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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) March 1, 1999
BORON, LePORE & ASSOCIATES, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 000-23093 22-2365997
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
17-17 Route 208 North, Fair Lawn, NJ 07410
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (201) 791-7272
N/A
(Former Name or Former Address, if Changed Since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
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Item 5. Other Events.
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Boron, LePore & Associates, Inc. (the "Company") has entered into revised
employment agreements with the following employees: Patrick G. LePore, Timothy
J. McIntyre, and Martin J. Veilleux. The Company has also entered into an
indemnification agreement with Patrick G. LePore. These agreements are attached
as Exhibits hereto and are incorporated by reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(c) Exhibits
Exhibit No. Description
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10.4 Revised Employment Agreement for Patrick G. LePore
10.7 Revised Employment Agreement for Timothy J. McIntyre
10.11 Revised Employment Agreement for Martin J. Veilleux
10.30 Indemnification Agreement for Patrick G. LePore
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
Date July 13, 1999 BORON, LePORE & ASSOCIATES, INC.
(Registrant)
By: /s/ Patrick G. LePore
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Patrick G. LePore
Chairman, Chief Executive Officer and
President
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EXHIBIT INDEX
Exhibit No. Description
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10.4 Revised Employment Agreement for Patrick G. LePore
10.7 Revised Employment Agreement for Timothy J. McIntyre
10.11 Revised Employment Agreement for Martin J. Veilleux
10.30 Indemnification Agreement for Patrick G. LePore
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Exhibit 10.4
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made as of the 30th day of
March, 1999, between Boron, LePore & Associates, Inc., a Delaware corporation
(the "Company"), and Patrick G. LePore ("Executive").
WHEREAS, Executive has previously had a valued association with the
Company;
WHEREAS, the Company is desirous of engaging Executive to continue to serve
as President and Chief Executive Officer of the Company; and
WHEREAS, Executive is desirous of committing to serve the Company on the
terms herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The initial term of this Agreement shall extend from the date
hereof (the "Commencement Date") until the fourth anniversary of the
Commencement Date. The term of this Agreement shall be subject to termination as
provided in Paragraph 6 and may be referred to herein as the "Period of
Employment."
2. Position and Duties. During the Period of Employment, Executive shall serve
as the Chairman, President and Chief Executive Officer of the Company, reporting
to the Board of Directors of the Company (the "Board"), and shall have general
charge of and supervision over the business of the Company and its subsidiaries
as its chief executive officer, subject to his supervision of the Board of
Directors, and such other powers and duties as may from time to time be
prescribed by the Board, provided that such duties are consistent with
Executive's position or other positions that he may hold from time to time.
Executive shall devote his full working time and efforts to the business and
affairs of the Company. Notwithstanding the foregoing, Executive may serve on
other boards of directors or engage in religious, charitable or other community
activities as long as such services and activities are disclosed to the Board
and do not materially interfere with Executive's performance of his duties to
the Company as provided in this Agreement.
3. Compensation and Related Matters.
(a) Base Salary. Initially, Executive shall receive an annual base salary
("Base Salary") at the rate of Three Hundred Fifty Thousand Dollars and xx/100
Cents ($350,000). Executive's Base Salary shall be increased, but not decreased,
annually based on Executive's annual performance reviews.
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(b) Annual Bonus. In addition to Base Salary, Executive shall be entitled
to participate in such executive bonus program as may be established by the
Company and then in effect, subject to and in accordance with the terms thereof
(the "Annual Bonus").
(c) Other Benefits. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit Plans maintained for senior executive officers in
effect on the date hereof. As used herein, "Employee Benefit Plans" include,
without limitation, each pension and retirement plan; supplemental pension,
retirement and deferred compensation plan; savings and profit-sharing plan;
stock ownership plan; stock purchase plan; stock option plan; life insurance
plan; medical insurance plan; disability plan; and health and accident plan or
arrangement established and maintained by the Company on the date hereof for
senior executive officers of the Company. During the Period of Employment,
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan or arrangement which may, in the future, be made available
by the Company to its executives and key management employees, subject to and on
a basis consistent with the terms, conditions and overall administration of such
plan or arrangement. Compliance with this Subparagraph 3(c) shall in no way
create any obligation, expressed or implied, on the part of the Company or any
parent, subsidiary or affiliate of the Company with respect to the continuation
of any benefit plan or arrangement maintained as of or prior to the date hereof
or the creation and maintenance of any particular benefit or other plan or
arrangement of any time after the date hereof. Nothing paid to Executive under
the Employee Benefit Plans presently in effect or any employee benefit plan or
arrangement which may be made available in the future shall be deemed to be in
lieu of compensation payable to Executive under Subparagraphs 3(a) and 3(b).
(d) Liability Insurance. The Company shall pay the premiums on, and
maintain in effect throughout the Period of Employment, director and officer
liability insurance coverage as is paid and maintained for other directors and
senior executive officers of the Company.
In addition, for six (6) years following the termination of the Period of
Employment, the Company shall pay the premiums on, and maintain in effect, the
same level of director and officer liability insurance coverage as was paid and
maintained for Executive as of the last day of the Period of Employment. Such
coverage shall be provided only with respect to claims incurred during
Executive's Period of Employment.
(e) Automobile Allowance. The Company shall pay, in addition to Executive's
Base Salary and Annual Bonus, an annual amount of $1,200 to Executive, to be
used for the purpose of maintaining an automobile.
(f) Expenses. Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him (in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers) in performing services hereunder during the Period of
Employment, provided that Executive properly accounts therefor in accordance
with Company policy.
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(g) Vacations. Executive shall be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for its
senior executive officers, but in any case not less than five (5) weeks per
annum. Executive shall also be entitled to all paid holidays given by the
Company to its senior executive officers.
(h) Clubs. The Company shall maintain memberships in two country clubs as
designated by the Executive during the Period of Employment and during any
period in which severance is paid.
4. Unauthorized Disclosure.
(a) Confidential Information. Executive acknowledges that in the course of
his employment with the Company, he has been allowed to become, and shall
continue to be allowed to become, acquainted with the Company's business
affairs, information, trade secrets, and other matters which are of a
proprietary or confidential nature, including, but not limited to, and the
Company's business opportunities and plans, sales and marketing plans, price and
cost information, earnings information and projections, business relationships,
joint ventures, finances, various sales techniques and other confidential
information (collectively the "Confidential Information"). Executive understands
and acknowledges that such Confidential Information is confidential, and he
agrees not to disclose such Confidential Information to anyone outside the
Company except as he deems reasonably necessary or appropriate in connection
with performing his duties on behalf of the Company. Executive further agrees
that he shall not during employment and/or at any time thereafter use such
Confidential Information in competing, directly or indirectly, with the Company.
At such time as Executive shall cease to be employed by the Company, he shall
immediately turn over to the Company all Confidential Information, including
papers, documents, writings, electronically stored information, other property,
and all copies of them provided to or created by him during the course of his
employment with the Company.
(b) Heirs, Successors, and Legal Representatives. The foregoing provisions
of this Paragraph 4 shall be binding upon Executive's heirs, successors, and
legal representatives. The provisions of this Paragraph 4 shall survive the
termination of this Agreement for any reason.
5. Covenant Not to Compete. The provisions of this Paragraph 5 shall apply
during the Period of Employment with the Company and for a period of two (2)
years thereafter following termination of the Executive's employment
relationship with the Company for any reason, provided that such non-competition
period shall be three (3) years if the Executive is entitled to compensation
upon termination as contemplated by Subparagraphs 8(a) or 8(b), in either case
commencing when the employment relationship has ended (the "Non-Competition
Period"). In consideration for Executive's employment by the Company under the
terms provided in this Agreement and as a means to aid in the performance and
enforcement of the terms of the Unauthorized Disclosure provisions of Paragraph
4, Executive agrees that he will not, without the express written consent of the
Company, directly or indirectly, anywhere in the United
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States, engage in any activity which is, or participate or invest in, or provide
or facilitate the provision of financing to, or assist (whether as owner, part-
owner, shareholder, partner, director, officer, trustee, employee, agent or
consultant, or in any other capacity), any business, organization or person
other than the Company (or any affiliate of the Company), whose business,
activities, products or services are competitive with any of the business,
activities, products or services conducted or offered by the Company and its
subsidiaries at the time of the termination of Executive's employment with the
Company, which business, activities, products and services shall include in any
event peer influence meetings, telemarketing activities, contract sales, field
force logistics services and outsource marketing involving pharmaceutical and
healthcare companies. However, direct and/or indirect ownership by Executive of
not more than five percent (5%) of the number of shares outstanding of a
publicly-held corporation which is engaged primarily in such business shall not
be considered a violation of the preceding sentence.
Further, Executive agrees that Executive shall not, during the Non-
Competition Period, directly or indirectly, solicit or induce any present or
future employee of the Company to accept employment with Executive or with any
business, operation, corporation, partnership, association, agency, or other
person or entity with which Executive may be associated. However, Executive
shall not be deemed to be in violation of the preceding sentence if Executive is
approached by such a Company employee regarding employment with Executive.
Executive also agrees that Executive shall not employ or cause any business,
operation, corporation, partnership, association, agency, or other person or
entity with which Executive may be associated to employ any present or future
officer, director or regional manager of the Company without providing the
Company with ten (10) days' prior written notice of such proposed employment.
6. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his death.
(b) Permanent Disability. If, as a result of Executive's permanent
incapacity due to physical or mental illness or disability, Executive shall have
been absent from his duties hereunder on a full-time basis for one hundred
eighty (180) calendar days in the aggregate in any twelve (12) month period, the
Company may terminate Executive's employment hereunder.
(c) Termination by Company For Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for
Cause, provided that such termination is approved by not less than a majority of
Board at a meeting of the Board called and held for such purpose. For purposes
of this Agreement, "Cause" shall mean:
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(i) the Executive shall commit an act of fraud, embezzlement,
misappropriation or breach of fiduciary duty against the Company or any of
its subsidiaries, or shall be convicted by a court of competent
jurisdiction of, or shall plead guilty or nolo contendere to, any felony or
any crime involving moral turpitude; or
(ii) the Executive shall commit a material breach of any of the
covenants, terms or provisions hereof, which breach has not been remedied
within thirty (30) days after delivery to the Executive by the Board of
written notice of the facts constituting the breach; or
(iii) the Executive shall have failed to comply with written
instructions from the Board, which are reasonable and consistent with
Section 3, or shall have substantially failed to perform the Executives's
duties hereunder for a period of thirty (30) days after written notice from
the Board.
(d) Termination Without Cause. At any time during the Period of Employment,
the Company may terminate Executive's employment hereunder without Cause if such
termination is approved by not less than a majority of the Board at a meeting of
the Board called and held for such purpose.
(e) Termination by Executive. At any time during the Period of Employment,
Executive may terminate his employment hereunder for any reason, including but
not limited to Good Reason. For purposes of this Agreement, "Good Reason" shall
mean that Executive has complied with the "Good Reason Process" (hereinafter
defined) following the occurrence of any of the following events: (A) a
substantial adverse change in the nature or scope of the Executive's
responsibilities, authorities, title, powers, functions, or duties; (B) a
reduction in the Executive's annual base salary except for across-the-board
salary reductions similarly affecting all or substantially all management
employees; or (C) the relocation of the offices at which the Executive is
principally employed to a location more than fifty (50) miles from Fair Lawn,
New Jersey. "Good Reason Process" shall mean that (i) the Executive reasonably
determines in good faith that a "Good Reason" event has occurred; (ii) Executive
notifies the Company in writing of the occurrence of the Good Reason event;
(iii) Executive cooperates in good faith with the Company's efforts, for a
period not less than thirty (30) days following such notice, to modify
Executive's employment situation in a manner acceptable to Executive and
Company; and (iv) notwithstanding such efforts, one or more of the Good Reason
events continues to exist and has not been modified in a manner acceptable to
Executive.
(f) Notice of Termination. Except for termination as specified in
Subparagraph 6(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
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(g) Date of Termination. "Date of Termination" shall mean: (i) if
Executive's employment is terminated by his death, the date of his death; (ii)
if Executive's employment is terminated on account of permanent disability under
Subparagraph 6(b), the date on which Notice of Termination is given; (iii) if
Executive's employment is terminated by the Company under Subparagraph 6(c) or
6(d), thirty (30) days after the date on which a Notice of Termination is given;
and (iv) if Executive's employment is terminated by Executive under Subparagraph
6(e), thirty (30) days after the date on which a Notice of Termination is given.
7. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death or
disability, the Company shall, within ninety (90) days of death or such
disability termination, pay in a lump sum amount to the Executive (or his
surviving spouse in the case of death) an amount equal to the Executive's
accrued and unpaid Base Salary. In the case of termination due to death, the
Company shall also continue payment of Executive's Base Salary and target bonus
at the rates in effect at the Date of Termination to Executive's surviving
spouse for one (1) year. In either case, for a period of one (1) year following
the Date of Termination, the Company shall provide medical and dental insurance
coverage to Executive (in the case of disability), Executive's spouse and
dependents, on the same terms and conditions as though Executive had remained
employed. In addition to the foregoing, any payments to which Executive (or his
spouse, beneficiaries, or estate, in the case of death) may be entitled under
any employee benefit plan shall also be paid in accordance with the terms of
such plan or arrangement. Such payments, in the aggregate, shall fully discharge
the Company's obligations hereunder.
(b) During any period that Executive fails to perform his duties hereunder
as a result of permanent incapacity due to physical or mental illness or
disability, Executive shall receive the benefits provided under the Company's
then-existing long-term disability insurance policy for senior executive
officers.
(c) If Executive's employment is terminated by the Company for Cause as
provided in Subparagraph 6(c) or Executive terminates his employment hereunder
without Good Reason as provided in Subparagraph 6(e), then the Company shall,
through the Date of Termination, pay Executive in a lump sum amount his accrued
and unpaid Base Salary at the rate in effect at the time Notice of Termination
is given. Thereafter, the Company shall have no further obligations to Executive
except as otherwise expressly provided under this Agreement, provided any such
termination shall not adversely affect or alter Executive's rights under any
employee benefit plan of the Company in which Executive, at the Date of
Termination, has a vested interest, unless otherwise provided in such employee
benefit plan or any agreement or other instrument attendant thereto.
(d) If Executive's employment is terminated by the Company without Cause as
provided in Subparagraph 6(d), if Executive terminates his employment for Good
Reason as provided in Subparagraph 6(e) or if Executive's employment with the
Company terminates as a result of the expiration of the initial Period of
Employment without extension, then the
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Company shall, through the Date of Termination, pay Executive his accrued and
unpaid Base Salary at the rate in effect at the time Notice of Termination is
given. Payment of all amounts under this Subparagraph 7(d) is agreed to by the
parties hereto to be in full satisfaction, compromise and release of any claims
arising out of Executive's employment or termination thereof pursuant to
Subparagraph 6(d) or 6(e). In any case, the payment of all such amounts under
this Subparagraph 7(d) shall be contingent upon the Employee's compliance with
Paragraphs 4 and 5 above and the Executive's delivery of a general release upon
termination of employment covering all matters arising under or in connection
with this Agreement. Such release shall be in a form reasonably satisfactory to
the Company, it being understood that no severance benefits shall be provided
unless and until the Executive determines to execute and deliver such release.
Subject to the foregoing, the Company shall also provide Executive with the
following "Severance Benefits:"
(i) The Company shall pay Executive in a lump sum, on the Date of
Termination, an amount equal to two (2) times the sum of (A) Executive's
current Base Salary and (B) his most recently paid Annual Bonus, or target
bonus (whether or not such bonus is earned or would otherwise have been
paid) for the year of termination, if higher.
(ii) In addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance policies,
the Company shall, for a period of two (2) years commencing on the Date of
Termination, continue to provide family medical and dental insurance
coverage to Executive, Executive's spouse and dependents, on the same terms
and conditions as though Executive had remained employed. In the event
Executive's participation in any medical or dental insurance plan is
barred, the Company shall arrange to provide Executive with benefits
substantially equivalent to those which Executive would otherwise have
received had his participation not been barred;
(iii) Executive shall receive all the rights and benefits granted or in
effect with respect to Executive under the Company's employee stock option
or incentive plans and agreements with Executive pursuant thereto. In
addition to the foregoing, all stock options and restricted stock awards
shall be deemed fully vested as of the date of termination, and all
outstanding option agreements shall be deemed amended to so provide; and
(iv) Executive shall be entitled to receive reimbursement of any
reasonable legal fees or costs incurred by him in obtaining or enforcing
any right or benefit provided by this Agreement, except in cases involving
frivolous or bad faith litigation initiated by Executive.
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(e) Nothing contained in the foregoing Subparagraphs 7(a) through 7(d)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
8. Payment. The provisions of this Paragraph 8 set forth certain terms of an
agreement reached between Executive and the Company regarding Executive's rights
and obligations upon or following the occurrence of a Change in Control of the
Company. These provisions are intended to assure and encourage in advance
Executive's continued attention and dedication to his assigned duties and his
objectivity during the pendency and after the occurrence of any such event.
These provisions shall apply in lieu of, and expressly supersede, the provisions
of Subparagraph 7(d)(i) regarding Severance Benefits in the event the
Executive's employment terminates as contemplated by Subparagraphs 8(a) or 8(b),
it being understood that the provisions of Section 7(d)(ii) through (iv) shall
continue to apply in the event of a termination under Section 8(a) or 8(b)
below.
(a) Upon Change in Control. If, within the thirty (30) day period
immediately following a Change in Control, Executive elects to terminate his
employment with the Company, then the Company shall pay Executive in a lump sum
an amount equal to the sum of (A) three (3) times the Executive's current Base
Salary (or his Base Salary immediately prior to the Change of Control, if
greater), (B) three (3) times his Highest Bonus (as hereinafter defined), and
(C) any Gross-Up Payment provided under Subparagraph 8(c) below. Such payment
shall be made no later than three (3) days after the Date of Termination. For
purposes of this Section 8, Highest Bonus shall mean the largest target bonus
(whether paid or not) established for work performed in the three most recently
completed fiscal years.
(b) After Change in Control. If, within the eighteen (18) month period
following a Change of Control, Executive's employment is terminated pursuant to
or under the circumstances contemplated by Section 7(d), then the Company shall
pay Executive in a lump sum an amount equal to the sum of (A) three (3) times
the Executive's current Base Salary (or his Base Salary immediately prior to the
Change of Control, if greater), (B) three (3) times his Highest Bonus, and (C)
any Gross-Up Payment provided under Subparagraph 8(c) below.
(c) Additional Benefits.
(i) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any compensation, payment or
distribution by the Company to or for the benefit of the Executive, whether
paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise, other than amounts payable under the Company's
Incentive Bonus Plan for Executives, (the "Severance Payments"), would be
subject to the excise tax imposed by Section 4999 of the Code, or any
interest or penalties are incurred by the Executive with respect to such
excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") such that the net amount
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retained by the Executive, after deduction of any Excise Tax on the
Severance Payments, any Federal, state, and local income tax, employment
tax and Excise Tax upon the payment provided by this subsection, and any
interest and/or penalties assessed with respect to such Excise Tax, shall
be equal to the Severance Payments.
(ii) Subject to the provisions of Subparagraph 8(c)(iii), all
determinations required to be made under this Subparagraph 8(c), including
whether a Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by Arthur Andersen LLP or any other nationally
recognized accounting firm selected by the Company (the "Accounting Firm"),
which shall provide detailed supporting calculations both to the Company
and the Executive within fifteen (15) business days of the Date of
Termination, if applicable, or at such earlier time as is reasonably
requested by the Company or the Executive. For purposes of determining the
amount of the Gross-Up Payment, the Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income
taxation applicable to individuals for the calendar year in which the
Gross-Up Payment is to be made, and state and local income taxes at the
highest marginal rates of individual taxation in the state and locality of
the Executive's residence on the Date of Termination, net of the maximum
reduction in federal income taxes which could be obtained from deduction of
such state and local taxes. The initial Gross-Up Payment, if any, as
determined pursuant to this Subparagraph 8(c)(ii), shall be paid to the
applicable tax authorities on behalf of the Executive within five days of
the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive, the Company
shall furnish the Executive with an opinion of counsel that failure to
report the Excise Tax on the Executive's applicable federal income tax
return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be binding upon the
Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-
Up Payments which will not have been made by the Company should have been
made (an "Underpayment"). In the event that the Company exhausts its
remedies pursuant to Subparagraph 8(c)(iii) and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred, consistent with
the calculations required to be made hereunder, and any such Underpayment,
and any interest and penalties imposed on the Underpayment and required to
be paid by the Executive in connection with the proceedings described in
Subparagraph 8(c)(iii), shall be promptly paid by the Company to or for the
benefit of the Executive.
(iii) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-up Payment. Such notification shall be given as
soon as practicable but no later than ten (10) business days after the
Executive knows of such claim and shall apprise the Company of the nature
of such claim and the date on which
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such claim is requested to be paid. The Executive shall not pay such claim
prior to the expiration of the thirty (30) day period following the date on
which he gives such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due). If
the Company notifies the Executive in writing prior to the expiration of
such period that it desires to contest such claim, provided that the
Company has set aside adequate reserves to cover the Underpayment and any
interest and penalties thereon that may accrue, the Executive shall:
(A) give the Company any information reasonably requested by the
Company relating to such claim,
(B) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney selected by the Company,
(C) cooperate with the Company in good faith in order effectively
to contest such claim, and
(D) permit the Company to participate in any proceedings relating
to such claim; provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for
any Excise Tax or income tax, including interest and penalties with
respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing
provisions of this Subparagraph 8(c)(iii), the Company shall control
all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the
Executive to pay the tax claimed and sue for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute
such contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate courts,
as the Company shall determine; provided, however, that if the Company
directs the Executive to pay such claim and sue for a refund, the
Company shall advance the amount of such payment to the Executive on
an interest-free basis and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax,
including interest or penalties with respect thereto, imposed with
respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of
the statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control
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of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issues
raised by the Internal Revenue Service or any other taxing authority.
(iv) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Subparagraph 8(c)(iii), the Executive becomes
entitled to receive any refund with respect to such claim, the Executive
shall (subject to the Company's complying with the requirements of
Subparagraph 8(c)(iii)) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Subparagraph 8(c)(iii), a determination
is made that the Executive shall not be entitled to any refund with respect
to such claim and the Company does not notify the Executive in writing of
its intent to contest such denial of refund prior to the expiration of
thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
(d) Definitions. For purposes of this Agreement "Change in Control" shall
mean (a) the sale of all or substantially all of the assets of the Company and
its subsidiaries to an unrelated person or entity; (b) a merger, reorganization
or consolidation in which the holders of the Company's outstanding voting power
immediately prior to such transaction do not own a majority of the outstanding
voting power of the surviving or resulting entity immediately upon completion of
such transaction; (c) the sale of all or substantially all of the outstanding
stock of the Company to an unrelated person or entity in which the holders of
the Company's outstanding voting power immediately prior to such transaction do
not own a majority of the outstanding voting power of the surviving or resulting
entity immediately upon completion of such transaction; or (d) any other
transaction or series of transactions where the owners of the Company's
outstanding voting power immediately prior to such transaction do not own a
majority of the outstanding voting power of the surviving or resulting entity
immediately upon completion of such transaction.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown
in the Company's personnel records;
11
<PAGE>
if to the Company:
Boron, LePore & Associates, Inc.
17-17 Route 208 North
Fair Lawn, New Jersey 07410
Attn.: President
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Specific Performance; Severability. It is specifically understood and
agreed that any breach of the provisions of this Agreement including, without
limitation, Paragraph 5 hereof by the Executive is likely to result in
irreparable injury to the Company and its subsidiaries and affiliates, that the
remedy at law alone will be inadequate remedy for such breach and that, in
addition to any other remedy it may have, the Company shall be entitled to
enforce the specific performance of this Agreement by the Executive and to seek
both temporary and permanent injunctive relief (to the extent permitted by law),
without the necessity of proving actual damages. In case any of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, any such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this unenforceable provision had been limited or modified (consistent with its
general intent) to the extent necessary to make it valid, legal and enforceable,
or if it shall not be possible to so limit or modify such invalid, illegal or
unenforceable provision or part of a provision, this Agreement shall be
construed as if such invalid, illegal or unenforceable provision or part of a
provision had never been contained in this Agreement.
11. Miscellaneous. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Delaware (without regard to principles of
conflicts of laws).
12. Validity. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect. The
invalid portion of this Agreement, if any, shall be modified by any court having
jurisdiction to the extent necessary to render such portion enforceable.
12
<PAGE>
13. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
14. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis calculated at his
final base compensation rate for requested litigation and regulatory cooperation
that occurs after his termination of employment, and reimburse Executive for all
costs and expenses incurred in connection with his performance under this
Paragraph 14, including, but not limited to, reasonable attorneys' fees and
costs.
15. No Requirement of Mitigation. After the termination of this Agreement,
Executive shall not be required to seek other employment, nor shall Executive be
required to offset the benefits payable by the Company under this Agreement
against his other compensation or income. The Company shall not offset
Executive's benefits under this Agreement by any claims which it may have
against the Executive.
16. Assignability. This Agreement shall not be assigned by the Executive and
shall inure to the benefit of successors to the Company by way of merger,
consolidation or transfer of all or substantially all of the assets of the
Company. The Company will use its best efforts to require any successor to
expressly assume and agree to perform this Agreement in the same manner that the
Company would be required to perform if no such succession had taken place.
17. Dispute Resolution. In the event of a dispute between the parties
concerning their respective rights and obligations under this Agreement or under
any stock option agreement to which the Executive and the Company are party that
the parties are unable to resolve amicably between themselves within sixty (60)
days of proper notice from one party to another, such dispute shall be settled
by arbitration in the State of New Jersey in an expedited manner in accordance
with the Employment Dispute Rules of the American Arbitration Association by a
duly registered arbitrator to be selected jointly by the parties. The decision
of the arbitrator shall be final and binding upon the parties. Notwithstanding
anything to the contrary herein, the provisions of this Section 17 shall not
apply to any equitable remedies to which any party may be entitled to hereunder.
13
<PAGE>
18. Prior Agreements. By execution of this Agreement, the parties hereby
terminate the prior agreement between Executive and the Company dated as of
December 4, 1996 with regard to employment or severance arrangements and
acknowledge and agree that no provisions of such prior agreement shall survive
the execution and delivery of this Agreement.
14
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
BORON, LEPORE & ASSOCIATES, INC.
By: /s/ Martin J. Veilleux
-----------------------------
Its: Executive Vice President
----------------------------
/s/ Patrick G. LePore
--------------------------------
Patrick G. LePore
15
<PAGE>
Exhibit 10.7
------------
EMPLOYMENT AGREEMENT
--------------------
Amended and Restated Employment Agreement, dated the __ day of June, 1999
by and between Timothy J. McIntyre (the "Employee") and Boron, LePore &
Associates, Inc., a Delaware corporation (the "Company"). In consideration of
the mutual promises and covenants herein contained, the parties hereto agree as
follows:
1. Employment.
----------
Subject to the provisions of Section 6, the Company hereby employs the
Employee and the Employee accepts such employment upon the terms and conditions
hereinafter set forth.
2. Term of Employment.
------------------
Subject to the provisions of Section 6, the term of the Employee's
employment pursuant to this Agreement shall commence on and as of the date
hereof (the "Effective Date") and shall terminate on the second anniversary of
the Effective Date; provided, however, that the term of the Employee's
employment pursuant to this Agreement shall be extended automatically for
successive one-year periods ending on the relevant anniversary of the Effective
Date unless either party gives the other notice no later than 270 days prior to
the scheduled termination date (i.e., the second anniversary of the Effective
Date or any later anniversary) of his or its determination not to extend the
term of the Employee's employment pursuant to this Agreement, whereupon such
term of employment shall terminate as of such anniversary date; and provided
further, however, that in the event a Change of Control (as defined in Section
10 hereof) shall occur, then (subject to Sections 6 and 10) such term of
employment shall not expire by reason of non-extension by the Company pursuant
to this Section 2 prior to the date which is 18 months following such Change of
Control. The period during which the Employee serves as an employee of the
Company in accordance with and subject to the provisions of this Agreement is
referred to in this Agreement as the "Term of Employment."
3. Duties.
------
During the Term of Employment, the Employee (a) shall serve as an
employee of the Company with the title of Corporate Executive Vice President,
reporting to the Chief Executive Officer of the Company, and shall perform such
duties and have such responsibilities and shall have such additional or
alternative duties as may be reasonably determined by the Chief Executive
Officer of the Company, consistent with the general area of the Employee's
experience and skills; (b) upon the request of the Chief Executive Officer of
the Company, shall serve as an officer and/or director of the Company's
subsidiaries; and (c) shall render all services reasonably incident to the
foregoing. The Employee hereby accepts such employment, agrees to serve the
Company in the capacities indicated, and agrees to use his best efforts in, and
shall devote his full working time, attention, skill and energies to, the
<PAGE>
advancement of the interests of the Company and its subsidiaries and the
performance of his duties and responsibilities hereunder.
4. Salary and Bonus.
----------------
(a) During the Term of Employment, the Company shall pay the Employee
a salary at the annual rate of $250,000 per annum (the "Base Salary"). Such
Base Salary shall be subject to withholding under applicable law, shall be pro
rated for partial years and shall be payable in periodic installments not less
frequently than monthly in accordance with the Company's usual practice for
executives of the Company as in effect from time to time. The Board of
Directors or Compensation Committee of the Company shall review the Base Salary
of the Employee at least annually, but such salary shall not be set at a rate
lower than $250,000 per annum.
(b) Bonus. During the Term of Employment, the Employee shall be
-----
entitled to participate in such executive bonus program as may be established by
the Company and then in effect, subject to and in accordance with the terms
thereof, provided that the Employee's target bonus for each year, if any, shall
be established and approved by the Compensation Committee of the Company by
March 1 of each fiscal year following 1999.
5. Benefits.
--------
(a) During the Term of Employment, the Employee shall be entitled to
participate in any and all medical, pension, dental and life insurance plans,
disability income plans, stock incentive plans, retirement arrangements and
other employment benefits as in effect from time to time for executive officers
of the Company generally. Such participation shall be subject to (i) the terms
of the applicable plan documents (including, as applicable, provisions granting
discretion to the Board of Directors of the Company or any administrative or
other committee provided for therein or contemplated thereby); and (ii)
generally applicable policies of the Company.
(b) Notwithstanding the foregoing, during the Term of Employment the
Company shall provide the Employee with or reimburse the Employee for a Company
automobile and club dues in accordance with the Company's practices for
executive officers, as in effect from time to time.
(c) The Company shall promptly reimburse the Employee for all
reasonable business expenses incurred by the Employee during the Term of
Employment in accordance with the Company's practices for executive officers of
the Company with a similar level of responsibility, as in effect from time to
time.
(d) During the Term of Employment, the Employee shall receive paid
vacation annually in accordance with the Company's practices for executive
officers, as in effect from time to time, but in any event not less than four
(4) weeks per calendar year.
2
<PAGE>
(e) The Company will purchase on behalf of the Employee a term life
insurance policy providing a death benefit of $1,000,000 in the event of the
Employee's death and naming such person or persons as the Employee may designate
as loss payee or payees. The obligation to purchase and the maintenance of such
life insurance policy during the Term of Employment, however, shall be
contingent upon (i) the Employee's satisfactory completion of all requirements
in connection therewith including, without limitation, a physical examination,
and (ii) the annual premium payments for such policy not exceeding $5,000;
provided, however, that if such amount is not adequate to cover a policy with a
- -------- -------
death benefit of $1,000,000, the Company shall purchase a term life insurance
policy providing for the maximum death benefit payable for an annual premium of
$5,000.
(f) Compliance with the provisions of Section 4(b) or Section 5 shall
in no way create or be deemed to create any obligation, express or implied, on
the part of the Company or any of its affiliates with respect to the
continuation of any particular benefit or other plan or arrangement maintained
by them or their subsidiaries as of or prior to the date hereof or the creation
and maintenance of any particular benefit or other plan or arrangement at any
time after the date hereof, except as provided in Sections 5(b), 5(c), 5(d) and
5(e).
6. Termination of Employment of the Employee.
-----------------------------------------
Prior to the expiration of the Term of Employment as provided in
Section 2 hereof, this Agreement may or shall (as applicable) be terminated as
follows:
(a) At any time by the mutual consent of the Employee and the Company.
(b) At any time for "cause" by the Company upon written notice to the
Employee. For purposes of this Agreement, a termination shall be for
"cause" if:
(i) the Employee shall commit an act of fraud, embezzlement,
misappropriation or breach of fiduciary duty against the Company or
any of its subsidiaries, or shall be convicted by a court of competent
jurisdiction of, or shall plead guilty or nolo contendere to, any
felony or any crime involving moral turpitude; or
(ii) the Employee shall commit a breach of any of the covenants,
terms or provisions hereof, which breach has not been remedied within
thirty (30) days after delivery to the Employee by the Company of
written notice of the facts constituting the breach; or
(iii) the Employee shall have failed to comply with written
instructions from the Company's Chief Executive Officer, which are
reasonable and consistent with Section 3, or shall have substantially
failed to perform the Employee's duties hereunder for a period of
thirty (30) days after written notice from the Company.
3
<PAGE>
Upon termination for cause as provided in this Section 6(b), (A) all
obligations of the Company under this Agreement shall thereupon immediately
terminate other than any obligation of the Company with respect to earned
but unpaid Base Salary and benefits contemplated hereby to the extent then
accrued or vested, it being understood that upon any such termination the
Employee shall not be entitled to (1) receive any bonus or portion thereof
from the Company or any of its affiliates not then paid whether pursuant to
Section 4 or otherwise, or (2) any continuation of benefits except as may
be required by law, and (B) the Company shall have any and all rights and
remedies under this Agreement and applicable law; provided, however, that
termination of this Agreement by the Employee for Good Reason (as defined
in Section 10) within 18 months following a Change of Control shall not be
deemed grounds for termination pursuant to this Section 6(b).
(c) Upon the death of the Employee or upon the permanent disability
(as defined below) of the Employee continuing for a period in excess of one
hundred eighty (180) consecutive days. Upon any such termination of the
Employee's employment as provided in this Section 6(c), all obligations of
the Company under this Agreement shall thereupon immediately terminate
other than (i) any obligation of the Company with respect to earned but
unpaid Base Salary and benefits contemplated hereby to the extent accrued
or vested through the date of termination; (ii) the obligation of the
Company to pay the Employee or his estate cash bonuses earned as of the
date of termination; and (iii) the obligation of the Company to pay the
Employee or his estate a pro rated portion of the Employee's target bonus
if the criteria for earning such bonus are achieved by a successor to the
Employee following the termination of the Employee pursuant to this Section
6(c). As used herein, the terms "permanent disability" or "permanently
disabled" shall mean the inability of the Employee, by reason of injury,
illness or other similar cause, to perform a major part of his duties and
responsibilities in connection with the conduct of the business and affairs
of the Company, as determined reasonably and in good faith by the Company.
(d) By the Employee on at least 60 days' prior written notice to the
Company. Upon termination by the Employee as provided in this Section
6(d), all obligations of the Company under this Agreement thereupon
immediately shall terminate other than any obligation of the Company with
respect to earned but unpaid Base Salary and benefits contemplated hereby
to the extent accrued or vested through the date of termination, it being
understood that in the event of such a termination the Employee shall not
be entitled to (i) receive any bonus from the Company or any of its
affiliates not then paid whether pursuant to Section 4 or otherwise with
respect to any period during or after the Term of Employment or (ii) any
continuation of benefits except to the extent required by law.
(e) At any time without "cause" (as defined in Section 6(b)) by the
Company upon written notice to the Employee. In the event of termination
of the Employee by the Company pursuant to this Section 6(e), the Company
shall continue to make Base
4
<PAGE>
Salary payments to the Employee in the manner contemplated by Section 4(a)
from the date of termination through the first anniversary of the date on
which such termination occurs, and the Company shall also remain obligated
to pay the full amount of the target bonus contemplated by Section 4(b) for
the year in which such termination occurs, whether or not such bonus is
earned or would otherwise have been paid, at the time it otherwise would
have paid such bonuses; subject, however, to the provisions of Section 10
in the event any such termination occurs within 18 months following any
Change of Control. Notwithstanding the foregoing, if the Employee's
employment terminates pursuant to Section 6(e) or 6(f) in the 18 months
following a Change of Control and at the time of such termination no target
bonus shall be in effect or such target bonus shall be lower than the
higher of the Employee's target bonuses (whether paid or not) for each of
the two most recent years, then in such circumstances the bonus payment of
the Employee's severance which is otherwise used to determine the amount
payable pursuant to this Agreement shall be the higher of the Employee's
target bonuses for the two most recent years and all amounts due shall be
paid promptly following such termination. Such payments of bonus and Base
Salary amounts contemplated by Section 6(e) or 6(f) are agreed by the
parties hereto to be in full satisfaction, compromise and release of any
claims arising out of the Employee's employment or termination thereof
pursuant to this Section 6(e) or Section 6(f). In any case the payment of
all such amounts under Sections 6(e) or 6(f) shall be contingent upon the
Employee's compliance with Section 8 below and the Employee's delivery of a
general release upon termination of employment covering all matters arising
under or connection with this Agreement. Such release shall be in a form
reasonably satisfactory to the Company, it being understood that no
severance benefits shall be provided unless and until the Employee
determines to execute and deliver such release.
(f) The Employee shall have the right to terminate his employment
hereunder (i) in the event of a material default by the Company in the
performance of its obligations hereunder, after the Employee has given
written notice to the Company specifying such default by the Company and
giving the Company a reasonable time, not less than 30 days, to conform its
performance to its obligations hereunder or (ii) without limitation of
clause (i), for Good Reason during the 18 months following any Change of
Control as contemplated by Section 10. The rights and obligations of the
parties shall be as set forth in Section 6(e) and Section 10, as
applicable, in the event of any such termination.
(g) In the event either party gives a notice of non-renewal to be
effective as of any anniversary hereof as contemplated by Section 2, then
all obligations of the parties hereunder shall terminate as of the end of
the Term of Employment except as contemplated by Sections 7, 8, 9, 11, 12,
13 and 14 hereof.
5
<PAGE>
7. Confidentiality; Proprietary Rights.
-----------------------------------
(a) In the course of performing services hereunder, on behalf of the
Company (for purposes of this Section 7, including all predecessors of the
Company) and its affiliates, the Employee has had and from time to time will
have access to confidential records, data, customer lists, trade secrets and
other confidential information owned or used in the course of business by the
Company and its affiliates (the "Confidential Information"). The Employee
agrees (i) to hold the Confidential Information in strict confidence; (ii) not
to disclose the Confidential Information to any person (other than in the
regular business of the Company or its affiliates); and (iii) not to use,
directly or indirectly, any of the Confidential Information for any competitive
or commercial purpose other than on behalf of the Company and its affiliates;
provided, however, that the limitations set forth above shall not apply to any
Confidential Information which (A) is then generally known to the public; (B)
became or becomes generally known to the public through no fault of the
Employee; or (C) is disclosed in accordance with an order of a court of
competent jurisdiction or applicable law. Upon the termination of the
Employee's employment with the Company for any reason, all Confidential
Information (including, without limitation, all data, memoranda, customer lists,
notes, programs and other papers and items, and reproductions thereof relating
to the foregoing matters) in the Employee's possession or control, shall be
immediately returned to the Company or the applicable affiliate and remain in
its or their possession.
(b) The Employee recognizes that the Company and its affiliates
possess a proprietary interest in all of the information described in Section
7(a), subject to the provisions and limitations thereof, and have the exclusive
right and privilege to use, protect by copyright, patent or trademark, or
otherwise exploit the processes, ideas and concepts described therein to the
exclusion of the Employee, except as otherwise agreed between the Company and
the Employee in writing. The Employee expressly agrees that any products,
inventions, discoveries or improvements made by the Employee or his agents or
affiliates in the course of the Employee's employment, including any of the
foregoing which is based on or arises out of the information described in
Section 7(a), shall be the property of and inure to the exclusive benefit of the
Company. The Employee further agrees that any and all products, inventions,
discoveries or improvements developed by the Employee (whether or not able to be
protected by copyright, patent or trademark) during the course of his
employment, or involving the use of the time, materials or other resources of
the Company or any of its affiliates, shall be promptly disclosed to the Company
and shall become the exclusive property of the Company, and the Employee shall
execute and deliver any and all documents necessary or appropriate to implement
the foregoing.
(c) The Employee agrees, while he is employed by the Company, to offer
or otherwise make known or available to it, as directed by the Chief Executive
Officer of the Company and without additional compensation or consideration, any
business prospects, contacts or other business opportunities that he may
discover, find, develop or otherwise have available to him in any field in which
the Company or its affiliates are engaged.
6
<PAGE>
8. Non-Competition.
---------------
In view of the fact that any activity of the Employee in violation of
the terms hereof would deprive the Company and its subsidiaries, if any, of the
benefits of their bargain under this Agreement, as a material inducement to and
a condition precedent of the Company's payment obligations hereunder and the
other covenants set forth herein, and to preserve the goodwill associated with
the Boron, LePore business, the Employee hereby agrees that during the term of
the Employee's employment with the Company and its subsidiaries and thereafter
for a period of one year following the termination of the Employee's employment
with the Company, regardless of the circumstances of termination, he will not,
without the express written consent of the Company, directly or indirectly,
anywhere in the United States, engage in any activity which is, or participate
or invest in, or provide or facilitate the provision of financing to, or assist
(whether as owner, part-owner, shareholder, partner, director, officer, trustee,
employee, agent or consultant, or in any other capacity), any business,
organization or person other than the Company (or any affiliate of the Company),
whose business, activities, products or services are competitive with any of the
business, activities, products or services conducted or offered by the Company
and its subsidiaries at the time of the termination of Employee's employment
with the Company, which business, activities, products and services shall
include in any event peer influence meetings, telemarketing activities, contract
sales, field force logistics services and outsource marketing involving
pharmaceutical and healthcare companies. Without implied limitation, the
foregoing covenant shall include hiring or engaging or attempting to hire or
engage for or on behalf of himself or any such competitor, any officer or
employee of the Company or any of its direct and/or indirect subsidiaries,
encouraging for or on behalf of himself or any such competitor, any such officer
or employee to terminate his or her relationship or employment with the Company
or any of its direct or indirect subsidiaries, soliciting for or on behalf of
himself or any such competitor any client of the Company or any of its direct or
indirect subsidiaries and diverting to any person (as defined in Section 14) any
client or business opportunity of the Company or any of any of its direct or
indirect subsidiaries.
Notwithstanding anything herein to the contrary, the Employee may make
passive investments in any enterprise the shares of which are publicly traded if
such investment constitutes less than five (5%) percent of the equity of such
enterprise.
The Employee acknowledges that neither the Employee nor any business entity
controlled by him is a party to any contract, commitment, arrangement or
agreement which could, following the date hereof, restrain or restrict the
Company or any subsidiary or affiliate of the Company from carrying on its
business or restrain or restrict the Employee from performing his obligations
under this Agreement and as of the date of this Agreement the Employee has no
business interests in or relating to the pharmaceutical industry whatsoever
other than his interest in the Company, or interests in public companies of less
than five (5%) percent. The Employee further acknowledges that he will not
bring to the premises of the Company any copies or other tangible embodiments of
non-public information belonging to or obtained from any previous employment or
other party.
7
<PAGE>
9. Specific Performance; Severability.
----------------------------------
It is specifically understood and agreed that any breach of the
provisions of Section 7 or 8 hereof by the Employee is likely to result in
irreparable injury to the Company and/or its affiliates, that the remedy at law
alone will be an inadequate remedy for such breach and that, in addition to any
other remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Employee and to seek both temporary and
permanent injunctive relief (to the extent permitted by law), without the
necessity of posting a bond or proving actual damages. In case any of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, any such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had been limited or modified (consistent with its
general intent) to the extent necessary to make it valid, legal and enforceable,
or if it shall not be possible to so limit or modify such invalid, illegal or
unenforceable provision or part of a provision, this Agreement shall be
construed as if such invalid, illegal or unenforceable provision or part of a
provision had never been contained in this Agreement.
10. Assignability; Change of Control.
--------------------------------
This Agreement shall inure to the benefit of, and be binding upon and
assignable to, successors of the Company by way of merger, reorganization,
consolidation or other sale. In addition, if the Company sells all or
substantially all of its assets, the Company will cause this Agreement to be
assumed by the buyer and if the buyer does not assume this Agreement, such non-
assumption shall be treated as a material breach under Section 6(f). This
Agreement may not be assigned by the Employee. Notwithstanding the foregoing or
any other provision of this Agreement to the contrary, in the event of (a) the
sale of all or substantially all of the assets of the Company and its
Subsidiaries to another person or entity; (b) a merger, reorganization or
consolidation in which the holders of the Company's outstanding voting power
immediately prior to such transaction do not own a majority of the outstanding
voting power of the surviving or resulting entity immediately upon completion of
such transaction; (c) the sale of all or substantially all of the outstanding
stock of the Company to an unrelated person or entity in which the holders of
the Company's outstanding voting power immediately prior to such transaction do
not own a majority of the outstanding voting power of the surviving or resulting
entity immediately upon completion of such transaction; or (d) any other
transaction or series of transactions where the owners of the Company's
outstanding voting power immediately prior to such transaction do not own a
majority of the outstanding voting power of the surviving or resulting entity
immediately upon completion of such transaction (collectively, a "Change of
Control"), if, and within the 18 months thereafter, the Company terminates the
Employee's employment pursuant to Section 6(e) or the Employee terminates his
employment pursuant to Section 6(f), including for Good Reason (as hereinafter
defined), the Employee shall receive severance of two years Base Salary rather
than one year, payable through the second anniversary of such termination, in
addition to two times the bonus payment contemplated by Section 6(e). For
purposes of this Agreement, "Good Reason" shall mean the
8
<PAGE>
occurrence of any of the following events: (A) a substantial adverse change in
the nature or scope of the Employee's responsibilities, authorities, title,
powers, functions, or duties; (B) a reduction in the Employee's annual base
salary except for across-the-board salary reductions similarly affecting all or
substantially all management employees; or (C) the relocation of the offices at
which the grantee is principally employed to a location more than fifty (50)
miles from Fair Lawn, New Jersey.
11. Notices.
-------
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if faxed (with
transmission acknowledgment received), delivered personally or mailed by
certified or registered mail (return receipt requested) as follows:
To the Company: Boron, LePore & Associates, Inc.
17-17 Route 208 North
Fair Lawn, New Jersey 07410
Attention: Patrick G. LePore, President and CEO
To the Employee: Timothy J. McIntyre
c/o Boron, LePore & Associates, Inc.
17-17 Route 208 North
Fair Lawn, New Jersey 07410
With a copy to: Bruno W. Tablis, Jr., Esq
Law Offices of Frank, Miller, Melamed & Tabis, P.C.
200 South Wacker Drive, Suite 420
Chicago, Illinois 60606
or to such other address or fax number of which any party may notify the other
parties as provided above. Notices shall be effective as of the date of such
delivery, mailing or fax.
12. Dispute Resolution. In the event of a dispute between the parties
------------------
concerning their respective rights and obligations under this Agreement or under
any stock option agreement to which the Employee and the Company are party, that
the parties are unable to resolve amicably between themselves within sixty (60)
days of proper notice from one party to another, such dispute shall be settled
by arbitration in the State of New Jersey in an expedited manner in accordance
with the Commercial Rules of the American Arbitration Association by a duly
registered arbitrator to be selected jointly by the parties. The decision of
the arbitrator shall be final and binding upon the parties. Notwithstanding
anything to the contrary herein, the provisions of this Section 12 shall not
apply to any equitable remedies to which any party may be entitled to hereunder.
13. Litigation and Regulatory Cooperation.
-------------------------------------
9
<PAGE>
During and after Employee's employment, the Employee shall reasonably
cooperate with the Company in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future against or on
behalf of the Company which relate to events or occurrences that transpired
while the Employee was employed by the Company; provided, however, that such
cooperation shall not materially and adversely affect the Employee or expose the
Employee to an increased probability of civil or criminal litigation. The
Employee's cooperation in connection with such claims or actions shall include,
but not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of the Company at mutually
convenient times. During and after the Employee's employment, the Employee also
shall cooperate fully with the Company in connection with any investigation or
review of any federal, state or local regulatory authority as any such
investigation or review relates to events or occurrences that transpired while
the Employee was employed by the Company. The Company shall also provide the
Employee with compensation on an hourly basis calculated at his final base
compensation rate (calculated by taking the final base compensation rate divided
by 48 weeks of 40 hours each) for requested litigation and regulatory
cooperation that occurs after his termination of employment, and reimburse the
Employee for all costs and expenses incurred in connection with his performance
under this Paragraph 13, including, but not limited to, reasonable attorneys'
fees and costs.
14. Miscellaneous.
-------------
This Agreement shall be governed by and construed under the laws of
the State of New Jersey, and shall not be amended, modified or discharged in
whole or in part except by an agreement in writing signed by both of the parties
hereto. The failure of either of the parties to require the performance of a
term or obligation or to exercise any right under this Agreement or the waiver
of any breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. This Agreement supersedes,
terminates and in all respects replaces all prior understandings and agreements,
written or oral, between the parties relating to the subject matter hereof,
including, without limitation, the Employee's employment contract dated June 9,
1997 (but not including any Stock Option Agreements between the Company and the
Employee). For purposes of this Agreement, the term "person" means an
individual, corporation, partnership, association, trust or any unincorporated
organization; a "subsidiary" of a person means any corporation more than 50
percent of whose outstanding voting securities, or any partnership, joint
venture or other entity more than 50 percent of whose total equity interest, is
directly or indirectly owned by such person; and an "affiliate" of a person
shall mean, with respect to a person or entity, any person or entity which
directly or indirectly controls, is controlled by, or is under common control
with such person or entity.
10
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first set forth above.
BORON, LePORE & ASSOCIATES, INC.
By: /s/ Patrick G. LePore
--------------------------------
Patrick G. LePore, President
/s/ Timothy J. McIntyre
-----------------------------------
TIMOTHY J. McINTYRE
11
<PAGE>
Exhibit 10.11
-------------
EMPLOYMENT AGREEMENT
--------------------
Employment Agreement, dated the 1st day of March, 1999 by and between
Martin J. Veilleux (the "Employee") and Boron, LePore & Associates, Inc., a
Delaware corporation (the "Company"). In consideration of the mutual promises
and covenants herein contained, the parties hereto agree as follows:
1. Employment.
----------
Subject to the provisions of Section 6, the Company hereby employs the
Employee and the Employee accepts such employment upon the terms and conditions
hereinafter set forth.
2. Term of Employment.
------------------
Subject to the provisions of Section 6, the term of the Employee's
employment pursuant to this Agreement shall commence on and as of the date
hereof (the "Effective Date") and shall terminate on the second anniversary of
the Effective Date; provided, however, that the term of the Employee's
employment pursuant to this Agreement shall be extended automatically for
successive one-year periods ending on the relevant anniversary of the Effective
Date unless either party gives the other notice no later than 270 days prior to
the scheduled termination date (i.e., the second anniversary of the Effective
Date or any later anniversary) of his or its determination not to extend the
term of the Employee's employment pursuant to this Agreement, whereupon such
term of employment shall terminate as of such anniversary date; and provided
further, however, that in the event a Change of Control (as defined in Section
10 hereof) shall occur, then (subject to Sections 6 and 10) such term of
employment shall not expire by reason of non-extension by the Company pursuant
to this Section 2 prior to the date which is 18 months following such Change of
Control. The period during which the Employee serves as an employee of the
Company in accordance with and subject to the provisions of this Agreement is
referred to in this Agreement as the "Term of Employment."
3. Duties.
------
During the Term of Employment, the Employee (a) shall serve as an
employee of the Company with the title of Corporate Executive Vice President,
reporting to the Chief Executive Officer of the Company, and shall perform such
duties and have such responsibilities and shall have such additional or
alternative duties as may be reasonably determined by the Chief Executive
Officer of the Company, consistent with the general area of the Employee's
experience and skills; (b) upon the request of the Chief Executive Officer of
the Company, shall serve as an officer and/or director of the Company's
subsidiaries; and (c) shall render all services reasonably incident to the
foregoing. The Employee hereby accepts such employment, agrees to serve the
Company in the capacities indicated, and agrees to use his best efforts in, and
shall devote his full working time, attention, skill and energies to, the
<PAGE>
advancement of the interests of the Company and its subsidiaries and the
performance of his duties and responsibilities hereunder.
4. Salary and Bonus.
----------------
(a) During the Term of Employment, the Company shall pay the Employee
a salary at the annual rate of $225,000 per annum (the "Base Salary"). Such
Base Salary shall be subject to withholding under applicable law, shall be pro
rated for partial years and shall be payable in periodic installments not less
frequently than monthly in accordance with the Company's usual practice for
executives of the Company as in effect from time to time. The Board of
Directors or Compensation Committee of the Company shall review the Base Salary
of the Employee at least annually, but such salary shall not be set at a rate
lower than $225,000 per annum.
(b) Bonus. During the Term of Employment, the Employee shall be
-----
entitled to participate in such executive bonus program as may be established by
the Company and then in effect, subject to and in accordance with the terms
thereof, provided that the Employee's target bonus for each year, if any, shall
be established and approved by the Compensation Committee of the Company by
March 1 of each fiscal year following 1999.
5. Benefits.
--------
(a) During the Term of Employment, the Employee shall be entitled to
participate in any and all medical, pension, dental and life insurance plans,
disability income plans, stock incentive plans, retirement arrangements and
other employment benefits as in effect from time to time for executive officers
of the Company generally. Such participation shall be subject to (i) the terms
of the applicable plan documents (including, as applicable, provisions granting
discretion to the Board of Directors of the Company or any administrative or
other committee provided for therein or contemplated thereby); and (ii)
generally applicable policies of the Company.
(b) Notwithstanding the foregoing, during the Term of Employment the
Company shall provide the Employee with or reimburse the Employee for a Company
automobile in accordance with the Company's practices for executive officers, as
in effect from time to time.
(c) The Company shall promptly reimburse the Employee for all
reasonable business expenses incurred by the Employee during the Term of
Employment in accordance with the Company's practices for executive officers of
the Company with a similar level of responsibility, as in effect from time to
time.
(d) During the Term of Employment, the Employee shall receive paid
vacation annually in accordance with the Company's practices for executive
officers, as in effect from time to time, but in any event not less than four
(4) weeks per calendar year.
2
<PAGE>
(e) The Company will purchase on behalf of the Employee a term life
insurance policy providing a death benefit of $1,000,000 in the event of the
Employee's death and naming such person or persons as the Employee may designate
as loss payee or payees. The obligation to purchase and the maintenance of such
life insurance policy during the Term of Employment, however, shall be
contingent upon (i) the Employee's satisfactory completion of all requirements
in connection therewith including, without limitation, a physical examination,
and (ii) the annual premium payments for such policy not exceeding $5,000;
provided, however, that if such amount is not adequate to cover a policy with a
- -------- -------
death benefit of $1,000,000, the Company shall purchase a term life insurance
policy providing for the maximum death benefit payable for an annual premium of
$5,000.
(f) Compliance with the provisions of Section 4(b) or Section 5 shall
in no way create or be deemed to create any obligation, express or implied, on
the part of the Company or any of its affiliates with respect to the
continuation of any particular benefit or other plan or arrangement maintained
by them or their subsidiaries as of or prior to the date hereof or the creation
and maintenance of any particular benefit or other plan or arrangement at any
time after the date hereof, except as provided in Sections 5(b), 5(c), 5(d) and
5(e).
6. Termination of Employment of the Employee.
-----------------------------------------
Prior to the expiration of the Term of Employment as provided in
Section 2 hereof, this Agreement may or shall (as applicable) be terminated as
follows:
(a) At any time by the mutual consent of the Employee and the
Company.
(b) At any time for "cause" by the Company upon written notice to the
Employee. For purposes of this Agreement, a termination shall be for
"cause" if:
(i) the Employee shall commit an act of fraud, embezzlement,
misappropriation or breach of fiduciary duty against the Company or
any of its subsidiaries, or shall be convicted by a court of competent
jurisdiction of, or shall plead guilty or nolo contendere to, any
felony or any crime involving moral turpitude; or
(ii) the Employee shall commit a breach of any of the covenants,
terms or provisions hereof, which breach has not been remedied within
thirty (30) days after delivery to the Employee by the Company of
written notice of the facts constituting the breach; or
(iii) the Employee shall have failed to comply with written
instructions from the Company's Chief Executive Officer, which are
reasonable and consistent with Section 3, or shall have substantially
failed to perform the Employee's duties hereunder for a period of
thirty (30) days after written notice from the Company.
3
<PAGE>
Upon termination for cause as provided in this Section 6(b), (A) all
obligations of the Company under this Agreement shall thereupon immediately
terminate other than any obligation of the Company with respect to earned
but unpaid Base Salary and benefits contemplated hereby to the extent then
accrued or vested, it being understood that upon any such termination the
Employee shall not be entitled to (1) receive any bonus or portion thereof
from the Company or any of its affiliates not then paid whether pursuant to
Section 4 or otherwise, or (2) any continuation of benefits except as may
be required by law, and (B) the Company shall have any and all rights and
remedies under this Agreement and applicable law; provided, however, that
termination of this Agreement by the Employee for Good Reason (as defined
in Section 10) within 18 months following a Change of Control shall not be
deemed grounds for termination pursuant to this Section 6(b).
(c) Upon the death of the Employee or upon the permanent disability
(as defined below) of the Employee continuing for a period in excess of one
hundred eighty (180) consecutive days. Upon any such termination of the
Employee's employment as provided in this Section 6(c), all obligations of
the Company under this Agreement shall thereupon immediately terminate
other than (i) any obligation of the Company with respect to earned but
unpaid Base Salary and benefits contemplated hereby to the extent accrued
or vested through the date of termination; (ii) the obligation of the
Company to pay the Employee or his estate cash bonuses earned as of the
date of termination; and (iii) the obligation of the Company to pay the
Employee or his estate a pro rated portion of the Employee's target bonus
if the criteria for earning such bonus are achieved by a successor to the
Employee following the termination of the Employee pursuant to this Section
6(c). As used herein, the terms "permanent disability" or "permanently
disabled" shall mean the inability of the Employee, by reason of injury,
illness or other similar cause, to perform a major part of his duties and
responsibilities in connection with the conduct of the business and affairs
of the Company, as determined reasonably and in good faith by the Company.
(d) By the Employee on at least 60 days' prior written notice to the
Company. Upon termination by the Employee as provided in this Section
6(d), all obligations of the Company under this Agreement thereupon
immediately shall terminate other than any obligation of the Company with
respect to earned but unpaid Base Salary and benefits contemplated hereby
to the extent accrued or vested through the date of termination, it being
understood that in the event of such a termination the Employee shall not
be entitled to (i) receive any bonus from the Company or any of its
affiliates not then paid whether pursuant to Section 4 or otherwise with
respect to any period during or after the Term of Employment or (ii) any
continuation of benefits except to the extent required by law.
(e) At any time without "cause" (as defined in Section 6(b)) by the
Company upon written notice to the Employee. In the event of termination
of the Employee by the Company pursuant to this Section 6(e), the Company
shall continue to make Base
4
<PAGE>
Salary payments to the Employee in the manner contemplated by Section 4(a)
from the date of termination through the first anniversary of the date on
which such termination occurs, and the Company shall also remain obligated
to pay the full amount of the target bonus contemplated by Section 4(b) for
the year in which such termination occurs, whether or not such bonus is
earned or would otherwise have been paid, at the time it otherwise would
have paid such bonuses; subject, however, to the provisions of Section 10
in the event any such termination occurs within 18 months following any
Change of Control. Notwithstanding the foregoing, if the Employee's
employment terminates pursuant to Section 6(e) or 6(f) in the 18 months
following a Change of Control and at the time of such termination no target
bonus shall be in effect or such target bonus shall be lower than the
higher of the Employee's target bonuses (whether paid or not) for each of
the two most recent years, then in such circumstances the bonus payment of
the Employee's severance which is otherwise used to determine the amount
payable pursuant to this Agreement shall be the higher of the Employee's
target bonuses for the two most recent years and all amounts due shall be
paid promptly following such termination. Such payments of bonus and Base
Salary amounts contemplated by Section 6(e) or 6(f) are agreed by the
parties hereto to be in full satisfaction, compromise and release of any
claims arising out of the Employee's employment or termination thereof
pursuant to this Section 6(e) or Section 6(f). In any case the payment of
all such amounts under Sections 6(e) or 6(f) shall be contingent upon the
Employee's compliance with Section 8 below and the Employee's delivery of a
general release upon termination of employment covering all matters arising
under or connection with this Agreement. Such release shall be in a form
reasonably satisfactory to the Company, it being understood that no
severance benefits shall be provided unless and until the Employee
determines to execute and deliver such release.
(f) The Employee shall have the right to terminate his employment
hereunder (i) in the event of a material default by the Company in the
performance of its obligations hereunder, after the Employee has given
written notice to the Company specifying such default by the Company and
giving the Company a reasonable time, not less than 30 days, to conform its
performance to its obligations hereunder or (ii) without limitation of
clause (i), for Good Reason during the 18 months following any Change of
Control as contemplated by Section 10. The rights and obligations of the
parties shall be as set forth in Section 6(e) and Section 10, as
applicable, in the event of any such termination.
(g) In the event either party gives a notice of non-renewal to be
effective as of any anniversary hereof as contemplated by Section 2, then
all obligations of the parties hereunder shall terminate as of the end of
the Term of Employment except as contemplated by Sections 7, 8, 9, 11, 12,
13 and 14 hereof.
5
<PAGE>
7. Confidentiality; Proprietary Rights.
-----------------------------------
(a) In the course of performing services hereunder, on behalf of the
Company (for purposes of this Section 7, including all predecessors of the
Company) and its affiliates, the Employee has had and from time to time will
have access to confidential records, data, customer lists, trade secrets and
other confidential information owned or used in the course of business by the
Company and its affiliates (the "Confidential Information"). The Employee
agrees (i) to hold the Confidential Information in strict confidence; (ii) not
to disclose the Confidential Information to any person (other than in the
regular business of the Company or its affiliates); and (iii) not to use,
directly or indirectly, any of the Confidential Information for any competitive
or commercial purpose other than on behalf of the Company and its affiliates;
provided, however, that the limitations set forth above shall not apply to any
Confidential Information which (A) is then generally known to the public; (B)
became or becomes generally known to the public through no fault of the
Employee; or (C) is disclosed in accordance with an order of a court of
competent jurisdiction or applicable law. Upon the termination of the
Employee's employment with the Company for any reason, all Confidential
Information (including, without limitation, all data, memoranda, customer lists,
notes, programs and other papers and items, and reproductions thereof relating
to the foregoing matters) in the Employee's possession or control, shall be
immediately returned to the Company or the applicable affiliate and remain in
its or their possession.
(b) The Employee recognizes that the Company and its affiliates
possess a proprietary interest in all of the information described in Section
7(a), subject to the provisions and limitations thereof, and have the exclusive
right and privilege to use, protect by copyright, patent or trademark, or
otherwise exploit the processes, ideas and concepts described therein to the
exclusion of the Employee, except as otherwise agreed between the Company and
the Employee in writing. The Employee expressly agrees that any products,
inventions, discoveries or improvements made by the Employee or his agents or
affiliates in the course of the Employee's employment, including any of the
foregoing which is based on or arises out of the information described in
Section 7(a), shall be the property of and inure to the exclusive benefit of the
Company. The Employee further agrees that any and all products, inventions,
discoveries or improvements developed by the Employee (whether or not able to be
protected by copyright, patent or trademark) during the course of his
employment, or involving the use of the time, materials or other resources of
the Company or any of its affiliates, shall be promptly disclosed to the Company
and shall become the exclusive property of the Company, and the Employee shall
execute and deliver any and all documents necessary or appropriate to implement
the foregoing.
(c) The Employee agrees, while he is employed by the Company, to offer
or otherwise make known or available to it, as directed by the Chief Executive
Officer of the Company and without additional compensation or consideration, any
business prospects, contacts or other business opportunities that he may
discover, find, develop or otherwise have available to him in any field in which
the Company or its affiliates are engaged.
6
<PAGE>
8. Non-Competition.
---------------
In view of the fact that any activity of the Employee in violation of
the terms hereof would deprive the Company and its subsidiaries, if any, of the
benefits of their bargain under this Agreement, as a material inducement to and
a condition precedent of the Company's payment obligations hereunder and the
other covenants set forth herein, and to preserve the goodwill associated with
the Boron, LePore business, the Employee hereby agrees that during the term of
the Employee's employment with the Company and its subsidiaries and thereafter
for a period of one year following the termination of the Employee's employment
with the Company, regardless of the circumstances of termination, he will not,
without the express written consent of the Company, directly or indirectly,
anywhere in the United States, engage in any activity which is, or participate
or invest in, or provide or facilitate the provision of financing to, or assist
(whether as owner, part-owner, shareholder, partner, director, officer, trustee,
employee, agent or consultant, or in any other capacity), any business,
organization or person other than the Company (or any affiliate of the Company),
whose business, activities, products or services are competitive with any of the
business, activities, products or services conducted or offered by the Company
and its subsidiaries at the time of the termination of Employee's employment
with the Company, which business, activities, products and services shall
include in any event peer influence meetings, telemarketing activities, contract
sales, field force logistics services and outsource marketing involving
pharmaceutical and healthcare companies. Without implied limitation, the
foregoing covenant shall include hiring or engaging or attempting to hire or
engage for or on behalf of himself or any such competitor, any officer or
employee of the Company or any of its direct and/or indirect subsidiaries,
encouraging for or on behalf of himself or any such competitor, any such officer
or employee to terminate his or her relationship or employment with the Company
or any of its direct or indirect subsidiaries, soliciting for or on behalf of
himself or any such competitor any client of the Company or any of its direct or
indirect subsidiaries and diverting to any person (as defined in Section 14) any
client or business opportunity of the Company or any of any of its direct or
indirect subsidiaries.
Notwithstanding anything herein to the contrary, the Employee may make
passive investments in any enterprise the shares of which are publicly traded if
such investment constitutes less than five (5%) percent of the equity of such
enterprise.
The Employee acknowledges that neither the Employee nor any business entity
controlled by him is a party to any contract, commitment, arrangement or
agreement which could, following the date hereof, restrain or restrict the
Company or any subsidiary or affiliate of the Company from carrying on its
business or restrain or restrict the Employee from performing his obligations
under this Agreement and as of the date of this Agreement the Employee has no
business interests in or relating to the pharmaceutical industry whatsoever
other than his interest in the Company, or interests in public companies of less
than five (5%) percent. The Employee further acknowledges that he will not
bring to the premises of the Company any copies or other tangible embodiments of
non-public information belonging to or obtained from any previous employment or
other party.
7
<PAGE>
9. Specific Performance; Severability.
----------------------------------
It is specifically understood and agreed that any breach of the
provisions of Section 7 or 8 hereof by the Employee is likely to result in
irreparable injury to the Company and/or its affiliates, that the remedy at law
alone will be an inadequate remedy for such breach and that, in addition to any
other remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Employee and to seek both temporary and
permanent injunctive relief (to the extent permitted by law), without the
necessity of posting a bond or proving actual damages. In case any of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, any such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had been limited or modified (consistent with its
general intent) to the extent necessary to make it valid, legal and enforceable,
or if it shall not be possible to so limit or modify such invalid, illegal or
unenforceable provision or part of a provision, this Agreement shall be
construed as if such invalid, illegal or unenforceable provision or part of a
provision had never been contained in this Agreement.
10. Assignability; Change of Control.
--------------------------------
This Agreement shall inure to the benefit of, and be binding upon and
assignable to, successors of the Company by way of merger, reorganization,
consolidation or other sale. In addition, if the Company sells all or
substantially all of its assets, the Company will cause this Agreement to be
assumed by the buyer and if the buyer does not assume this Agreement, such non-
assumption shall be treated as a material breach under Section 6(f). This
Agreement may not be assigned by the Employee. Notwithstanding the foregoing or
any other provision of this Agreement to the contrary, in the event of (a) the
sale of all or substantially all of the assets of the Company and its
Subsidiaries to another person or entity; (b) a merger, reorganization or
consolidation in which the holders of the Company's outstanding voting power
immediately prior to such transaction do not own a majority of the outstanding
voting power of the surviving or resulting entity immediately upon completion of
such transaction; (c) the sale of all or substantially all of the outstanding
stock of the Company to an unrelated person or entity in which the holders of
the Company's outstanding voting power immediately prior to such transaction do
not own a majority of the outstanding voting power of the surviving or resulting
entity immediately upon completion of such transaction; or (d) any other
transaction or series of transactions where the owners of the Company's
outstanding voting power immediately prior to such transaction do not own a
majority of the outstanding voting power of the surviving or resulting entity
immediately upon completion of such transaction (collectively, a "Change of
Control"), if, and within the 18 months thereafter, the Company terminates the
Employee's employment pursuant to Section 6(e) or the Employee terminates his
employment pursuant to Section 6(f), including for Good Reason (as hereinafter
defined), the Employee shall receive severance of two years Base Salary rather
than one year, payable through the second anniversary of such termination, in
addition to two times the bonus payment contemplated by Section 6(e). For
purposes of this Agreement, "Good Reason" shall mean the
8
<PAGE>
occurrence of any of the following events: (A) a substantial adverse change in
the nature or scope of the Employee's responsibilities, authorities, title,
powers, functions, or duties; (B) a reduction in the Employee's annual base
salary except for across-the-board salary reductions similarly affecting all or
substantially all management employees; or (C) the relocation of the offices at
which the grantee is principally employed to a location more than fifty (50)
miles from Fair Lawn, New Jersey.
11. Notices.
-------
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if faxed (with
transmission acknowledgment received), delivered personally or mailed by
certified or registered mail (return receipt requested) as follows:
To the Company: Boron, LePore & Associates, Inc.
17-17 Route 208 North
Fair Lawn, New Jersey 07410
Attention: Patrick G. LePore, President and CEO
To the Employee: Martin J. Veilleux
c/o Boron, LePore & Associates, Inc.
17-17 Route 208 North
Fair Lawn, New Jersey 07410
or to such other address or fax number of which any party may notify the other
parties as provided above. Notices shall be effective as of the date of such
delivery, mailing or fax.
12. Dispute Resolution. In the event of a dispute between the parties
------------------
concerning their respective rights and obligations under this Agreement or under
any stock option agreement to which the Employee and the Company are party, that
the parties are unable to resolve amicably between themselves within sixty (60)
days of proper notice from one party to another, such dispute shall be settled
by arbitration in the State of New Jersey in an expedited manner in accordance
with the Commercial Rules of the American Arbitration Association by a duly
registered arbitrator to be selected jointly by the parties. The decision of
the arbitrator shall be final and binding upon the parties. Notwithstanding
anything to the contrary herein, the provisions of this Section 12 shall not
apply to any equitable remedies to which any party may be entitled to hereunder.
13. Litigation and Regulatory Cooperation.
-------------------------------------
During and after Employee's employment, the Employee shall reasonably
cooperate with the Company in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future against or on
behalf of the Company which relate to events or occurrences that transpired
while the Employee was employed by the
9
<PAGE>
Company; provided, however, that such cooperation shall not materially and
adversely affect the Employee or expose the Employee to an increased probability
of civil or criminal litigation. The Employee's cooperation in connection with
such claims or actions shall include, but not be limited to, being available to
meet with counsel to prepare for discovery or trial and to act as a witness on
behalf of the Company at mutually convenient times. During and after the
Employee's employment, the Employee also shall cooperate fully with the Company
in connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while the Employee was employed by the Company. The
Company shall also provide the Employee with compensation on an hourly basis
calculated at his final base compensation rate (calculated by taking the final
base compensation rate divided by 48 weeks of 40 hours each) for requested
litigation and regulatory cooperation that occurs after his termination of
employment, and reimburse the Employee for all costs and expenses incurred in
connection with his performance under this Paragraph 13, including, but not
limited to, reasonable attorneys' fees and costs.
14. Miscellaneous.
-------------
This Agreement shall be governed by and construed under the laws of
the State of New Jersey, and shall not be amended, modified or discharged in
whole or in part except by an agreement in writing signed by both of the parties
hereto. The failure of either of the parties to require the performance of a
term or obligation or to exercise any right under this Agreement or the waiver
of any breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. This Agreement supersedes,
terminates and in all respects replaces all prior understandings and agreements,
written or oral, between the parties relating to the subject matter hereof,
including, without limitation, the Employee's Employment Agreement dated August
12, 1997 (but not including any Stock Option Agreements between the Company and
the Employee). For purposes of this Agreement, the term "person" means an
individual, corporation, partnership, association, trust or any unincorporated
organization; a "subsidiary" of a person means any corporation more than 50
percent of whose outstanding voting securities, or any partnership, joint
venture or other entity more than 50 percent of whose total equity interest, is
directly or indirectly owned by such person; and an "affiliate" of a person
shall mean, with respect to a person or entity, any person or entity which
directly or indirectly controls, is controlled by, or is under common control
with such person or entity.
10
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the date first set forth above.
BORON, LePORE & ASSOCIATES, INC.
By: /s/ Patrick G. LePore
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Patrick G. LePore, President
/s/ Martin J. Veilleux
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MARTIN J. VEILLEUX
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Exhibit 10.30
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INDEMNIFICATION AGREEMENT
This Indemnification Agreement made and entered into this __th day of
March, 1999 ("Agreement"), by and between Boron, LePore & Associates, Inc., a
Delaware corporation (together with any successor or successors thereto, the
"Company") and Patrick G. LePore ("Indemnitee"):
WHEREAS, it is essential to the Company that it be able to retain and
attract as directors the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors to
litigation risks and expenses and the limitations on the availability of
directors and officers liability insurance have made it increasingly difficult
for the Company to attract and retain such persons;
WHEREAS, its by-laws permit the Company to enter into indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee's rights to full indemnification against
litigation risks and expenses (regardless, among other things, of any amendment
to or revocation of the Company's by-laws or any change in the ownership of the
Company or the composition of its Board of Directors), which indemnification is
intended to be greater than that which is afforded by the Company's certificate
of incorporation, by-laws and, to the extent insurance is available, the
coverage of Indemnitee under the Company's directors and officers liability
insurance policies; and
WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in continuing in Indemnitee's position as a director of the Company:
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is serving
or has served (i) as a director of the Company, (ii) in any capacity
with respect to any employee benefit plan of the Company, or (iii) as
a director, partner, trustee, officer, employee, or agent of any other
Entity at the request of the Company.
(b) "Entity" shall mean any corporation, partnership, joint venture,
trust, foundation, association, organization or other legal entity and
any group or division of the Company or any of its subsidiaries.
(c) "Expenses" shall mean all reasonable fees, costs and expenses
incurred in connection with any Proceeding (as defined below),
including, without limitation, attorneys' fees, disbursements and
retainers (including, without
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limitation, any such fees, disbursements and retainers incurred by
Indemnitee pursuant to Section 10 of this Agreement), fees and
disbursements of expert witnesses, private investigators and
professional advisors (including, without limitation, accountants and
investment bankers), court costs, transcript costs, fees of experts,
travel expenses, duplicating, printing and binding costs, telephone
and fax transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those
terms in Section 3(a) below.
(e) "Liabilities" shall mean judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts paid in settlement.
(f) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative or investigative,
whether formal or informal, including a proceeding initiated by
Indemnitee pursuant to Section 10 of this Agreement to enforce
Indemnitee's rights hereunder.
2. Services of Indemnitee. In consideration of the Company's covenants
and commitments hereunder, Indemnitee agrees to serve or continue to serve as a
director of the Company. However, this Agreement shall not impose any obligation
on Indemnitee or the Company to continue Indemnitee's service to the Company
beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.
3. Agreement to Indemnify. The Company agrees to indemnify Indemnitee as
follows:
(a) Subject to the exceptions contained in Section 4(a) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding (other than an action by or in the right of the
Company) by reason of Indemnitee's Corporate Status, Indemnitee shall
be indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as "Indemnifiable Expenses" and "Indemnifiable
Liabilities," respectively, and collectively as "Indemnifiable
Amounts").
(b) Subject to the exceptions contained in Section 4(b) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding by or in the right of the Company to procure a judgment
in its favor by reason of Indemnitee's Corporate Status, Indemnitee
shall be indemnified by the Company against all Indemnifiable
Expenses.
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4. Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all circumstances other
than the following:
(a) If indemnification is requested under Section 3(a) and it has been
adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the claim
for indemnification has arisen, Indemnitee failed to act in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company or, with respect to any criminal
action or proceeding, Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b) and
(i) it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the
Proceeding out of which the claim for indemnification has
arisen, Indemnitee failed to act in good faith and in a
manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, Indemnitee
shall not be entitled to payment of Indemnifiable Expenses
hereunder; or
(ii) it has been adjudicated finally by a court of competent
jurisdiction that Indemnitee is liable to the Company with
respect to any claim, issue or matter involved in the
Proceeding out of which the claim for indemnification has
arisen, including, without limitation, a claim that
Indemnitee received an improper personal benefit, no
Indemnifiable Expenses shall be paid with respect to such
claim, issue or matter unless the Court of Chancery or
another court in which such Proceeding was brought shall
determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity
for such Indemnifiable Expenses which such court shall deem
proper.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Amounts for
which Indemnitee seeks payment under Section 3 of this Agreement and the basis
for the claim. The Company shall pay such Indemnifiable Amounts to Indemnitee
within twenty (20) calendar days of receipt of the request. At the request of
the Company, Indemnitee shall furnish such documentation and information as are
reasonably available to Indemnitee and necessary to establish that Indemnitee is
entitled to indemnification hereunder.
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6. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
7. Effect of Certain Resolutions. Neither the settlement or termination
of any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not create a presumption
that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
or, with respect to any criminal action or proceeding, had reasonable cause to
believe that Indemnitee's action was unlawful.
8. Agreement to Advance Interim Expenses; Conditions. The Company shall
pay to Indemnitee all Indemnifiable Expenses incurred by Indemnitee in
connection with any Proceeding, including a Proceeding by or in the right of the
Company, in advance of the final disposition of such Proceeding, if Indemnitee
furnishes the Company with a written undertaking to repay the amount of such
Indemnifiable Expenses advanced to Indemnitee if it is finally determined by a
court of competent jurisdiction that Indemnitee is not entitled under this
Agreement to indemnification with respect to such Expenses. Such undertaking
shall be an unlimited general obligation of Indemnitee, shall be accepted by the
Company without regard to the financial ability of Indemnitee to make repayment,
and in no event shall be required to be secured.
9. Procedure for Payment of Interim Expenses. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 8 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indemnifiable Expenses under Section 8 shall be made no
later than twenty (20) calendar days after the Company's receipt of such request
and the undertaking required by Section 8.
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10. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a
-----------------------
request for payment of Indemnifiable Amounts under Sections 3 and 5
above or a request for an advancement of Indemnifiable Expenses under
Sections 8 and 9 above and the Company fails to make such payment or
advancement in a timely manner pursuant to the terms of this
Agreement, Indemnitee may petition the appropriate judicial authority
to enforce the Company's obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section
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10(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts
hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for
--------
any Expenses incurred by Indemnitee in connection with investigating,
preparing for, litigating, defending or settling any action brought by
Indemnitee under Section 10(a) above, or in connection with any claim
or counterclaim brought by the Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded from
---------------------
asserting in any Proceeding, including, without limitation, an action
under Section 10(a) above, that the provisions of this Agreement are
not valid, binding and enforceable or that there is insufficient
consideration for this Agreement and shall stipulate in court that the
Company is bound by all the provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company
----------------------------
(including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination
concerning the permissibility of the payment of Indemnifiable Amounts
or the advancement of Indemnifiable Expenses under this Agreement
shall not be a defense in any action brought under Section 10(a)
above, and shall not create a presumption that such payment or
advancement is not permissible.
11. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to
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enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated
by this Agreement have been duly authorized by the Company.
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(b) Enforceability. This Agreement, when executed and delivered by the
--------------
Company in accordance with the provisions hereof, shall be a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the enforcement of creditors'
rights generally.
12. Insurance. The Company will use its commercially reasonable efforts to
obtain and maintain a policy or policies of insurance with reputable insurance
companies providing the Indemnitee with coverage for losses from wrongful acts,
and to ensure the Company's performance of its indemnification obligations under
this Agreement. In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee at least the same rights and benefits as are accorded to the most
favorably insured of the Company's officers and directors. Notwithstanding the
foregoing, if the Company, after employing commercially reasonable efforts as
provided in this section, determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, or if the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit the Company shall use its commercially reasonable efforts to obtain and
maintain a policy or policies of insurance with coverage having features as
similar as practicable to those described above.
13. Contract Rights Not Exclusive. The rights to payment of Indemnifiable
Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which Indemnitee
may have at any time under applicable law, the Company's by-laws or certificate
of incorporation, or any other agreement, vote of stockholders or directors, or
otherwise, both as to action in Indemnitee's official capacity and as to action
in any other capacity as a result of Indemnitee's serving as a director of the
Company.
14. Successors. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.
15. Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the
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execution of such documents as are necessary to enable the Company to bring suit
to enforce such rights.
16. Change in Law. To the extent that a change in applicable law (whether
by statute or judicial decision) shall permit broader indemnification than is
provided under the terms of the by-laws of the Company and this Agreement,
Indemnitee shall be entitled to such broader indemnification and this Agreement
shall be deemed to be amended to such extent.
17. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
18. Indemnitee as Plaintiff. Except as provided in Section 10(c) of this
Agreement and in the next sentence, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any director or officer thereof, or any third party, unless the
Company has consented to the initiation of such Proceeding. This Section shall
not apply to counterclaims or affirmative defenses asserted by Indemnitee in an
action brought against Indemnitee.
19. Modifications and Waiver. Except as provided in Section 16 above with
respect to changes in applicable law which broaden the right of Indemnitee to be
indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
20. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
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(i) If to Indemnitee, to:
The Indemnitee's home address
as maintained in the Company's
personnel records
(ii) If to the Company, to:
Boron, LePore & Associates, Inc.
17-17 Route 208 North
Fair Lawn, NJ 07410
Attn: President
or to such other address as may have been furnished in the same manner by any
party to the others.
21. Governing Law. This Agreement shall be governed by and construed and
enforced under the laws of the State of Delaware without giving effect to the
provisions thereof relating to conflicts of law.
22. Consent to Jurisdiction. The Company hereby irrevocably and
unconditionally consents to the jurisdiction of the courts of Delaware and the
United States District Court in Delaware. The Company hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Proceeding
arising out of or relating to this Agreement in the courts of Delaware or the
United States District Court in Delaware, and hereby irrevocably and
unconditionally waives and agrees not to plead or claim that any such Proceeding
brought in any such court has been brought in an inconvenient forum.
23. Agreement Governs. This Agreement is to be deemed consistent wherever
possible with relevant provisions of the Company's by-laws and certificate of
incorporation; however, in the event of a conflict between this Agreement and
such provisions, the provisions of this Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BORON, LePORE & ASSOCIATES, INC.
By: /s/ Martin J. Veilleux
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Name: Martin J. Veilleux
Title: Executive Vice President
INDEMNITEE
/s/ Patrick G. LePore
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Name: Patrick G. LePore
Title: President
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