute or facilitate
the Unauthorized use or disclosure of Confidential Information. The
Employee further agrees to take all reasonable measures to prevent the
Unauthorized use and disclosure of Confidential Information and to prevent
Unauthorized persons or entities from obtaining or using Confidential
Information. The terms “Confidential Information” and “Unauthorized”
shall have the meanings set forth in Sections 4(e)(iii) and (iv) of this
Agreement respectively.
(ii) Promptly
upon termination, for any reason, of the Employee’s employment with the Company,
the Employee agrees to deliver to the Company all property and materials within
the Employee’s possession or control which belong to the Company or which
contain Confidential Information.
(iii) As used
in this Agreement, the term “Confidential Information” shall mean trade secrets,
confidential or proprietary information, and all other information, documents or
materials, owned, developed or possessed by the Company, its parents,
subsidiaries or affiliates, their respective predecessors and successors,
whether in tangible or intangible form, that is not generally known to the
public. Confidential Information includes, but is not limited to, (a)
financial information, (b) products, (c) product and service costs, prices,
profits and sales, (d) new business ideas, (e) business strategies, (f) product
and service plans, (g) marketing plans and studies, (h) forecasts, (i) budgets,
(j) projections, (k) computer programs, (l) data bases and the documentation
(and information contained therein), (m) computer access codes and similar
information, (n) software ideas, (o) know-how, technologies, concepts and
designs, (p) research projects and all information connected with research and
development efforts, (q) records, (r) business relationships, methods and
recommendations, (s) existing or prospective client, customer, vendor and
supplier information (including, but not limited to, identities, needs,
transaction histories, volumes, characteristics, agreements, prices, identities
of individual contacts, and spending, preferences or habits), (t) training
manuals and similar materials used by the Company in conducting its business
operations, (u) skills, responsibilities, compensation and personnel files of
Company employees, directors and independent contractors, (v) competitive
analyses, (w) contracts with other parties, and (x) other confidential or
proprietary information that has not been made available to the general public
by the Company’s senior management.
(iv) As used
in this Agreement, the term “Unauthorized” shall mean: (a) in contravention of
the Company’s policies or procedures; (b) otherwise inconsistent with the
Company’s measures to protect its interests in the Confidential Information; (c)
in contravention of any lawful instruction or directive, either written or oral,
of a Company employee empowered to issue such instruction or directive; (d) in
contravention of any duty existing under law or contract; or (e) to the
detriment of the Company.
(v) In the
event that the Employee is requested by any governmental or judicial authority
to disclose any Confidential Information, the Employee shall give the Company
prompt notice of such request (including, by giving the Company a copy of such
request if it is in writing), such that the Company may seek a protective order
or other appropriate relief, and in any such proceeding the Employee shall
disclose only so much of the Confidential Information as is required to be
disclosed.
f. Discoveries and
Works. All discoveries and works made or conceived
by the
Employee during and in the course of Employee’s employment by the Company,
jointly or with others, that relate to the Company’s activities shall be owned
by the Company. The terms “discoveries and works” include, by way of
example, inventions, computer programs (including documentation of such
programs), technical improvements, processes, drawings, and works of authorship,
including all educational and sales materials or other publications which relate
to Company’s current business. The Employee 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 Employee’s employment or thereafter, all applications or
other endorsements necessary or appropriate to maintain patents and other rights
for the Company and to protect its title thereto. Any discoveries and
works which, within six (6) months after the termination of the Employee’s
employment hereunder, are made, disclosed, reduce to a tangible or written form
or description, or are reduced to practice by the Employee and which pertain to
work performed by the Employee while with, and in Employee’s capacity as an
Employee of the Company shall, as between the Employee and the Company presumed
to have been made during the Employee’s employment by the Company.
g.Representations, Warranties
and Acknowledgements.
(i) The
Employee acknowledges that (a) the Company considers Confidential
Information to be commercially and competitively valuable to the Company and
critical to its success; (b) Unauthorized use or disclosure of Confidential
Information would cause irreparable harm to the Company; and (c) by this
Agreement, the Company is taking reasonable steps to protect its legitimate
interests in its Confidential Information.
(ii) The
Employee also acknowledges that businesses that are competitive with the Company
include, but are not limited to, any business in which the Company is actively
involved on the Employee’s termination date, including but not limited to any
business involving marketing, consulting to or contract sales, detailing and
marketing support or any other marketing services for pharmaceutical or any
other related health care or biotechnology companies, including competitive
e-health businesses, recruiting, training, sales operations, patient assistance,
medical education and/or analytics.
(iii)The
Employee represents and warrants to the Company that Employee
is not a party to any agreement, or non-competition or other covenant or
restriction contained in any agreement, commitment, arrangement or understanding
(whether oral or written), that in any way conflicts with or limits the
Employee’s ability to commence or continue to render services to the Company or
that would otherwise limit the Employee’s ability to perform all
responsibilities in accordance with the terms and subject to the conditions of
the Employee’s employment.
(iv)The
Employee acknowledges that certain accounts are national
and
international in scope and the location of the Company’s customers is not
dependent on the geographic location of the Employee or the
Company.
(v)The
Employee consents and agrees that, during the Employee’s employment
with Company and thereafter, the Company may review, audit, intercept, access
and disclose all communications created, received or sent over the electronic
mail and internet access system provided by Company with or without notice to
the Employee and that such review, audit, interception, access, or disclosure
may occur during or after working hours. The Employee further
consents and agrees that the Company may, at any time, access and review the
contents of all computers, computer disks, other data storage equipment and
devices, files, desks, drawers, closets, cabinets and work stations which are
either on Company’s premises or which are owned or provided by
Company.
h. Remedies. In the
event of breach or threatened breach by the Employee
of any provision of Section 4 hereof, the Company shall be entitled to obtain
(i) temporary, preliminary and permanent injunctive relief, in each case without
the posting of any bond or other security, (ii) damages and an
equitable accounting of all earnings, profits and other benefits arising from
such breach, or threatened breach, (iii) recovery of all attorney’s fees and
costs incurred by the Company in obtaining such relief, (iv) repayment of any
severance benefits paid to the Employee pursuant to this Agreement or any
severance benefit agreement, plan or arrangement of the Company, and (v) any
other legal and equitable relief to which it may be entitled, including any and
all monetary damages which Company may incur as a result of said breach or
threatened breach. Pending arbitration pursuant to Section 8 of the
Agreement, the Company shall be entitled to cease making any payments or
providing any benefits to the Employee and to obtain temporary and preliminary
injunctive relief as described in Section 4(h)(i) from a court of competent
jurisdiction. The Company may pursue any remedy available, including
declaratory relief, concurrently or consecutively, in any order, and the pursuit
of one such remedy at any time will not be deemed an election of remedies or
waiver of the right to pursue any other remedy.
i.Early Resolution
Conference. This Agreement is understood to be clear
and
enforceable as written and is executed by both parties on that
basis. However, should the Employee later challenge any provision as
unclear, unenforceable, or inapplicable to activity that the Employee intends to
engage in, the Employee will first notify Company in writing and meet with a
Company representative and a neutral mediator (if the Company elects to retain
one at its expense) to discuss resolution of any disputes between the
parties. The Employee will provide this notification at least
fourteen (14) days before the Employee engages in any activity on behalf of a
competing business or engages in other activity that could foreseeably fall
within a questioned restriction. The failure to comply with this
requirement shall waive the Employee’s right to challenge the reasonable scope,
clarity, applicability, or enforceability of the Agreement and its restrictions
at a later time. All rights of both parties will be preserved if the
Early Resolution Conference requirement is complied with even if no agreement is
reached in the conference.
5. Termination
of Employment.
a. The
Employee is an employee at-will, and either the Employee or the
Company may terminate the employment relationship at any time for any reason
with or without Cause (as defined below). The date upon which the
termination of the Employee’s employment becomes effective pursuant to this
Agreement shall be referred to herein as the “Termination Date.” The Termination
Date shall be the date upon which any of the following events shall
occur:
(i) the death
of the Employee;
(ii) the
Disability (as defined below) of the Employee;
(iii) the
Company’s delivery of a written notice to the Employee of a
termination of the Employee’s employment for Cause (as defined
below);
(iv) the
Company’s delivery of a written notice to the Employee of a termination of the
Employee’s employment Without Cause (as defined below); or
(v) resignation
by the Employee.
b. For
purposes of this Agreement, the “Disability” of the Employee shall mean the
Employee’s inability, because of mental or physical illness or incapacity,
whether total or partial, to perform one or more of the primary duties of the
Employee’s employment with or without reasonable accommodation, and which
continues for a length of time that exceeds any period of leave following which
the Employee may have a right to be restored to the same job or to an equivalent
job under federal, state or local law.
c. For
purposes of this Agreement, the term “Cause” shall mean the
Employee’s (i) conviction or entry of a plea of guilty or nolo contendere, with
respect to any felony; (ii) commission of any act of willful misconduct, gross
negligence, fraud or dishonesty; (iii) violation of any term of this Agreement
or any written policy of the Company; or (iv) inability to substantially meet
the performance objectives other than any failure raising from your capacity due
to physical or mental illness for the respective position.
d. For
purposes of this Agreement, “Without Cause” shall mean for any
reason(s) whatsoever (other than the reasons described in Sections 5(a)(i),
5(a)(ii), 5(a)(iii), and 5(a)(v) hereof).
6. Payments Upon Termination of
Employment.
a. Death or
Disability. If the Employee’s employment hereunder is
terminated due to the Employee’s death or Disability pursuant to Sections
5(a)(i) or (ii) hereof, the Company shall pay or provide to the Employee, the
Employee’s designated beneficiary or to the Employee’s estate (i) all base
salary pursuant to Section 3(a) hereof and any vacation pay pursuant to Section
3(f) hereof, in each case which has been earned but unpaid as of the Termination
Date; and (ii) any benefits to which the Employee may be entitled under any
employee benefits plan, policy or arrangement pursuant to Section 3(b) hereof
(including, but not limited to, life insurance and disability insurance) in
which Employee is a participant in accordance with the written terms of such
plan, policy or arrangement up to and including the Termination
Date.
b. Termination for Cause or
Resignation. If the Employee’s employment hereunder is
terminated by the Company for Cause pursuant to Section 5(a)(iii) or due to the
Employee’s resignation pursuant to Section 5(a)(v) (except if such resignation
is for Good Reason in connection with a Change in Control), the Company shall
pay or provide to the Employee (i) all base salary pursuant to Section 3(a)
hereof and any vacation pay pursuant to Section 3(d) hereof, in each case which
has been earned but unpaid as of the Termination Date; and (ii) any benefits to
which the Employee may be entitled under any employee benefits plan, policy or
arrangement pursuant to Section 3(f) hereof in which Employee is a participant
in accordance with the written terms of such plan, policy or arrangement up to
and including the Termination Date.
c. Termination Without Cause
Apart from a Change in Control. If prior to a Change in
Control or after six (6) months following a Change in Control the Company
terminates Employee’s employment with the Company Without Cause, subject to
Section 7, the Company shall award the Employee a lump sum severance payment
equal to twenty-six (26) weeks of the Employee’s base pay, less applicable
withholding, subject to the terms and conditions of this Agreement.
d. Termination Without Cause or
Resignation for Good Reason Upon or within Six Months Following a Change in
Control. If upon or within six (6) months following a Change
in Control (i) the Company (or any parent or subsidiary or successor of the
Company) terminates Employee’s employment with the Company other than for Cause,
death or disability, or (ii) the Employee resigns from such employment for Good
Reason, then, subject to Section 7, (A) Employee will be entitled to a lump sum
severance payment equal to fifty-two (52) weeks of the Employee’s base pay, less
applicable withholding, subject to the terms and conditions of this Agreement,
and (B) all outstanding unvested stock options and restricted stock
awards previously granted to Employee shall immediately become vested
and exercisable and salable upon such termination.
(i) As
used herein, a “Change in Control” of the Company means a transaction or a
series of related transactions involving either (i) a sale, transfer or other
disposition of all or substantially all of the Company’s assets, (ii) the
consummation of a merger or consolidation of the Company or (iii) a sale or
exchange of capital stock of the Company, in any case as a result of which the
stockholders of the Company immediately prior to such transaction or series of
related transactions own, in the aggregate, less than a majority of the
outstanding voting capital stock or equity interests of the surviving, resulting
or transferee entity.
(ii)As
used herein, “Good Reason” shall mean Employee’s resignation within thirty (30)
days following the expiration of any Company cure period (discussed below)
following the occurrence of one or more of the following, without Employee’s
consent: (i) a material diminution of Employee’s authority, duties or
responsibilities; provided, however, that a reduction in authority, duties, or
responsibilities solely by virtue of the Company being acquired and made part of
a larger entity (as, for example, when the Chief Executive Officer of the
Company remains as such following a change of control of the Company but is not
made the Chief Employee Officer of the acquiring corporation) will not
constitute “Good Reason”; (ii) material reduction in the Employee’s base salary;
(iii) the relocation of the offices of the Company more than one hundred (100)
miles from the Company’s Somerset, New Jersey office; or (iv) a material breach
of the Agreement by the Company. Employee will not resign for Good
Reason without first providing the Company with written notice of the acts or
omissions constituting the grounds for “Good Reason” within ninety (90) days of
the initial existence of the grounds for “Good Reason” and a reasonable cure
period of not less than thirty (30) days following the date of such
notice.
e. No Other
Payments. Except as provided in this Section 6, the Employee
shall not be entitled to receive any other payments or benefits from the Company
due to the termination of the Employee’s employment, including but not limited
to, any employee benefits under any of the Company’s employee benefits plans or
arrangements (other than at the Employee’s expense under the Consolidated
Omnibus Budget Reconciliation Act of 1985 or pursuant to the written terms of
any pension benefit plan in which the Employee is a participant in which the
Company may have in effect from time to time) or any right to severance
benefits.
7. Conditions to Receipt of
Severance; No Duty to Mitigate.
a. Separation Agreement and
Release of Claims. The receipt of any severance pursuant to
Section 6 will be subject to Employee signing and not revoking a separation
agreement and release of claims in a form reasonably satisfactory to the Company
(the “Release”) and provided that such Release becomes effective and irrevocable
no later than sixty (60) days following the termination date (such deadline, the
“Release Deadline”). If the Release does not become effective and
irrevocable by the Release Deadline, Employee will forfeit any rights to
severance or benefits under this Agreement. In no event will
severance payments or benefits be paid or provided until the Release becomes
effective and irrevocable.
b. Section
409A.
(i) Notwithstanding
anything to the contrary in this Agreement, no severance pay or benefits to be
paid or provided to Employee, if any, pursuant to this Agreement that, when
considered together with any other severance payments or separation benefits,
are considered deferred compensation under Code Section 409A, and the final
regulations and any guidance promulgated thereunder (“Section 409A”) (together,
the “Deferred Payments”) will be paid or otherwise provided until Employee has a
“separation from service” within the meaning of Section
409A. Similarly, no severance payable to Employee, if any, pursuant
to this Agreement that otherwise would be exempt from Section 409A pursuant to
Treasury Regulation Section 1.409A-1(b)(9) will be payable until Employee has a
“separation from service” within the meaning of Section 409A.
(ii)Any
severance payments or benefits under this Agreement that would be considered
Deferred Payments will be paid on, or, in the case of installments, will not
commence until, the sixtieth (60th) day following Employee’s separation from
service, or, if later, such time as required by Section
7(d)(iii). Except as required by Section 7(d)(iii), any installment
payments that would have been made to Employee during the sixty (60) day period
immediately following Employee’s separation from service but for the preceding
sentence will be paid to Employee on the sixtieth (60th) day following
Employee’s separation from service and the remaining payments shall be made as
provided in this Agreement.
(iii)Notwithstanding
anything to the contrary in this Agreement, if Employee is a “specified
employee” within the meaning of Section 409A at the time of Employee’s
termination (other than due to death), then the Deferred Payments that are
payable within the first six (6) months following Employee’s separation from
service will become payable on the first payroll date that occurs on or after
the date six (6) months and one (1) day following the date of Employee’s
separation from service. All subsequent Deferred Payments, if any,
will be payable in accordance with the payment schedule applicable to each
payment or benefit. Notwithstanding anything herein to the contrary,
if Employee dies following Employee’s separation from service, but prior to the
six (6) month anniversary of the separation from service, then any payments
delayed in accordance with this paragraph will be payable in a lump sum as soon
as administratively practicable after the date of Employee’s death and all other
Deferred Payments will be payable in accordance with the payment schedule
applicable to each payment or benefit. Each payment and benefit
payable under this Agreement is intended to constitute a separate payment for
purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
(iv)Any
amount paid under this Agreement that satisfies the requirements of the
“short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations will not constitute Deferred Payments for purposes of clause (i)
above.
(v)Any
amount paid under this Agreement that qualifies as a payment made as a result of
an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii)
of the Treasury Regulations that does not exceed the Section 409A Limit (as
defined herein) will not constitute Deferred Payments for purposes of clause (i)
above. For purposes of this Agreement, “Section 409A Limit” will mean
two (2) times the lesser of: (x) Employee’s annualized compensation based upon
the annual rate of pay paid to Employee during Employee’s taxable year preceding
Employee’s taxable year of Employee’s separation from service as determined
under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A)(1) and any Internal
Revenue Service guidance issued with respect thereto; or (y) the maximum amount
that may be taken into account under a qualified plan pursuant to Section
401(a)(17) of the Internal Revenue Code for the year in which Employee’s
separation from service occurred.
(vi)The
foregoing provisions are intended to comply with the requirements of Section
409A so that none of the severance payments and benefits to be provided
hereunder will be subject to the additional tax imposed under Section 409A, and
any ambiguities herein will be interpreted to so comply. The Company
and Employee agree to work together in good faith to consider amendments to this
Agreement and to take such reasonable actions which are necessary, appropriate
or desirable to avoid imposition of any additional tax or income recognition
prior to actual payment to Employee under Section 409A.
c. No Duty to
Mitigate. Employee will not be required to mitigate the amount
of any payment contemplated by this Agreement, nor will any earnings that
Employee may receive from any other source reduce any such payment.
8. Arbitration.
a.Any
controversy or claim arising out of or relating to this Agreement, the
employment relationship between the Employee and the Company, or the termination
thereof, including the arbitrability of any controversy or claim, which cannot
be resolved amicably after a reasonable attempt to negotiate such a resolution
(including by exhaustion of all grievance or claims procedures made available by
the Company or any employee benefit plan of the Company) shall be submitted to
arbitration under the auspices of the American Arbitration Association in
accordance with its Commercial Dispute Resolution Procedures and Rules, as such
rules may be amended from time to time. The arbitration will be held
at the American Arbitration Association’s Somerset, New Jersey office nearest to
the Company’s place of business where the Employee works or to which the
Employee reports. The award of the arbitrator shall be final and
binding upon the parties, and judgment may be entered with respect to such award
in any court of competent jurisdiction. Any arbitration under this
Agreement shall be governed by and subject to the confidentiality restrictions
set forth in Section 4(e) of this Agreement. The Employee
acknowledges reading, prior to the signing of this agreement, the Commercial
Dispute Resolution Procedures and Rules of the American Arbitration Association,
which are available via the internet at
http://www.adr.org. Notwithstanding the foregoing, any controversy or
claim arising out of or relating to any claim by the Company for temporary or
preliminary relief with respect to Section 4 of this Agreement need not be
resolved in arbitration and may be resolved in accordance with Section 4(h) of
this Agreement.
b.The
Employee acknowledges that this agreement to submit to
arbitration
includes all controversies or claims of any kind (e.g., whether in contract or
in tort, statutory or common law, legal or equitable) now existing or hereafter
arising under any federal, state, local or foreign law (except claims by the
Company for temporary or preliminary injunctive relief pursuant to Section 4 as
set forth above), including, but not limited to, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of 1866, the Family and Medical Leave Act, the Employee Retirement Income
Security Act, and the Americans With Disabilities Act, and all similar state
laws, and the Employee hereby waives all rights there under to have a judicial
tribunal resolve such claims.
9.Deductions and
Withholding. The Employee agrees that the Company shall
withhold from any and all compensation payable under this Agreement all federal,
state, local and/or other taxes which the Company determines are required to be
withheld under applicable statutes and/or regulations from time to time in
effect and all amounts required to be deducted in respect of the Employee’s
coverage by and participation in applicable Employee benefit plans, policies or
arrangements.
10. Entire
Agreement. This Agreement embodies the entire agreement of
the
parties with respect to the Employee’s employment and supersedes any other prior
oral or written agreements between the Employee and the Company and its
affiliates. This Agreement may not be changed or terminated orally
but only by an agreement in writing signed by the parties hereto.
11. Waiver. The
waiver by the Company of a breach of any provision of this
Agreement by the Employee shall not operate or be construed as a waiver of any
subsequent breach by the Employee. The waiver by the Employee of a
breach of any provision of this Agreement by the Company shall not operate or be
construed as a waiver of any subsequent breach by the Company.
12.Governing
Law. This Agreement shall be governed by, and construed in
accordance
with, the laws of the State of New Jersey, without regard to the choice of law
rules of any state or where the Employee is in fact required to
work.
13.Jurisdiction. Any
legal suit, action or proceeding against any party hereto arising out of or
relating to this Agreement that is not subject to arbitration pursuant to
Section 8 of this Agreement shall be instituted in a New Jersey federal court or
state court in the County of Somerset and each party hereto waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding and each party hereto irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding.
14.Assignability. The
obligations of the Employee may not be delegated and,
except as expressly provided in Section 6(a) relating to the designation of
beneficiaries, the Employee may not, without the Company’s written consent
thereto, assign, transfer, convey, pledge, encumber, hypothecate or otherwise
dispose of this Agreement or any interest therein. Any such attempted
delegation or disposition shall be null and void and without
effect. The Company and the Employee agree that this Agreement and
all of the Company’s rights and obligations hereunder may be assigned or
transferred by the Company to and may be assumed by and become binding upon and
may inure to the benefit of any affiliate of or successor to the
Company. The term “successor” shall mean (with respect to the Company
or any of its subsidiaries) any other corporation or other business entity
which, by merger, consolidation, purchase of the assets, or otherwise, acquires
all or a material part of the assets of the Company. Any assignment
by the Company of its rights or obligations hereunder to any affiliate of or
successor to the Company shall not be a termination of employment for purposes
of this Agreement.
15. Severability. If
any provision of this Agreement as applied to either party or
to any circumstances shall be adjudged by a court of competent jurisdiction or
arbitrator to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement or the validity or enforceability of this
Agreement. If any court or arbitrator construes any of the provisions
of Section 4 hereof, or any part thereof, to be unreasonable because of the
duration of such provision or the geographic or other scope thereof, such court
or arbitrator may reduce the duration or restrict the geographic or other scope
of such provision and enforce such provision as so reduced or
restricted.
16. Notices. All
notices to the Employee hereunder shall be in writing and shall be
delivered personally, sent by overnight courier or sent by registered or
certified mail, return receipt requested, to:
Mr. Nat
Krishnamurti
c/o
inVentiv Health, Inc.
500
Atrium Drive
Somerset,
New Jersey 08873
All
notices to the Company hereunder shall be in writing and shall be delivered
personally, sent by overnight courier or sent by registered or certified mail,
return receipt requested, to:
inVentiv
Health, Inc.
500
Atrium Drive
Somerset,
New Jersey 08873
Attention: Chief
Resource Officer
Either
party may change the address to which notices shall be sent by sending written
notice of such change of address to the other party.
17. Section
Headings. The section headings contained in this Agreement are
for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
18. Counterparts. This
Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same instrument.
19. Voluntary
Agreement. The Employee acknowledges that before entering
into this Agreement, the Employee has had the opportunity to consult with any
attorney or other advisor of Employee’s choice, and that this Section 19 of this
Agreement constitutes advice from the Company to do so if Employee
chooses. The Employee further acknowledges that Employee entered into
this Agreement of Employee’s own free will, and that no promises or
representations have been made to Employee by any person to induce Employee to
enter into this Agreement other than the express terms set forth
herein. The Employee further acknowledges that Employee has read this
Agreement and understands all of its terms, including the waiver of the right to
have all disputes with and claims against the Company decided in a judicial
forum set forth in Section 8. The Employee may take up to seven (7)
days from today to consider, sign and return this Agreement. In
addition, the Employee may revoke this Agreement after signing it, but only by
delivering a signed revocation notice to the Company within seven (7) days of
signing this Agreement. Such a revocation shall automatically
terminate the Employee’s employment due to resignation pursuant to Section
5(a)(v).
[Remainder
of Page Left Blank]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date first above written.
INVENTIV
HEALTH, INC.
By: /s/ R. Blane Walter
R. BLANE
WALTER
CEO,
inVentiv Health Inc.
EMPLOYEE
By:
/s/ Nat Krishnamurti
NAT
KRISHNAMURTI
Chief Accounting Officer, inVentiv Health,
Inc.