EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT
(the “ Agreement
”) dated this 6th day of September, 2005, between inChord
Communications, Inc., an Ohio corporation with an office at
500 Olde Worthington Road, Westerville, Ohio 43082 (the
“ Employer ”), and R. Blane Walter, an
individual whose current residence is as reflected in the
Employer's records (the “ Executive
”).
WHEREAS , Ventiv Health, Inc. (“ Ventiv
”), Accordion Holding Corporation (“ AHC
”), the Employer and the shareholders of the Employer are
parties to that certain Acquisition Agreement dated as of the date
hereof (the “ Acquisition Agreement ”) pursuant
to which AHC has agreed to acquire all of the outstanding capital
stock of the Employer and the Executive has agreed to certain
non-competition obligations;
WHEREAS , in order to induce Ventiv and the Executive to
enter into the Acquisition Agreement, the parties are entering into
this Agreement simultaneously with the execution of the Acquisition
Agreement; and
WHEREAS , the parties wish to set forth the terms and
conditions upon which the Employer will employ the
Executive.
NOW THEREFORE , in consideration of the mutual covenants and
promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties agree as
follows:
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1.
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Term of
Employment; Title; Duties; Authority .
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(a)
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The Employer
hereby employs the Executive, and the Executive hereby accepts
employment with the Employer, upon the terms set forth in this
Agreement, effective beginning on the date (the “
Effective Date ”) of the Closing (as defined in the
Acquisition Agreement) and continuing until December 31, 2007
(the “ Termination Date ”). The Executive shall
serve as the President of the Employer during the term of his
employment under this Agreement with such authority, duties and
responsibilities as are commensurate with such position.
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(b)
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During the term
of his employment hereunder, the Executive shall report to the
Chief Executive Officer of Ventiv and to the Board of Directors of
Ventiv (the “ Ventiv Board ”). The Executive
shall not take or authorize to be taken any material action on
behalf of the Employer outside the ordinary course of the
Employer’s business consistent with the past practices of the
Employer, or that involves a material long-term commitment on
behalf of the Employer, without the prior approval of the Chief
Executive Officer of Ventiv. Notwithstanding the foregoing, Ventiv
will comply with, and Executive is an intended third-party
beneficiary of, Ventiv's obligations under Section 4.8 of the
Acquisition Agreement during the period in which the Executive is
employed hereunder.
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(a)
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During the term
of his employment hereunder, the Executive agrees to devote his
entire business time and attention to the performance of his duties
under this Agreement. He shall perform his duties to the best of
his ability and shall use his best efforts to further the interests
of the Employer. The Executive agrees to comply with his
obligations under Section 4.8 of the Acquisition Agreement during
the period he is employed hereunder. The Executive shall not,
during the term of his employment, unless otherwise agreed to in
advance in writing by the Employer and the Executive, seek or
accept other employment in any other capacity, or become
self-employed or be required by the Employer to devote any
significant time or energy on projects related to Ventiv or its
subsidiaries other than the Employer and its subsidiaries (other
than the devotion of a reasonable amount of time to Ventiv-level
management coordination and review, including participation in
meetings of division presidents). Notwithstanding any other
provision of this Section 2(a), it shall not constitute a breach of
the Executive’s obligations under this Section 2(a) to
(i) serve on corporate, civic or charitable boards or
committees, subject to Section 8 hereof, (ii) deliver lectures
or fulfill speaking engagements, subject to Section 9 hereof, or
(iii) manage personal investments, in each case so long as
such activities do not materially interfere with the
Executive’s performance of his duties to the Employer. It is
expressly understood and agreed that, to the extent that any such
activities are being conducted by the Executive as of the date of
this Agreement, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) in a
substantially similar manner and degree subsequent to the date of
this Agreement shall be deemed not to materially interfere with the
performance of his duties to the Employer under this Agreement. The
Executive shall not be required to be based at any office or
location outside the greater Columbus, Ohio metropolitan area or
relocate his residence.
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(b)
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The Executive
represents and warrants to the Employer that he is able to enter
into this Agreement and that his ability to enter into this
Agreement and to fully perform his duties hereunder are not limited
to or restricted by any agreements or understandings between the
Executive and any other person. For the purposes of this Agreement,
the term “person” means any natural person,
corporation, partnership, limited liability partnership, limited
liability company or any other entity of any nature.
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(a)
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The Employer
shall pay the Executive a base salary at an annualized rate of
$387,000, subject to such increases as may be approved by the
Executive and the Ventiv Board or the Compensation Committee
thereof (the “ Base Salary ”). The Base Salary
shall be payable periodically in accordance with the
Employer’s policies for executive personnel, less deductions
required by law or pursuant to the benefit plans and policies of
the Employer and its affiliates.
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(a)
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The Executive
shall be entitled to such medical and health benefits as shall be
made available generally to executive employees of Ventiv and its
subsidiaries.
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(b)
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The Executive
shall be entitled to four weeks of vacation during each year of
employment, to be prorated monthly for partial years. Such vacation
shall be taken at such time or times consistent with the needs of
the business of the Employer. The Executive shall be entitled to
sick leave and holidays in accordance with the policies of the
Employer.
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(c)
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Until the
Termination Date, for so long as the Executive is an officer or
director of the Employer, Ventiv or any of their respective
subsidiaries, Ventiv shall provide, at its expense,
director’s and officer’s insurance and indemnity
coverage covering the Executive, in each case on the same terms as
it provides to other officers and directors of Ventiv or its
subsidiaries.
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5.
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Reimbursement of Business Expenses
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The Employer shall reimburse the Executive in
accordance with Employer’s policies for all reasonable
out-of-pocket costs incurred or paid by the Executive in connection
with, or related to, the performance of his duties,
responsibilities or services under this Agreement, upon
presentation by the Executive of documentation, expense statements,
vouchers and/or such other supporting information as the Employer
may reasonably request.
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6.
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Death During
Employment; Disability .
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If the Executive dies during the term of his
employment or becomes disabled, the Employer shall pay to the
Executive or his estate the compensation that would otherwise be
payable to the Executive up to the date of death or disability. The
Executive’s employment shall terminate upon the occurrence of
such disability. Such termination shall not be deemed to be a
termination by the Employer for purposes of Section 7. For purposes
of this Agreement, “disabled” means suffering a
physical or mental incapacity as a result of which the Executive
becomes unable to continue to perform fully his duties, with
“reasonable accommodation,” as defined in the Americans
with Disabilities Act and applicable state laws, hereunder for 60
business days in any 12-month period.
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7.
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Termination;
Right to Retain Employees .
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(a)
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Prior to the
Termination Date, the Executive’s employment may be
terminated by the Employer only (i) for cause, (ii) in the event
the Employer fails to achieve the performance measures specified on
Schedule I to this Agreement or (iii) in accordance with the
provisions of clause (c)(vi) of Section 4.8 of the Acquisition
Agreement.
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(c)
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For the
purposes of this Agreement, “cause” shall mean any of
the following: (i) a material breach by the Executive of this
Agreement, including without limitation the provisions of Section 8
or 9 hereof, or Section 4.8 of the Acquisition Agreement which, to
the extent susceptible of cure, is not cured within ten business
days after written notice (or any shorter notice period reasonably
necessary to avoid material harm to the Employer or Ventiv) that
identifies with reasonable specificity the manner in which the
Employer believes the Executive has breached, (ii) the Executive
willfully engaging in misconduct which is materially injurious to
the Employer or any of its Affiliates (including Ventiv), (iii) the
Executive’s willful gross neglect of his duties for which he
is employed or refusal or failure to follow the lawful directives
of the Chief Executive Officer of Ventiv in any material respect
(to the extent such directives are consistent with Section 4.8 of
the Acquisition Agreement), in either case which, to the extent
susceptible of cure, is not cured within ten business days after
written notice thereof (or any shorter notice period reasonably
necessary to avoid material harm to the Employer or Ventiv) that
identifies with reasonable specificity the willful gross neglect or
failure to follow directives, (iv) the Executive’s conviction
of a felony or any misdemeanor involving dishonesty, fraud or moral
turpitude or the entry of a guilty or nolo contendere plea with
respect thereto or (v) any purported resignation by the Executive
other than as expressly permitted by this Agreement. For purposes
of this Section 7(c), no act or failure to act on the part of the
Executive shall be considered “willful” unless it is
done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s act or
omission was in the best interests of the Employer. Any act, or
failure to act, based upon express authority given pursuant to the
written direction of the Chief Executive Officer of Ventiv or the
Ventiv Board with respect to such act or omission shall be presumed
to be done, or omitted to be done, by the Executive in good faith
and in the best interests of the Employer. The termination of the
Executive’s employment for cause shall not be deemed to be
effective unless and until Ventiv’s Chief Executive Officer
finds (after reasonable notice, specifying the particulars thereof
in reasonable detail, is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be
heard before such person), that, in the good faith opinion of such
person, the Executive is guilty of the conduct described in
subparagraph (i), (ii), (iii), (iv) or (v) above.
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(d)
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The Executive
may terminate his employment prior to the Termination Date for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean
(i) the assignment to the Executive of any duties materially
inconsistent with the Executive's position as President (including
status, offices, titles and reporting requirements), authority,
duties or responsibilities, or any other action by the Employer
which results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose any action
not taken in bad faith and which is remedied by the Employer within
ten business days after receipt of wri
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