Exhibit 10.9
EMPLOYMENT AND NON-COMPETITION AGREEMENT
BETWEEN
XXXXX X. XXXXXX
AND
PHARMACEUTICAL RESEARCH ASSOCIATES, INC.
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 27th day
of October, 2004 (the "Effective Date"), by and between Pharmaceutical Research
Associates, Inc., a Virginia corporation ("Employer"), having its principal
office in the Commonwealth of Virginia, which is a wholly-owned subsidiary of
PRA International, a Delaware corporation ("PRA International"), and Xxxxx X.
Xxxxxx ("Employee").
WHEREAS, Employer and Employee desire to enter into an agreement for
the employment by Employer of Employee commencing on the Effective Date.
WHEREAS, by entering into this Agreement, the terms of the Employee's
employment with the Employer will be governed by the terms and conditions of
this Agreement and any other prior agreement between the Employee and the
Employer relating to the Employee's employment with the Employer or any of its
affiliated entities is superseded by the terms of the Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth below, which consideration is acknowledged by both parties
to be good and sufficient, the parties hereto agree as follows:
1. Position. Employer hereby agrees to employ Employee as of the
Effective Date (as defined herein) and Employee hereby accepts employment as of
the Effective Date in the position of EXECUTIVE VICE PRESIDENT with appropriate
title, rank, status and responsibilities as determined from time to time by the
President and CEO of Employer ("President and CEO") upon the terms and
conditions hereinafter set forth.
2. Employment Period.
(a) The period of employment under this Agreement shall begin on the
Effective Date and shall end on February 28, 2006, unless terminated sooner
pursuant to Section 7 of this Agreement.
(b) The period during which Employee is employed under the terms of
this Agreement is the "Employment Period."
3. Duties. The President and CEO shall have the power to determine the
specific duties that shall be performed by Employee and the means and manner by
which those duties shall be performed, but such duties shall be consistent with
the executive position of Employee.
(a) During the Employment Period, Employee agrees to use his best
efforts in the business of Employer and to devote his full time, skill,
attention and energies to the business of Employer. Employee shall not be
engaged in any other business activity which shall be competitive with the
business of Employer or which may (i) interfere with Employee's ability to
discharge his responsibilities to Employer; or (ii) detract from the business of
Employer. Employee shall not:
(i) work either on a part-time or independent contracting
basis for any other company, business or enterprise without the prior
written consent of the President and CEO; or
(ii) serve on the board of directors or comparable governing
body of any other material business, civic or community corporation or
similar entity without the prior written consent of the President and
CEO (excluding those positions Employee holds and boards of directors
on which Employee serves as of the date of this Agreement, which
positions and boards, if any, are listed on Exhibit A hereto), such
consent which shall not be unreasonably withheld.
(b) Employee agrees to use his reasonable efforts to impart his
skill and knowledge relating to the business of Employer to such individuals as
are designated by Employer, and to train such individuals in the aspects of the
business with which Employee is familiar. In addition, at the request of
Employer and without additional compensation, Employee shall use his best
efforts to record and document his knowledge relating to the business of
Employer.
4. Compensation. For all services rendered by Employee under this
Agreement, for, and in consideration of, Employee's agreements and undertaking
contained in this Agreement (including, without limitation, those contained in
Sections 9 and 10 below), and, subject to Sections 7 and 8 below, during the
Employment Period, Employer shall provide Employee with the following:
(a) Base Salary. Employer shall pay to Employee, in equal bi-monthly
installments, a base salary of USD$200,000 per year, less relevant deductions.
Employee shall be eligible for salary increases, which may be based on
performance and/or competitive market factors, as determined under the
provisions of any salary policy of Employer that is generally applicable to
Employer's employees, provided that any such increases shall be reviewed and
approved in advance by the Compensation Committee of the Board of Directors of
Employer (the "Board"). Employee shall be
2
eligible for such other increases in compensation as are otherwise imposed by
the Board, in its discretion, from time to time.
(b) Bonus. Employee shall participate in an Executive Bonus Plan
approved by the Board with a minimum annual bonus target of USD$135,000 less
relevant deductions. The performance criteria will be determined by the
Compensation Committee of the Board.
(c) Long Term Incentives. Employee shall participate under the terms
of the PRA International 2004 Incentive Award Plan ("Incentive Award Plan"),
according to the terms set forth in Exhibit B.
(d) Review. It is understood and agreed that the Compensation
Committee of the Board will review compensation matters of Employer on a regular
basis, and will (on at least an annual basis) set all annual bonus targets,
salaries and benefits in which Employee shall be eligible to participate.
5. Benefits. Employee shall be eligible to participate in Employer's
standard benefits programs, which presently include health, life and disability
insurance, and those additional benefits (the "Additional Benefits") currently
offered to Employer's executive staff, including club membership and monthly car
allowance, as described in Exhibit C. It is agreed that the nature and amount of
the Additional Benefits, if any, shall be determined from time to time by the
Compensation Committee of the Board, in its discretion, provided that no
Additional Benefits (as defined above) will be materially reduced. Employee
shall be entitled to paid vacation in accordance with the Employer's vacation
policies in effect for executive staff during the Employment Period. Employee
shall be covered by the holiday policy of the Employer and, by any other pension
or retirement plan, disability benefit plan or any other benefit plan or
arrangement of Employer determined by the Board to be applicable to Employee.
6. Expense Reimbursement. Subject to such conditions as Employer may
from time to time determine and pursuant to Employer's travel policy then in
place for executives, Employer shall reimburse Employee for reasonable expenses
incurred by Employee in connection with the business of Employer and the
performance of Employee's duties hereunder.
7. Termination. This Agreement may be terminated under the following
circumstances, having the consequences described in Sections 7 and 8:
(a) Death of Employee. This Agreement shall terminate immediately
upon the death of Employee. Should this Agreement be terminated pursuant to this
Section 7(a), Employee shall be entitled to Termination Payments as provided for
in Section 7(g).
(b) Termination by Employer for Disability of Employee. If during
the Employment Period, Employee shall be prevented from performing his duties
3
for a continuous period of one hundred and eighty (180) days by reason of
disability that renders Employee physically or mentally incapable of performing
substantially all of his duties under this Agreement (excluding infrequent and
temporary absences due to illness), Employer may terminate Employee's employment
hereunder. If after a period of disability commences (but prior to termination
of Employee's employment), Employee returns to work for a period of at least
twenty (20) consecutive work days, the period of disability shall terminate and
not be counted towards any period of subsequent disability. For purposes of this
Agreement, Employer, upon the advice of a qualified and impartial physician, at
Employer's expense, shall determine whether Employee has become physically or
mentally incapable of performing substantially all of his duties under this
Agreement. Employer shall give Employee (or his guardian, as applicable) thirty
(30) days' written notice of termination of the Employment Period under this
Section 7(b). Should the Employee be terminated pursuant to this Section 7(b),
Employee shall be entitled to Termination Payments as provided for in Section
7(g).
(c) Termination by Employer for Cause. Employer may terminate
Employee's employment at any time for Cause. For purposes of this Agreement,
"Cause" includes, but is not limited to: (i) a material breach of this Agreement
by Employee (where Employee fails to cure such breach within ten (10) business
days after being notified in writing by Employer of such breach); (ii)
Employee's willful failure to perform his material assigned duties without an
excuse that is reasonably acceptable to Employer; (iii) Employee engages in an
act (or causes an act) that has a material adverse impact on the reputation,
business, business relationships or financial condition of Employer; (iv) the
conviction of or plea of guilty or nolo contendre by Employee to a felony or any
crime involving moral turpitude, fraud or misrepresentation; (v)
misappropriation or embezzlement by Employee of funds or assets of Employer; or
(vi) Employee's willful refusal to perform specific directives of the President
and CEO which are consistent with the scope, ethics and nature of Employee's
duties and responsibilities hereunder. Notwithstanding the foregoing, "Cause"
shall not include a situation whereby Employer asks Employee to be based at any
office or location or to relocate to any location other than within 20 miles of
Employee's then current location and Employee declines to do so. Termination by
Employer for Cause hereunder shall not abrogate the rights and remedies of
Employer in respect of the breach or wrongful act giving rise to such
termination. In the event of termination by Employer for Cause, Employee shall
receive any and all accrued but unpaid base salary compensation (including
accrued paid time off, as applicable) due to Employee as of the Termination
Date.
(d) Termination by Employer without Cause. This Agreement may be
terminated by Employer for reasons other than death, disability or Cause upon
thirty (30) days' written notice given to Employee. Should the Employee be
terminated pursuant to this Section 7(d), Employee shall be entitled to
Termination Payments as provided for in Section 7(g).
4
(e) Termination by the Employee without Good Reason. This Agreement
may be terminated by Employee upon sixty (60) days' written notice given to
Employer. The sixtieth (60th) day after giving of such notice shall be the
Employee's Termination Date. In the event of termination by Employee without
Good Reason, Employee shall receive any and all accrued but unpaid base salary
compensation (including accrued paid time off, as applicable) due to Employee as
of the Termination Date.
(f) Termination by Employee for Good Reason. This Agreement may be
terminated by Employee at any time for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean (i) any material breach of this Agreement by
Employer (where Employer fails to cure such breach within ten (10) business days
after being notified in writing by Employee of such breach); (ii) the
diminution, without Employee's written consent, of Employee's position, title,
authority, duties or responsibilities as indicated in this Agreement; or (iii)
the Company requiring the Employee, without Employee's written consent, to be
based at any office or location or to relocate to any location other than within
20 miles of Employee's then current location. Termination by Employee hereunder
in this Section 7(f) shall not abrogate the rights and remedies of Employee in
respect of the breach giving rise to such termination.
(g) Termination Payments.
A. If Employee's employment is terminated pursuant to Section
7(a) (Employee's Death), 7(b) (by Employer for Employee's Disability), 7(d) (by
Employer without Cause) or 7(f) (by Employee for Good Reason) (each of the
circumstances in this Section 7(g)(A) being known as a "Termination Event"),
Employer shall provide Employee (or, in the case of his death, his estate, heirs
or legal representatives) the following (collectively, the "Termination
Payments"):
(i) any and all accrued but unpaid base salary compensation
(including accrued paid time off, as applicable) due to
Employee as of the date on which the Employment Period ends
(the "Termination Date"), which shall be paid on the
Termination Date; and
(ii) Employee's full base salary (payable bi-monthly at the
same time Employee would otherwise receive such base salary if
Employee were still employed by Employer) for twelve (12)
months after the Termination Date; and
(iii) health benefits for twelve (12) months after the
Termination Date pursuant to COBRA coverage (reimbursed by
Employer for the first twelve (12) months) under Employer's
health benefit plan under which Employee was receiving
coverage during the Employment Period.
5
B. If a Termination Event (other than the death of Employee as
specified in Section 7(a)) occurs within twelve months after a Change in
Control, then Employee is entitled to the Termination Payments as stated in
Section 7(g)(A)(i) (ii) and (iii) above, except that the period for which salary
and benefits are provided in Sections 7(g)(A)(ii) and (iii) shall be twenty-four
(24) months, and all payments to be made pursuant to those sections shall be
paid to Employee in a lump sum within fifteen (15) days after the Termination
Event. For purposes of this Section and this Agreement, "Change in Control"
shall mean: (i) the sale of all or substantially all of the assets of PRA
International; or (ii) the consummation of a merger or consolidation of PRA
International with any other corporation other than (A) a merger or
consolidation which would result in the voting securities of PRA International
outstanding immediately prior thereto continuing to represent more than fifty
percent (50%) of the combined voting power of the voting securities of PRA
International, or such surviving entity, outstanding immediately after such
merger or consolidation, or (B) a merger or consolidation effected to implement
a recapitalization of PRA International (or similar transaction) in which no
"person" (as defined below) acquires more than thirty percent (30%) of the
combined voting power of PRA International's then-outstanding securities; or
(iii) any "person," as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than (1)
PRA International or (2) any corporation owned, directly or indirectly, by PRA
International or the shareholders of PRA International in substantially the same
proportions as their ownership of stock in PRA International), becomes after the
Effective Date the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of PRA International
representing thirty percent (30%) or more of the combined voting power of PRA
International's then outstanding securities.
C. Employer's obligation to make any Termination Payments
provided in Section 7(g)(A) and (B) above is conditioned upon Employee's
execution and non-recision of a general release in the reasonable form provided
by Employer.
(h) Tax Provisions. In the event that any payments under this
Agreement or any other compensation, benefit or other amount from Employer for
the benefit of Employee are subject to the tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") (including any applicable
interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment")
shall be reduced (except for required tax withholdings) and Employer shall pay
to Employee by the earlier of the date such Excise Tax is withheld from payments
made to Employee or the date such Excise Tax becomes due and payable by
Employee, an additional amount (the "Gross-Up Payment") such that the net amount
retained by Employee (after deduction of any Excise Tax on the Parachute
Payments, taxes based upon the Tax Rate (as defined below) upon the payment
provided for by this Section 7(h) and Excise Tax upon the payment provided for
by this Section 7(h)), shall be equal to the amount Employee would have received
if no Excise Tax had been imposed. A tax counsel chosen by the Employer's
independent auditors, provided such person is reasonably acceptable to the
6
Employee ("Tax Counsel"), shall determine in good faith whether any of the
Parachute Payments are subject to the Excise Tax and the amount of any Excise
Tax, and Tax Counsel shall promptly notify Employee of its determination.
Employer and Employee shall file all tax returns and reports regarding such
Parachute Payments in a manner consistent with Employer's reasonable good faith
determination. For purposes of determining the amount of the Gross-Up Payment,
Employee shall be deemed to pay taxes at the Tax Rate applicable at the time of
the Gross-Up Payment. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time a
Parachute Payment is made, Employee shall repay to Employer promptly following
the date that the amount of such reduction in Excise Tax is finally determined
the portion of the Gross-Up Payment attributable to such reduction (without
interest). In the event that the Excise Tax is determined to exceed the amount
taken into account hereunder at the time a Parachute Payment is made (including
by reason of any payment the existence or amount of which cannot be determined
at the time of the Gross-Up Payment), Employer shall pay the Employee an
additional amount with respect to the Gross-Up Payment in respect of such excess
(plus any interest or penalties payable in respect of such excess) at the time
that the amount of such excess is finally determined. Employer shall reimburse
Employee for all reasonable fees, expenses, and costs related to determining the
reasonableness of Employer's position in connection with this paragraph and
preparation of any tax return or other filing that is affected by any matter
addressed in this paragraph, and any audit, litigation or other proceeding that
is affected by any matter addressed in this Section 7(h) and an amount equal to
the tax on such amounts at Employee's Tax Rate. For the purposes of the
foregoing, "Tax Rate" means the Employee's effective tax rate based upon the
combined federal and state and local income, earnings, Medicare and any other
tax rates applicable to Employee, all at the highest marginal rate of taxation
in the country and state of Employee's residence on the date of determination,
net of the reduction in federal income taxes which could be obtained by
deduction of such state and local taxes.
8. Survival of Sections of this Agreement. Without regard to
the reason for termination of this Agreement or the employment of Employee, and
notwithstanding anything contained in this Agreement to the contrary, it is
expressly understood and agreed that Employee's obligations under Sections 9,
10, 11 and 12 of this Agreement shall survive termination of this Agreement in
any and all events.
9. Confidential Information and Certain Property Matters.
(a) Employee recognizes that information, knowledge,
contacts and experience relating to the businesses, operations, properties,
assets, liabilities and financial condition of Employer and the markets and
industries in which it operates, including, without limitation, information
relating to business plans and ideas, trade secrets, intellectual property,
know-how, formulas, processes, research and development, methods, policies,
materials, results of operations, financial and statistical data, personnel data
and customers in and related to the markets and industries in which Employer
operates ("Confidential Information"), is considered by Employer to be valuable,
secret, confidential and proprietary. Employee hereby acknowledges and agrees
that the
7
Confidential Information is valuable, secret, confidential and proprietary to
Employer, and further agrees that he shall not, at any time (whether during or
after the Employment Period), make public, disclose, divulge, furnish, release,
transfer, sell or otherwise make available to any person any of the Confidential
Information, or otherwise use or disclose any of the same or allow any of the
same to be used or disclosed for any purpose, other than as may be permitted to
Employee under this Agreement. Notwithstanding the foregoing, Employee may,
without violating this Section 9(a), disclose Confidential Information if (i)
such disclosure is required to comply with a valid court order or any
administrative law order or decree; (ii) Employee gives Employer advance written
notice of the required disclosure so that Employer may, if it wishes, seek an
appropriate protective order; and (iii) Employee, in any event, requests that
any disclosed information be afforded confidential treatment, to the greatest
extent possible.
(b) Employee shall fully disclose to Employer all Inventions
made or conceived by him during the Employment Period that would be deemed
applicable, useful or otherwise beneficial to or in respect of the current
business of Employer, in whole or in part. "Inventions" include, but are not
limited to, customer list compilations, machinery, apparatus, products,
processes, results of research and development (including without limitation
results that constitute trade secrets, ideas and writings), computer hardware,
information systems, software (including without limitation source code, object
code, documentation, diagrams and flow charts) and any other discoveries,
concepts and ideas, whether patentable or not (including without limitation
processes, methods, formulas, and techniques, as well as improvements thereof or
know-how related thereto, concerning any present or prospective business
activities of Employer). Any and all Inventions shall be the absolute property
of Employer or its designees, and Employee acknowledges that he shall have no
interest whatsoever in such Inventions. At the request of Employer and without
additional compensation, Employee (i) shall make application in due form for
United States letters patent and foreign letters patent on such Inventions, and
shall assign to Employer all his right, title and interest in such Inventions;
(ii) shall execute any and all instruments and do any and all acts necessary or
desirable in connection with any such application for letters patent or in order
to establish and perfect in Employer the entire right, title and interest in
such Inventions, patent applications or patents; and (iii) shall execute any
instruments necessary or desirable in connection with any continuations,
renewals or reissues thereof or in the conduct of any related proceedings or
litigation. Except as authorized by Employer in writing, Employee shall not
disclose, directly or indirectly, to any person other than Employer, any
information relating to any Invention or any patent application relating
thereto.
(c) Employee hereby acknowledges and agrees that the work
performed by Employee pursuant to his employment by Employer will be
specifically ordered or commissioned by Employer, and that such work shall be
considered a "work for hire" as defined in the Copyright Revision Act of 1976
(the "Act"), granting Employer full ownership to the work and all rights
comprised therein. In addition, Employee hereby waives in favor of Employer any
and all moral rights in the work
8
contemplated by this Section 9(c) that Employer now has or in the future may
have. Should any work not fall within the definition of a "work for hire" as set
forth in such Act, Employee hereby transfers and assigns to Employer full
ownership of the copyright to the work and all rights comprised therein.
Employee shall sign all applications for registration of such copyright as are
requested by Employer, and shall sign all other writings and instruments and
perform all other acts necessary or desirable to carry out the terms of this
Agreement.
10. Non-Competition and Non-Solicitation
(a) Employee agrees that during the Employment Period and
for a period of twelve (12) months after Employee's employment with Employer
ceases, for whatever reason (the "Noncompetition Period"), Employee will not,
within the country where Employee's office with Employer was located at the
Termination Date, whether as owner, manager, officer, director, employee,
consultant or otherwise, be engaged or employed by a Competing CRO to provide
Customer Services that are the same or substantially similar to the Customer
Services that Employee performed for Employer at any time during the twenty-four
(24) months prior to the Termination Date.
Employer acknowledges and agrees that ownership by Employee of not more than one
percent (1.0%) of the shares of any corporation having a class of equity
securities actively traded on a national securities exchange or on the Nasdaq
Stock Market shall not be deemed, in and of itself, to violate the prohibitions
set forth in this section.
For the purposes of this Agreement, the term "CUSTOMER SERVICES" means any
product or service provided by Employer to a third party for remuneration,
including, but not limited to, on a contract or outsourced basis, assisting
pharmaceutical or biotechnology companies in developing and taking drug
compounds, biologics, and drug delivery devices through appropriate regulatory
approval processes, (i) during the Employment Period or (ii) about which
Employee has material knowledge and that Employee knows Employer will provide or
has contracted to provide to third parties during the twelve (12) months
following the Employment Period. "CUSTOMER" means any person or legal entity
(and its subsidiaries, agents, employees and representatives) about whom
Employee has acquired material information based on employment with Employer and
as to whom Employee has been informed that Employer provides or will provide
Customer Services. "COMPETING CRO" means any of the following entities and their
affiliates and successors to the extent that and for so long as those said
entities, affiliates, and successors directly compete with Employer in the
provision of Customer Services to Customers: Xxxxxxx River Laboratories
International, Inc., Covance Inc., ICON plc, Xxxxxx International Inc., MDS
Pharma Services, PAREXEL International Corporation, Pharmaceutical Product
Development, Inc., PharmaNet, Quintiles Transnational Corp., and United
HealthCare Corporation.
(b) Employee agrees that he shall not, during the
Noncompetition Period, directly or indirectly, whether as owner, manager,
officer, director, employee, consultant or otherwise, solicit the business of,
or accept business
9
from any Customer of Employer at the Termination Date, unless the business being
solicited or accepted is not in competition with or substantially similar to
Employer's Customer Services.
(c) Employee agrees that he shall not, during the
Noncompetition Period, directly or indirectly, solicit or induce (or attempt to
solicit or induce) to leave the employ of Employer or any of its affiliates for
any reason whatsoever any person employed by Employer or any of its affiliates
at the time of the act of solicitation or inducement.
(d) During and after the Employment Period, Employee agrees
not to disparage Employer or any of its affiliates. During and after the
Employment Period, the officers with whom Employer worked in any twenty four
(24) months prior to the Termination Date agree not to disparage the character
of Employee.
(e) Employee hereby specifically acknowledges and agrees
that the provisions of this Section 10 are reasonable and necessary to protect
the legitimate interests of Employer, and that Employee desires to agree to the
provisions of this Section 10. In the event that any of the provisions of this
Section 10 should ever be held to exceed the time, scope or geographic
limitations permitted by applicable law, it is hereby declared to be the
intention of the parties hereto that such provision be reformed to reflect the
maximum time, scope and geographic limitations that are permitted by such law.
(f) Employee hereby acknowledges and agrees that, owing to
the special, unique and extraordinary nature of the matters covered by this
Section 10, in the event of any breach or threatened breach by Employee of any
of the provisions hereof, Employer would suffer substantial and irreparable
injury, which could not be fully compensated by monetary award alone, and
Employer would not have adequate remedy at law. Therefore, Employee agrees that,
in such event, Employer shall be entitled to temporary and/or permanent
injunctive relief against Employee, without the necessity of proving actual
damages or of posting bond to enforce any of the provisions of this Section 10,
and Employee hereby waives the defenses, claims, or arguments that the matters
are not special, unique, and extraordinary, that Employer must prove actual
damages, and that Employer has an adequate remedy at law.
(g) Employee further agrees that the rights and remedies
described in this Section 10 are cumulative and shall be in addition to and not
in lieu of any other rights and remedies otherwise available under this
Agreement, or at law or in equity, including but not limited to monetary
damages.
(h) Notwithstanding any other provision of this Agreement,
Employee further agrees that in the event of any breach by Employee of any of
the provisions of this Section 10, all obligations and liabilities of Employer
under this
10
Agreement (including, but not limited to, Sections 6 and 7 hereof) shall
immediately terminate and be extinguished.
(i) Employee agrees that Employer shall have the right to
disclose this Agreement or its contents to any future employer of Employee for
the purpose of providing notice of the post-employment restrictions contained
herein. Employer shall provide Employee with written notice if and when Employer
discloses the existence of this Agreement to any future employer of Employee.
11. Records. Upon termination of this Agreement for any
reason, Employee shall promptly deliver to Employer all property of Employer
then in Employee's possession or under his control, including but not limited
to: (i) any and all correspondence, mailing lists, drawings, blueprints,
manuals, letters, records, notes, notebooks, reports, flow-charts, programs,
proposals, computer tapes, discs and diskettes; (ii) any and all documents
concerning or relating to Employer's business, clients, customers, investors or
lenders, or concerning products, processes or technologies used by Employer; and
(iii) any and all documents or materials containing or constituting Confidential
Information.
12. Arbitration. Except with respect to any attempt to obtain
preliminary injunctive relief to enforce the post-employment restrictive
provisions of this Agreement (in which case any such matter may be brought
initially in a court of competent jurisdiction for purposes of resolving any
request for preliminary injunctive relief), all disputes between Employer and
Employee hereunder, or otherwise arising out of the employment or termination of
employment of Employee, including but not limited to disputes arising under any
state or federal employment discrimination law, shall be settled by arbitration
pursuant to the rules of the American Arbitration Association, in Washington,
D.C. Arbitration hereunder shall be by a single arbitrator appointed by mutual
agreement of the parties. The single arbitrator shall have the authority to
summarily dismiss any claim or claims brought in arbitration prior to a hearing
on the merits. The award rendered by the arbitrator shall be conclusive and
binding upon the parties hereto. Each party shall pay its own expenses of
arbitration and the expenses of the arbitrator shall be equally shared.
13. Full Settlement; Mitigation, Costs after a Change in
Control. In no event shall Employee be obligated to seek other employment or
take any other action by way of mitigation of the amounts (including amounts for
damages for breach) payable to Employee under any of the provisions of this
Agreement, and such amounts shall not be reduced whether Employee obtains other
employment. In addition, following a Change in Control only, Employer's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which Employer
may have against Employee or others. Notwithstanding any other provisions in
this Agreement to the contrary, in the event that, following a Change in
Control, any successor in interest to Employer unsuccessfully contests and/or
challenges any of
11
Employer's rights under this Agreement, then the successor in interest to
Employer shall pay Employee's reasonable attorney's fees and costs incurred in
such contest or challenge.
14. Entire Agreement. This Agreement (together with Exhibits
A, B, and C hereto) supersedes and terminates any and all prior agreements or
contracts, written or oral, entered into between Employer and Employee with
regard to the subject matter hereof. Employee acknowledges and agrees that
Employee is not entitled to any salary, bonus, benefits, severance, deferred
compensation or similar payments from Employer or any of its affiliates except
as expressly set forth herein. This instrument contains the entire agreement
between Employer and Employee regarding the employment of Employee by Employer,
and any representation, promise or condition in connection therewith not in
writing shall not be binding upon either party. No amendment, alteration or
modification of this Agreement shall be valid unless in each instance such
amendment, alteration or modification is expressed in a written instrument duly
executed in the name of the party or parties making such amendment, alteration
or modification.
15. Severability. The provisions of this Agreement shall be
deemed severable, and if any part of any provision is held to be illegal, void,
voidable, invalid, nonbinding or unenforceable in its entirety or partially or
as to any party, for any reason, such provision may be changed, consistent with
the intent of the parties hereto, to the extent reasonably necessary to make the
provision, as so changed, legal, valid, binding and enforceable. If any
provision of this Agreement is held to be illegal, void, voidable, invalid,
nonbinding or unenforceable in its entirety or partially or as to any party, for
any reason, and if such provision cannot be changed consistent with the intent
of the parties hereto to make it fully legal, valid, binding and enforceable,
then such provision shall be stricken from this Agreement, and the remaining
provisions of this Agreement shall not in any way be affected or impaired, but
shall remain in full force and effect.
16. Governing Law. This Agreement is to be governed by and
interpreted under the laws of the state of Delaware, without regard to the
conflicts of laws provisions or rules of such State's law.
17. Headings; Form of Words. The headings contained in this
Agreement have been inserted for the convenience of reference only, and neither
such headings nor the placement of any term hereof under any particular heading
shall in any way restrict or modify any of the terms or provisions hereof. Terms
used in the singular shall be read in the plural, and vice versa, and terms used
in the masculine gender shall be read in the feminine or neuter gender when the
context so requires. The term "person" as used herein refers to a natural
person, a corporation, a limited liability company, a partnership, a joint
venture, or other entity or association, as the context requires.
18. Notices. All notices, requests, consents, payments,
demands and other communications required or contemplated under this Agreement
("Notices") shall
12
be in writing and (a) personally delivered; (b) deposited in the United States
mail, registered or certified mail, return receipt requested, with postage
prepaid; or (c) sent by Federal Express or other internationally recognized
overnight delivery service (for next business day delivery), shipping prepaid,
as follows:
If to Employer, to:
Pharmaceutical Research Associates, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, XX 00000
Attn: President and Chief Executive Officer
With a copy (which shall not constitute notice) to:
The Chairman of the Board at that person's then current
business address
If to Employee, to:
Xxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
or such other persons or address as any party may request by notice given as
aforesaid. Notices shall be deemed given and received at the time of personal
delivery or, if sent by U.S. mail, five (5) business days after the date mailed
in the manner set forth in this Section 18, or, if sent by Federal Express or
other nationally recognized overnight delivery service, one business day after
such sending.
19. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Employee and Employee's heirs and legal
representatives and Employer and its successors and assigns. Employee's rights
and obligations under this Agreement are personal to Employee and shall not be
assignable or transferable by Employee (except that Employee's rights may be
transferred upon his death by will, trust, or the laws of intestacy). Employer
shall require any successor (whether direct or indirect, by purchase, merger,
consolidation, share exchange or otherwise) to all or substantially all of the
business and/or assets of Employer to expressly assume in writing and agree to
perform this Agreement in the same manner and to the same extent that Employer
would be required to perform it if no such succession had taken place, except
that no such assumption and agreement will be required if the successor is bound
by operation of law to perform this Agreement. In this Agreement, the term
"Employer"
13
shall include any successor to Employer's business and assets that assumes and
agrees to perform this Agreement (either by agreement or by operation of law).
21. Cooperation. Each party to this Agreement agrees to
cooperate with the other party hereto to carry out the purpose and intent of
this Agreement, including without limitation the execution and delivery to the
appropriate party of all such further documents as may reasonably be required in
order to carry out the terms of this Agreement.
22. Waiver. Any waiver of any provision hereof (or in any
related document or instrument) shall not be effective unless made expressly and
in a writing executed in the name of the party sought to be charged. The failure
of any party to insist, in any one or more instances, on performance of any of
the terms or conditions of this Agreement shall not be construed as a waiver or
relinquishment of any rights granted hereunder or of the future performance of
any such term, covenant or condition, but the obligations of the parties with
respect thereto shall continue in full force and effect.
23. Indemnification. Employee shall be entitled to be
indemnified by Employer to the fullest extent permitted by the applicable state
law and consistent with Employer's Articles of Incorporation. Employer further
agrees to indemnify Employee to the extent permitted under applicable law for
all actions taken in good faith within the scope, and in the course, of
Employee's employment under this Agreement during the Employment Period for the
life of any claim.
[Signature Page to Follow]
14
IN WITNESS WHEREOF, the parties have executed this Agreement
the day and year first above written.
Employer: PHARMACEUTICAL RESEARCH
ASSOCIATES, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
Print Title: President and CEO
Employee: /s/ Xxxxx X. Xxxxxx
--------------------------------
Print Name Xxxxx X. Xxxxxx
15
EXHIBIT A
Positions and Boards of Directors on which Employee Serves as of the Date of
this Agreement
16
EXHIBIT B
Incentive Award Plan
Employee is eligible to participate, at Employee's election, in the
Incentive Award Plan as follows:
First, upon the initial public offering ("IPO") being effective and
following a 4-1 stock split, Employee will be granted 50,000 PRA International
stock options at the IPO effective strike price. All matters involving the PRA
International stock options, including but not limited to their vesting, their
exercise, and their termination will be governed by the terms of the Incentive
Award Plan and an option agreement to be entered into by Employee in a form
provided by PRA International.
Second, upon the IPO becoming effective and beginning in 2005 under the
PRA International Management Stock Purchase Plan ("MSPP"), Employee will be
provided the opportunity to purchase PRA International stock in the form of
Restricted Stock Units ("RSUs") with Employer matching in additional stock 100%
of the purchase amount. As part of the MSPP, Employee has the opportunity to
voluntarily purchase RSUs on a pre-tax basis by allocating and deferring a
portion of Employee's annual final cash bonus into the plan in advance of the
plan year. The deferral amount would be capped at a maximum of 50%. All matters
involving the MSPP will be governed by the terms of the MSPP plan documents.
17
EXHIBIT C
Additional Benefits
-------------------
Annual Car Allowance: USD$10,800
Annual Club Membership: USD$1,200
18
