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EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated September 20, 2000, between DENDRITE INTERNATIONAL,
INC., a New Jersey Corporation ("Dendrite"), having its principal place of
business at 1200 Mt. Kemble Avenue, Morristown, New Jersey 07960, and MICHAEL
ATIEH ("Employee"), having an address at 90 Vanderveer Drive, Basking Ridge, NJ
07920.
WHEREAS, Dendrite, its affiliates, and subsidiaries develop and own what
is referred to as Territory Management Systems and related hardware and
equipment;
WHEREAS, Employee is or desires to be employed by Dendrite and Dendrite
desires to employ Employee; and
WHEREAS, Dendrite is willing to provide certain confidential and
proprietary information to Employee for the limited purpose of enabling Employee
to carry out duties in connection with his employment by Dendrite.
RECITAL:
NOW, THEREFORE, it is agreed as follows:
1. EMPLOYMENT AT WILL
Dendrite hereby employs Employee, and Employee hereby accepts such
employment, as Senior Vice President and Chief Financial Officer of Dendrite.
Dendrite hereby employs Employee as an at-will employee. This employment may be
terminated at any time for any reason with or without "Cause" (as defined below)
by Dendrite. Employee agrees to provide two (2) weeks notice to Dendrite before
terminating his employment.
2. DUTIES
Employee shall perform those duties as may from time to time be assigned
to him and shall carry out any assignments related to Dendrite or its affiliates
as directed. In addition, Employee shall be required to attend all meetings of
the Board of Directors of Dendrite (the "Board"). Employee shall devote his
full-time attention, energy, knowledge, skill and best efforts solely and
exclusively to the duties assigned to him which he shall faithfully and
diligently perform. Employee shall report to Dendrite as may be required and
will filly account for all records, data, materials or other property belonging
to Dendrite or its customers of which he is given custody. Dendrite may, from
time to time, establish rules and regulations and Employee shall faithfully
observe these in the performance of his duties. Employee shall further comply
with all policies and directives of Dendrite. Dendrite acknowledges that
Employee currently serves on the Board of Directors of ACE, Ltd., and he may
continue to serve on that board, provided it does not
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interfere with his duties at Dendrite or create a conflict of interest. If
Employee wishes to serve on any other boards, he must first receive the written
consent of the General Counsel of Dendrite.
3. COMPENSATION
(i) Base Salary. Dendrite shall pay Employee for his services a base
salary at a rate of $300,000 per annum to be paid on a semi-monthly basis in
accordance with Dendrite's regular payroll practices.
(ii) Bonus. Commencing on the completion of the fourth fiscal quarter of
2000, Employee shall be eligible to receive a quarterly bonus (the "Bonus") of
$56,250 per quarter, payable in the next payroll period occurring at least two
weeks after Dendrite publicly discloses its financial results in such fiscal
quarter; provided, however, that the payment of the Bonus is subject to: (a)
Dendrite's achievement of quarterly financial goals as set forth in the Board
approved annual business plan, (b) such other objectives as mutually agreed
upon, and (c) Employee remaining in the employ of Dendrite as of the end of any
such quarter and (d) Dendrite's annual bonus "hold back" policy as such policy
generally applies to Dendrite senior executives. Notwithstanding the foregoing,
Employee shall receive a Bonus of $56,250 for the fourth fiscal quarter of 2000;
provided he is in the employ of the Employer as of the end of said quarter).
(iii) Stock Options
(a) Pursuant to Dendrite's 1997 Stock Plan, as amended (the "Stock
Plan"), upon the execution of this Agreement, Dendrite shall give Employee an
option to purchase 225,000 shares of the common stock of Dendrite. The price for
such options shall be determined by the Option Committee and Compensation
Committee of the Board via a consent which will be effective on, or as soon
after as possible, your first day as a Dendrite employee. Employee's entitlement
to such options shall be subject to (i) a four-year vesting schedule, (ii)
approval by the Board, (iii) Employee's execution of a definitive option
agreement in form and substance satisfactory to Dendrite and (iv) in all
instances subject to the terms and conditions of the Stock Plan. Notwithstanding
anything to the contrary, in the event of a "Change in Control" (as defined
below), if Employee is not retained in a similar position or no similar position
is offered to Employee following a "Change in Control," all of Employee's
options previously granted to him at the time of such event shall immediately
vest.
(b) For purposes of this Agreement, "Change in Control" means the
occurrence of any one of the following events:
(i) any "person" (as such term is defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange Act") and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
"beneficial owner" (as defined in rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of Dendrite representing 33% or more
of the combined voting power of Dendrite's then outstanding securities
eligible to vote for the election of the Board (the "Dendrite Voting
Securities"); provided, however, that the event described in this
paragraph (i) shall not be deeded to be
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a Change in Control by virtue of any of the following acquisitions: (A) by
Dendrite or any of its subsidiaries, (B) by any employee benefit plan
sponsored or maintained by Dendrite or any of its subsidiaries, (C) by any
underwriter temporarily holding securities pursuant to an offering of such
securities, (D) pursuant to a Non-Qualifying Transaction (as defined in
paragraph (iii)), (E) pursuant to any acquisition by Employee or any group
of persons including Employee or any entity controlled by Employee or such
group ("Employee Holders"), or (F) a transaction (other than one described
in paragraph (iii) below) in which Dendrite Voting Securities are acquired
from Dendrite, if a majority of the Board approves a resolution providing
expressly that the acquisition pursuant to this clause (F) does not
constitute a Change in Control under this paragraph (i). Notwithstanding
the foregoing, a transaction that would otherwise be considered a Change
in Control but for the operation of clauses D or F of this paragraph (i)
will be deemed a Change in Control if John Bailye immediately after the
consummation of such a transaction is neither Chairman, President or
Chief Executive Officer (or holds a position comparable to the foregoing
positions) of Dendrite or any successor corporation to Dendrite as a
result of such Change in Control transaction;
(ii) individuals who, on Employee's first date of employment,
constituted the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority thereof, provided that any person becoming
a director subsequent to such date, whose election or nomination for
election was approved by a vote of at least a majority of the Incumbent
Directors then on the Board (either by a specific vote or by approval of
the proxy statement of Dendrite in which such person is named as a nominee
for director, without objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual elected or nominated as a
director of Dendrite initially as a result of an actual or threatened
election contest with respect to directors or as a result of any other
actual or threatened solicitation of proxies or consents by or on behalf
of any person other than the Board shall be deemed to be an Incumbent
Director;
(iii) the consummation of a merger, consolidation, share
exchange or similar form of corporate reorganization (other than a
transaction with Employee, any group of persons including Employee or any
entity controlled by Employee or such a group of persons) involving
Dendrite or any of its subsidiaries that requires the approval of
Dendrite's stockholders whether for such transaction or the issuance of
securities in connection with the transaction or otherwise, (a "Business
Combination"), unless immediately following such Business Combination: (A)
more than 50% of the total voting power of (x) the corporation resulting
from such Business Combination (the "Surviving Corporation"), or (y) if
applicable, the ultimate parent corporation that directly or indirectly
has beneficial ownership of 100% of the voting securities eligible to
elect directors of the Surviving Corporation (the "Parent Corporation"),
is represented by Dendrite Voting Securities that were outstanding
immediately prior to the consummation of such Business Combination (or, if
applicable, is represented by shares into which such Dendrite Voting
Securities were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same
proportion as the voting power of such Dendrite Voting Securities among
the holders thereof immediately
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prior to the Business Combination, (B) no person (other than the Employee
Holders or any employee benefit plan sponsored or maintained by the
Surviving Corporation or the Parent Corporation), is or becomes the
beneficial owner, directly or indirectly, of 33% or more of the total
voting power of the outstanding voting securities eligible to elect
directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least a majority of the
members of the board of directors of the Parent Corporation (or if there
is no Parent Corporation, the Surviving Corporation) were Incumbent
Directors at the time of the Board's approval of the execution of the
initial agreement providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in (A), (B) and
(C) above shall be deemed to be a "Non-Qualifying Transaction"); or
(iv) the stockholders of Dendrite approve a sale of all or
substantially all of the Dendrite's assets.
Notwithstanding the foregoing, a Change in Control of Dendrite shall not be
deemed to occur solely because any person acquires beneficial ownership of more
than 33% of Dendrite Voting Securities as a result of the acquisition of
Dendrite Voting Securities by Dendrite which, by reducing the number of Dendrite
Voting Securities outstanding, increases the percentage of shares beneficially
owned by such person; provided, that if a Change in Control of Dendrite would
occur as a result of such an acquisition by Dendrite (if not for the operation
of this sentence), and after Dendrite's acquisition such person becomes the
beneficial owner of additional Dendrite Voting Securities that increase the
percentage of outstanding Dendrite Voting Securities beneficially owned by such
person, then a Change in Control of Dendrite shall occur.]
4. TERMINATION; SEVERANCE
(a) Upon Employee's termination of employment by Dendrite for any reason
other than termination by Dendrite for Cause (as defined below), Disability (as
defined below) or upon Employee's death, Employee shall solely be entitled to
(subject to any applicable off-sets) applicable payments and benefits in Section
4(b), his base salary through the date of his termination, and payment for any
unused but accrued vacation through the date of termination.
(b) If Employee's employment hereunder is terminated by Dendrite prior to
the first anniversary of this Agreement for any reason other than death, Cause,
or Disability, then Employee shall be entitled to receive severance payments in
an aggregate amount equal to the annual rate of Employee's base salary in effect
as of the date of termination and each quarterly installment of the Bonus
otherwise due as set forth in Section 3 (ii) in respect of the calendar year in
which Employee's employment with Dendrite is terminated. If Employee's
employment is terminated after the first anniversary of this Agreement for any
reason other than death, cause or disability, the Employee shall be entitled to
receive severance payments in an aggregate amount equal to the annual rate of
Employee's base salary in effect as of the date of termination. The severance
payments to be paid to Employee under this Section 4(b) shall be referred to
herein as the "Severance Payment". Employee's Severance Payment shall be paid by
Dendrite in cash in twelve (12) consecutive equal monthly payments commencing
not later than thirty (30) days after
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the effective date of the termination of Employee's employment. No interest
shall accrue or be payable on or with respect to any Severance Payment. In the
event of a termination of Employee's employment described in this Section 4(b),
Employee shall be provided continued "COBRA" coverage pursuant to Sections 601
et seq. of ERISA under Dendrite's group medical and dental plans. During the
period which Employee receives the Severance Payment, Employee's cost of COBRA
coverage shall be the same as the amount paid by employees of Dendrite for the
same coverage under Dendrite's group health and dental plans. Notwithstanding
the foregoing, in the event Employee becomes re-employed with another employer
and becomes eligible to receive health coverage from such employer, the payment
of COBRA coverage by Dendrite, as described herein shall cease.
(c) If Employee's employment hereunder is terminated following a Change in
Control (i) by Dendrite for any reason other than death, Cause, or Disability or
(ii) by Employee for Good Reason (as defined below), the Employee shall be
entitled to receive severance payments in an aggregate amount equal to the sum
of twelve (12) months base salary (calculated at the rate of base salary then
being paid to Employee as of the date of termination). The severance payments to
be paid to Employee under this Section 4(c) shall be referred to herein as the
"Change in Control Severance Payment". Employee's Change In Control Severance
Payment shall be paid by Dendrite in cash in twelve (12) consecutive equal
monthly payments commencing not later than thirty (30) days after the effective
date of the termination of Employee's employment. No interest shall accrue or be
payable on or with respect to any Severance Payment. In the event of a
termination of Employee's employment described in this Section 4(c), Employee
shall be provided continued "COBRA" coverage pursuant to Sections 601 et seq. of
ERISA under Dendrite's group medical and dental plans. During the period which
Employee receives the Severance Payment, Employee's cost of COBRA coverage shall
be the same as the amount paid by employees of Dendrite for the same coverage
under Dendrite's group health and dental plans. Notwithstanding the foregoing,
in the event Employee becomes re-employed with another employer and becomes
eligible to receive health coverage from such employer, the payment of COBRA
coverage by Dendrite as described herein shall cease.
(d) The making of any Severance Payments under Sections 4(b) or 4(c)
hereunder is conditioned upon the signing of a general release in form and
substance satisfactory to Dendrite under which Employee releases Dendrite and
its affi1iates together with their respective officers, directors, shareholders,
employees, agents and successors and assigns from any and all claims he may have
against them. In the event Employee breaches Sections 7, 8, 9, 11 or 12 of this
Agreement, in addition to any other remedies at law or in equity, Dendrite may
cease making any Severance Payment or any payments for COBRA coverage otherwise
due under Sections 4(b) [and 4(c)]. Nothing herein shall affect any of
Employee's obligations or Dendrite's rights under this Agreement.
(e) For purposes of this Agreement, "Cause" as used herein shall mean (i)
any gross misconduct on the part of Employee with respect to his duties under
this Agreement, (ii) the engaging by Employee in an indictable offense which
relates to Employee's duties under this Agreement or which is likely to have a
material adverse effect on the business of Dendrite, (iii) the commission by
Employee of any willful or intentional act which injures in any material
respect or
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could reasonably be expected to injure in any material respect the reputation,
business or business relationships of Dendrite, including without limitation, a
breach of Sections 6, 7, 8, 9, 11, 12 or 13 of this Agreement, or (iv) the
engaging by Employee through gross negligence in conduct which injures
materially or could reasonably be expected to injure materially the business or
reputation of Dendrite.
(f) For purposes of this Agreement, "Disabled" as used herein shall have
the same meaning as that term, or such substantially equivalent term, has in any
group disability policy carried by Dendrite. if no such policy exists, the term
"Disabled" shall mean the occurrence of any physical or mental condition which
materially interferes with the performance of Employee's customary duties in his
capacity as an employee where such disability has been in effect for a period of
six (6) months (excluding permitted vacation time), which need not be
consecutive, during any single twelve (12) month period.
(g) For purposes of this Agreement, "Good Reason" means, without
Employee's express written consent, the occurrence of any of the following
events which is not corrected within ten (10) days following notice of such
event given by Employee to Dendrite:
(i) the assignment to Employee of any duties or responsibilities
materially and adversely inconsistent with Employee's position (including
any material diminution of such duties or responsibilities) or (B) a
material and adverse change in Employee's reporting responsibilities,
titles or offices (other than membership on the Board) with Dendrite;
(ii) any material breach by Dendrite of Section 3 of this Agreement;
(iii) the failure of Dendrite to continue in effect any employee
benefit plan, compensation plan, welfare benefit plan or fringe benefit
plan (such plans being referred to herein as "Welfare Plans") in which
Employee is participating as of the effective date of this Agreement (or
as such benefits and compensation may be increased from time to time), or
the taking of any action by Dendrite which would materially and adversely
affect Employee's participation in or materially reduce Employee's
benefits under such Welfare Plans (other than an across-the-board
reduction of such benefits affecting senior executives of Dendrite) unless
(i) Employee is permitted to participate in other plans providing Employee
with substantially comparable benefits (at substantially comparable cost
with respect to the Welfare Plans), (ii) any such Welfare Plan does not
provide material benefits to Employee (determined in relation to
Employee's compensation and benefits package), (iii) such failure or
action is taken at the direction of Employee or with his consent, or (iv)
such failure or action is required by law;
(iv) the failure of Dendrite to obtain the assumption agreement from
any successor in the event of a sale of all or substantially all of the
assets of Dendrite in one transaction or a series of related transactions;
and
(v) any requirement of Dendrite that Employee be based anywhere
other than Dendrite's executive offices located in Morristown, New Jersey;
provided such executive
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offices are located within thirty-five (35) miles of Morristown, New
Jersey or within the borough of Manhattan.
Employee must notify Dendrite of any event constituting Good Reason within
ninety (90) days following Employee's knowledge of its existence or such event
shall not constitute Good Reason under this Agreement.
(h) In the event Employee terminates his employment with Dendrite or
Dendrite terminates Employee's employment with Dendrite for "Cause" or
Employee's employment ends as a result of his death or becoming "Disabled," it
is understood and agreed that Dendrite's only obligation is to pay Employee any
unused but accrued vacation days and his base salary through the date of his
termination.
5. BENEFITS
Dendrite shall provide Employee:
(i) Vacation. Four weeks vacation per annum in accordance with Dendrite
policy in effect from time to time.
(ii) Business Expenses. Reimbursement for all reasonable travel,
entertainment and other reasonable and necessary out-of-pocket expenses incurred
by Employee in connection with the performance of his duties, including
first-class airline travel. Reimbursement will be made upon the submission by
the Employee of appropriate documentation and verification of the expenses.
(iii) Financial Planning. Financial planning reimbursement in accordance
with Dendrite's policy in effect from time to time.
(iv) Other. Dendrite will provide Employee other benefits to the same
extent as may be provided to other employees generally in accordance with
Dendrite policy in effect from time to time and subject to the terms and
conditions of such benefit plans.
6. INFORMATION AND BUSINESS OPPORTUNITY
During Employee's employment with Dendrite, Employee may acquire knowledge
of (i) information that is relevant to the business of Dendrite or its
affiliates or (ii) knowledge of business opportunities pertaining to the
business in which Dendrite or its affiliates are engaged. Employee shall
promptly disclose to Dendrite that information or business opportunity but shall
not disclose it to anyone else without Dendrite's written consent.
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7. DENDRITE CONFIDENTIAL INFORMATION
The Employee will, as a result of his employment with Dendrite, acquire
information which is proprietary and confidential to Dendrite. This information
includes, but is not limited to, Dendrite's proprietary software, technical and
commercial information, instruction and product information, the design, "look
and feel" and capabilities of Dendrite's product, Dendrite's proprietary
training program methodology regarding the utilization of electronic territory
management software and associated customer support services, Dendrite's
methodology for promoting its products and services to its clients, Dendrite's
proprietary Graphic User Interface, the navigational paths through which
Dendrite's clients input and access information stored in the proprietary
software, the particularized needs and demands of Dendrite's clients and the
customizations Dendrite makes to its proprietary software to meet those clients'
needs, financial arrangements, salary and compensation information, competitive
status, pricing policies, knowledge of suppliers, technical capabilities,
discoveries, algorithms, concepts, software in any stage of development,
designs, drawings, specifications, techniques, models, data, technical manuals,
training guides and manuals, research and development materials, processes,
procedures, know-how and other business affairs relating to Dendrite.
Confidential information also includes any and all technical information
involving Dendrite's work. Employee will keep all such information confidential
and will not reveal it at any time without the express written consent of
Dendrite. This obligation is to continue in force after employment terminates
for whatever reason.
8. CLIENT CONFIDENTIAL INFORMATION
Dendrite may, from time to time, be fUrnished information and data which
is proprietary and confidential to its clients, customers or suppliers. Employee
will not, at any time for any reason, reveal any information provided by any of
Dendrite's clients, customers or suppliers to anyone, unless provided with prior
written consent by Dendrite or by the applicable client, customer or supplier.
This obligation is to continue in force after employment terminates for whatever
reason.
9. RETURN OF PROPERTY
Upon termination of employment for any reason or upon the request of
Dendrite, Employee shall return to Dendrite all property which Employee received
or prepared or helped prepare in connection with his employment including, but
not limited to, all copies of any confidential information or material, disks,
notes, notebooks, blueprints, customer lists and any and all other papers or
material in any tangible media or computer readable form belonging to Dendrite
or to any of its customers, clients or suppliers, and Employee will not retain
any copies, duplicates, reproductions or excerpts thereof.
10. INVENTIONS
All work performed by Employee and all materials, products, deliverables,
inventions, software, ideas, disclosures and improvements, whether patented or
unpatented and copyrighted
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material made or conceived by Employee, solely or jointly, in whole or in part,
during the term of Employee's employment by Dendrite which (i) relate to
methods, apparatus, designs, products, processes or devices sold, licensed, used
or under development by Dendrite, (ii) otherwise relate to or pertain to the
present, proposed or contemplated business, fUnctions or operations of Dendrite,
(iii) relate to Dendrite actual or anticipated research or development, (iv)
involve the use of Dendrite's equipment, supplies or facilities, or (v) result
from access to any Dendrite assets, information, inventions or the like are
confidential information, are the property of Dendrite and shall be deemed to be
a work made for hire. To the extent that title to any of the foregoing shall
not, by operation of law, vest in Dendrite, all right, title and interest
therein are hereby irrevocably assigned to Dendrite. Employee agrees to give
Dendrite or any person or entity designated by Dendrite reasonable assistance
required to perfect its rights therein.
If Employee conceives any idea, makes any discovery or invention within
one (1) year after the termination of employment with Dendrite that relate to
any matters pertaining to the business of Dendrite, it shall be deemed that it
was conceived while in the employ of Dendrite.
11. RESTRICTION ON FUTURE EMPLOYMENT
Employee acknowledges: (i) the highly competitive nature of the business
and the industry in which Dendrite competes; (ii) as the Chief Financial
Officer, he will acquire and have access to confidential information as
described in paragraph 7, particularly highly sensitive financial information,
(iii) that, as a key employee of Dendrite, he will participate in the servicing
of current clients and/or the solicitation of prospective clients, through
which, among other things, Employee will obtain knowledge of the "know-how" and
business practices of Dendrite, in which matters Dendrite has a substantial
proprietary interest; and (iv) that his employment hereunder requires the
performance of services which are special, unique, extraordinary and
intellectual in character, and his position with Dendrite placed and places him
in a position of confidence and trust with the clients and employees of
Dendrite. In the course of the Employee's employment with Dendrite, Employee
will develop a personal relationship with the clients of Dendrite and a
knowledge of those clients' affairs and requirements, and that the relationship
of Dendrite with their established clientele will therefore be placed in
Employee's hands in confidence and trust. Employee consequently agrees that it
is reasonable and necessary for the protection of the confidential information,
goodwill and business of Dendrite that Employee makes the covenants contained
herein and that Dendrite would not have entered into this Agreement unless the
covenants set forth in this Section 11 were contained in this Agreement.
Accordingly, Employee agrees that during the period that he is employed by
Dendrite and for a period of two (2) years thereafter, he shall not, as an
individual, employee, consultant, partner, shareholder, or in association with
any other person, business or enterprise, except on behalf of Dendrite, directly
or indirectly, and regardless of the reason for him ceasing to be employed by
Dendrite:
(i) perform services that compete with the business or businesses
conducted by Dendrite or any of its affiliates or render services to any
person or entity which competes with the business or businesses conducted
by Dendrite or any of its affiliates (or which business Dendrite can at
the time of Employee's termination of employment
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establish it will likely conduct within one (1) year following the date of
Employee's termination);
(ii) attempt in any manner to solicit or accept from any client
business of the type performed by Dendrite or to persuade any client to
cease to do business or to reduce the amount of business which any such
client has customarily done or is reasonably expected to do with Dendrite,
whether or not the relationship between Dendrite and such client was
originally established in whole or in part through Employee's efforts;
(iii) employ, attempt to employ or assist anyone else in employing
any employee or contractor of Dendrite or induce or attempt to induce any
employee or contractor of Dendrite to terminate their employment or
engagement with Dendrite; or
(iv) render to or for any client any services of the type rendered
by Dendrite.
As used in this Section 11, the term "client" shall mean (1) anyone who is
a client of Dendrite on the date of Employee's termination or, if Employee's
employment shall not have terminated, at the time of the alleged prohibited
conduct (any such applicable date being called the "Determination Date"); (2)
anyone who was a client of Dendrite at any time during the one (1) year period
immediately preceding the Determination Date; (3) any prospective client to whom
Dendrite had made a new business presentation (or similar offering of services)
at any time during the one (1) year period immediately preceding the
Determination Date; and (4) any prospective client to whom Dendrite made a new
business presentation (or similar offering of services) at any time within six
(6) months after the date of Employee's termination (but only if the initial
discussions between Dendrite and such prospective client relating to the
rendering of services occurred prior to the date of Employee's termination, and
only if Employee actively participated in or supervised such discussions). For
purposes of this clause, it is agreed that a general mailing or an incidental
contact shall not be deemed a "new business presentation or similar offering of
services" or a "discussion". In addition, if the client is part of a group of
companies which conducts business through more than one entity, division or
operating unit, whether or not separately incorporated (a "Client Group"), the
term "client" as used herein shall also include each entity, division and
operating unit of the Client Group where the same management group of the Client
Group has the decision making authority or significant influence with respect to
contracting for services of the type rendered by Dendrite.
For a two (2) year period after the termination of Employee's
employment for any reason whatsoever, Employee agrees to promptly notify
Dendrite in writing the identity of all subsequent employers. Employee agrees to
provide such information as Employer may from time to time request to determine
Employee's compliance with the terms of this Agreement.
12. NON-DISPARAGEMENT
Employee agrees that he will not at any time make any statement,
observation or opinion, or communicate any information (whether oral or written)
that is likely to come to the attention of any client or employee of Dendrite or
any member of the media, which statement is derogatory of
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or casts in a negative light Dendrite or its officers, directors and employees
or otherwise engage in any activity which is inimical to the interests of the
Company.
13. OUTSIDE CONTRACTING
Employee shall not enter into any agreements to provide programming or
other services to any company, person or organization outside of his employment
by Dendrite (an "Outside Agreement") without the prior written express consent
from Dendrite. Employee must notify Dendrite of his intent to enter into an
Outside Agreement specifying therein the other party to such Outside Agreement
and the type of programming and/or services to be provided by Employee. Dendrite
shall not unreasonably withhold permission to Employee to enter into Outside
Agreements unless such Outside Agreements (i) are with competitors or potential
competitors of Dendrite, or (ii) as determined in Dendrite's sole discretion,
shall substantially hamper or prohibit Employee from satisfactorily carrying out
all duties assigned to Employee by Dendrite.
14. AFTER-HOURS DEVELOPMENT
In the event that Employee shall develop any software which, pursuant to
Section 10 herein, is not the property of Dendrite, Dendrite shall have a right
of first refUsal to publish and/or purchase the rights to such software.
Employee shall notify Dendrite of any such After-Hours Development as soon as
reasonably possible before or during the development process including a
description of the intended functions of the After-Hours Development and the
estimated date of completion.
15. PRIOR EMPLOYMENT
Employee represents and warrants that Employee has not taken or otherwise
misappropriated and does not have in Employee's possession or control any
confidential and proprietary information belonging to any of Employee's prior
employers or connected with or derived from Employee's services to prior
employers. Employee represents and warrants that Employee has returned to all
prior employers any and all such confidential and proprietary information.
Employee further acknowledges, represents and warrants that Dendrite has
informed Employee that Employee is not to use or cause the use of such
confidential or proprietary information in any manner whatsoever in connection
with Employee's employment by Dendrite. Employee agrees, represents and warrants
that Employee will not use such information. Employee shall indemnify and hold
harmless Dendrite from any and all claims arising from any breach of the
representations and warranties in this Section.
16. REMEDIES
The parties agree that in the event Employee breaches or threatens to
breach this Agreement, money damages may be an inadequate remedy for Dendrite
and that Dendrite will not have an adequate remedy at law. It is understood,
therefore, that in the event of a breach of this Agreement by Employee, Dendrite
shall have the right to obtain from a court of competent
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jurisdiction restraints or injunctions prohibiting Employee from breaching or
threatening to breach this Agreement. In that event, the parties agree that
Dendrite will not be required to post bond or other security. It is also agreed
that any restraints or injunctions issued against Employee shall be in addition
to any other remedies which Dendrite may have available to it.
17. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey.
18. NOTICES
In the event any notice is required to be given under the terms of this
Agreement, it shall be delivered in the English language, in writing, as
follows:
If to Employee: Michael Atieh
90 Vanderveer Drive
Basking Ridge, New Jersey 07920
If to Dendrite: Christine Pellizzari, Vice President
Dendrite International, Inc.
1200 Mt. Kemble Avenue
Morristown, New Jersey 07960
or to such other address as either party may have fUrnished to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
19. NON-ASSIGNABILITY
Employee's rights or obligations under the terms of this Agreement or of
any other agreement with Dendrite may not be assigned. Any attempted assignment
will be void as to Dendrite. Dendrite may, however, assign its rights to any
affiliated or successor entity.
20. BINDING AGREEMENT
This Agreement shall be binding upon and inure to the benefit of
Employee's heirs and personal representatives and to the successors and assigns
of Dendrite.
21. INTEGRATION
This Agreement sets forth the entire agreement between the parties hereto
and fully supersedes any and all prior negotiations, discussions, agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. No representations, oral or otherwise, with respect to the subject
matter of this Agreement have been made by either party.
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22. WAIVER
This Agreement may not be modified or waived except by a writing signed by
both parties. No waiver by either party of any breach by the other shall be
considered a waiver of any subsequent breach of the Agreement.
23. ARBITRATION
(a) If any dispute arises between Employee and Dendrite that the parties
cannot resolve themselves, including any dispute over the application, validity,
construction, or interpretation of this Agreement, arbitration in accordance
with the then-applicable rules of the American Arbitration Association shall
provide the exclusive remedy for resolving any such dispute, regardless of its
nature; provided, however, that Dendrite may enforce Employee's obligation to
provide services under this Agreement and Employee's obligations under Sections
6 through 13 hereof by an action for injunctive relief and damages in a court of
competent jurisdiction at any time prior or subsequent to the commencement of an
arbitration proceeding as herein provided.
(b) This Section 23 shall apply to claims arising under state and federal
statutes, local ordinances, and the common law. The arbitrator shall apply the
same substantive law that a court with jurisdiction over the parties and their
dispute would apply under the terms of this Agreement. The arbitrator's remedial
authority shall equal the remedial power that a court with jurisdiction over the
parties and their dispute would have. The arbitrator shall, upon an appropriate
motion, dismiss any claim brought in arbitration if he determines that the claim
could not properly have been pursued through court litigation. If the
then-applicable rules of the American Arbitration Association conflict with the
procedures of this Section 23, the latter shall apply.
(c) If the parties cannot agree upon an arbitrator, the parties shall
select a single arbitrator from a list of seven arbitrators provided by the
Newark, New Jersey office of the American Arbitration Association. All seven
listed arbitrators shall be retired judges experienced in employment law and/or
persons actively involved in hearing private cases. If the parties cannot agree
on selecting an arbitrator from that list, then the parties shall alternately
strike names from the list, with the first party to strike being determined by
lot. After each party has used three strikes, the remaining name on the list
shall be the arbitrator.
(d) Each party may be represented by counsel or by another representative
of the party's choice, and each party shall pay the costs and fees of its
counsel or other representative and its own filing or administrative fees. The
non-prevailing party (as determined by the arbitrator) shall bear the fees and
costs of the arbitrator.
(e) The arbitrator shall render an award and opinion in the form typical
of those rendered in labor arbitrations, and that award shall be final and
binding and non-appealable. To the extent that any part of this Section 23 is
found to be legally unenforceable for any reason, that part shall be modified or
deleted in such a manner as to render this Section 23 (or the remainder of this
Section) legally enforceable and as to ensure that except as provided in clause
(b) of this
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Section 23, all conflicts between Dendrite and Employee shall be resolved by
neutral, binding arbitration. The remainder of this Section 23 shall not be
affected by any such modification or deletion but shall be construed as
severable and independent. If a court finds that the arbitration procedures of
this Section 23 are not absolutely binding, then the parties intend any
arbitration decision to be fully admissible in evidence, given great weight by
any finder of fact, and treated as determinative to the maximum extent permitted
by law.
(f) Unless the parties agree otherwise, any arbitration shall take place
in Newark, New Jersey in such location as agreed to by Dendrite and Employee. If
the parties cannot agree upon a location for the arbitration, the arbitrator
shall determine the location within the State of New Jersey.
(g) Employee has read and understands this Section 23 which discusses
arbitration. Employee understands that by signing this Agreement, Employee
agrees to submit any claims arising out of, relating to, or in connection with
this Agreement, or the interpretation, validity, construction, performance,
breach or termination thereof, or his employment or the termination thereof, to
binding arbitration, and that this arbitration provision constitutes a waiver of
Employee's right to a jury trial and relates to the resolution of all disputes
relating to all aspects of the employer/employee relationship, including but not
limited to the following:
(i) Any and all claims for wrongful discharge of employment, breach
of contract, both express and implied; breach of the covenant of good
faith and fair dealing, both express and implied; negligent or intentional
infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with contract or
prospective economic advantage; and defamation;
(ii) Any and all claims for violation of any federal. state or
municipal statute, including, without limitation, Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Equal
Pay Act, the Employee Retirement Income Security Act, as amended, the Age
Discrimination in Employment Act of 1967, the Americans with Disabilities
Act of 1990, the Family and Medical Leave Act of 1993, the Fair Labor
Standards Act, the New Jersey Family Leave Act, the New Jersey
Conscientious Employee Protection Act and the New Jersey Law Against
Discrimination; and
(iii) Any and all claims arising out of any other federal, state or
local laws or regulations relating to employment or employment
discrimination.
24. SEVERABILITY
If any provision of this Agreement shall be declared invalid or illegal
for any reason whatsoever, then notwithstanding such invalidity or illegality,
the remaining terms and provisions of this Agreement shall remain in full force
and effect in the same manner as if the invalid or illegal provision had not
been contained herein. Moreover, if any one or more of the provisions
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contained in this Agreement is held to be excessively broad as to duration,
scope, activity or subject, such provision will be construed by limiting and
reducing them so as to be enforceable to the maximum extent compatible with
applicable law.
25. JURISDICTION
The State of New Jersey shall have exclusive jurisdiction to entertain any
legal or equitable action with respect to Sections 6 through 13 of this
Agreement except that Dendrite may institute any such suit against the Employee
in any jurisdiction in which the Employee may be at the time. In the event suit
is instituted in New Jersey, it is agreed that service of summons or other
appropriate legal process may be effected upon any party by delivering it to the
address in this Agreement specified for that party in Section 18.
IN WiTNESS WHEREOF, the parties have signed this Agreement as of the first
date written above.
DENDRITE INTERNATIONAL, INC.
By: [Illegible]
Name:
Title: Executive V.P. & Chief Financial Officer
September 20, 2000
/s/ Michael Atieh
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Michael Atieh 9/25/00
