EXHIBIT 10(p)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is executed to be effective March 17, 1998 between Clinicor,
Inc., a Nevada corporation (the "Corporation"), and Xxxxx Xxxxxxxx (the
"Employee").
W I T N E S S E T H:
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1. Employment. The Corporation hereby employs the Employee and the
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Employee hereby accepts such employment and agrees to perform the services
specified herein upon the terms and conditions hereinafter set forth.
2. Term. Subject only to the provisions for termination as hereinafter
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set forth, the term of this Agreement shall begin on the effective date hereof
and shall terminate on March 16, 1999. Unless either party gives the other
thirty (30) days written notice prior to the expiration of the initial or any
renewal term hereof, this Agreement shall automatically renew for four (4)
additional periods of one (1) year each.
3. Compensation. The Corporation shall pay to the Employee a minimum
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base salary of One Hundred Thirty Thousand and No/100 Dollars ($130,000.00) per
year, payable in equal bi-monthly installments, and net of applicable
withholdings. The Employee shall be entitled to receive such further
compensation in the form of bonuses and salary increases as shall be authorized
by the Board of Directors of the Corporation (the "Board") from time to time.
4. Benefits.
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(a) In addition to the direct remuneration provided for in the
preceding Section 3, the Employee shall be entitled to participate in and to
receive benefits consistent with those of other executive officers of the
Corporation. Such benefits shall include annual vacation time of no less then
four (4) weeks.
(b) The Corporation shall, simultaneously with the commencement of
the Employee's employment hereunder (or as soon thereafter as a meeting of the
Board may conveniently be convened, but in no event later than March 31, 1998),
grant to the Employee options to purchase a total of one hundred fifty thousand
(150,000) shares of the Corporation's common stock. The exercise price
applicable to such options shall be the closing price of such stock on the Over-
the-Counter Bulletin Board on the business day immediately preceding the date of
grant. The options shall vest in five (5) equal annual increments on March 1 of
each year, commencing March 1, 1999, provided the Employee is still employed by
the Corporation on such dates. The options, if unexercised, shall terminate and
expire ninety (90) days after the termination of the Employee's employment by
the Corporation, and in any event no later than March 1, 2005. The Employee
understands and acknowledges that the grant of options as set forth above does
not constitute a promise by the Corporation to continue the term of the
Employee's employment hereunder beyond the term provided for in Section 2
hereof. The description of the terms and conditions of
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the options contained in this Section 4(b) is in all respects subject to and
qualified by the terms and conditions of the Corporation's 1995 Employee,
Consultant and Director Stock Option Plan and the standard form of Option
Agreement thereunder, each of which has been supplied to the Employee.
5. Duties. The Employee has been elected Senior Vice President of
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Marketing and Business Development of the Corporation, and she agrees to perform
the duties normally incidental to this office for as long as she holds the
office. The Employee acknowledges that she occupies this office at the
discretion of the Board and that her title may be changed at any time and that
such change will not constitute a breach of this Agreement. The Employee agrees
to perform for the Corporation such duties and responsibilities as may
reasonably be prescribed from time to time by the Board, and the Corporation
agrees to provide the Employee with such office supplies and support, including
a cellular phone, as are normally incidental to such duties.
6. Extent of Service. The Employee shall devote her full time, attention
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and energy to the business of the Corporation and shall faithfully,
industriously, and to the best of her ability perform all of the duties that may
be required of her as an employee and as an officer of the Corporation. The
Employee shall not directly or indirectly render any services to any other
person or organization, whether for compensation or otherwise, without the prior
consent of the Board. The Employee will not engage in
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activities, businesses, or investments that would in any way conflict with the
best interests of the Corporation.
7. Confidentiality and Non-Solicitation.
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(a) The Employee recognizes and acknowledges that she will have access
to certain Confidential Information of the Corporation (as hereinafter defined)
and that such information constitutes valuable, special and unique property of
the Corporation. The Employee will not, during or after the term of her
employment, directly or indirectly divulge, disclose or otherwise communicate or
make available any of such Confidential Information to any person, firm,
corporation, association, or other entity for any reason or purpose whatsoever
without the prior written consent of the Corporation. Confidential Information
includes without limitation each of the following with respect to the
Corporation: (i) financial information; (ii) information concerning marketing
plans or strategies; (iii) information concerning sponsors, investigators and
other third parties with whom the Corporation has contacts; (iv) information
concerning the Corporation's markets and potential markets; (v) information
concerning business methods and practices; (vi) client proprietary information,
contracts, proposals, work in process and research; (vii) information concerning
development or marketing programs or plans or client lists; and (viii) any other
information that the Corporation reasonably treats and identifies as
confidential. Confidential Information shall also include without limitation any
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information or materials received by the Corporation from third parties in
confidence (or subject to nondisclosure or similar agreements). Notwithstanding
the foregoing, Confidential Information does not include information the
Employee had prior to her employment with the Corporation or information that is
generally available to the public or in the pharmaceutical industry. The
Employee should consider all information coming into her possession by virtue of
her employment relationship with the Corporation to be Confidential Information
unless it is freely available to the public.
(b) The Employee shall not, during her employment with the
Corporation or for a period of six (6) months thereafter, directly or indirectly
solicit, or interfere with the Corporation's relationships with, or entice away
from the Corporation, any sponsor, any investigator with whom the Employee has
had a relationship during her employment at the Corporation or any other person,
firm or corporation who has at any time during the term of the Employee's
employment hereunder done business with the Corporation; provided, however,
nothing herein shall prevent the Employee from doing business with any person,
firm or entity with whom she has had a business relationship prior to the
Employee's employment with the Corporation. The Employee shall not, during the
term of her employment with the Corporation or for a period of six (6) months
thereafter, offer employment to or procure employment for any person who has at
any time during the term of
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the Employee's employment hereunder been employed by the Corporation.
8. Materials. All data, protocols, listings, charts, drawings, records,
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documents, programs, software, documentation, memoranda, journals, notebooks,
records, files, drafts, specifications and similar items relating to the
business of the Corporation or its customers, whether compiled by the Employee,
furnished to the Employee by the Corporation, its customers or clients or
otherwise made accessible to the Employee or coming into her possession, while
the Employee is in the employ of the Corporation, and copies of any such items,
shall be and remain the sole and exclusive property of the Corporation or its
customers or clients, as the case may be, and none of such items shall be
removed from the Corporation's business premises by the Employee without the
prior consent of the Corporation, except as required in the course of her
employment. All of such items shall be returned to the Corporation by the
Employee upon the termination of her employment with the Corporation for
whatever reason. The provisions of this Section 8 shall not, however, prohibit
the Employee from using any materials published by the Corporation and made
available (without breach of this Section) to the general public.
9. Termination.
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(a) Death or Disability. Subject to any broader rights granted the
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Employee under applicable law, including under the
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Family Medical Leave Act or under the Americans with Disabilities Act, in the
event of the Employee's death or in the event of her disability for a period in
excess of one (1) month during the term of this Agreement, the Corporation may
terminate this Agreement, in which event the Corporation shall pay to the
Employee or to her heirs or personal representatives the amount of compensation
and benefits accrued under Sections 3 and 4 hereof through the date of death or
(in case of disability) through the end of the one-month period commencing with
the onset of disability. The Corporation shall thereafter have no further
liability under this Agreement to the Employee or her heirs or personal
representatives. "Disability" for purposes hereof shall be deemed to have
occurred if the Employee because of injury or sickness is unable to perform each
of the material duties of her occupation.
(b) Termination with Cause by the Corporation. At any time during the
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term hereof, the Corporation shall have the right to terminate for cause the
Employee's employment under this Agreement upon the occurrence of any of the
following events by the Employee:
(i) willful or repeated violation of any of the provisions of
this Agreement, which continues after written notice and ten (10) days in
which to cure;
(ii) dishonesty, fraud, embezzlement, defalcation, conviction of
any felonious offense or persistent neglect of her material duties
hereunder; or
(iii) intentionally imparting Confidential Information, as
defined in Section 7, to competitors or
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to other third parties other than in the course of carrying out her
corporate duties.
Such termination shall be effective immediately upon the delivery to the
Employee by the Corporation of written notice of such termination. In the event
of a termination of the Employee's employment for cause in accordance with the
provisions of this Section 9(b), the Corporation shall pay to the Employee on
the date of termination all compensation and benefits accrued under Sections 3
and 4 of this Agreement to the date of such termination. Thereafter, the
Corporation shall have no further obligation to the Employee.
(c) Termination with Cause by the Employee. At any time during the
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term hereof, the Employee shall have the right to terminate her employment
hereunder for cause upon the failure of the Corporation to comply with any of
the material terms of this Agreement. Such termination shall be effective
immediately upon the delivery to the Corporation by the Employee of written
notice of such termination. In the event of a termination of the Employee's
employment for cause in accordance with the provisions of this Section 9(c), the
Corporation shall pay to the Employee on the date of termination all
compensation and benefits accrued under Sections 3 and 4 of this Agreement to
the date of such termination. Thereafter, neither the Corporation nor the
Employee shall have any obligation to the other hereunder, except as accrued
prior to the date of termination or as set forth in Sections 7 and 8 hereof.
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10. No Termination Without Cause by the Corporation. The Corporation
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shall not be entitled to terminate the Employee's employment during either the
initial or any renewal term hereof without cause. The Corporation may, however,
with or without cause, suspend the performance of the Employee's duties
hereunder, such suspension to be effective immediately upon written notification
by the Corporation to the Employee. In such event, the Employee shall
continue to be an employee of the Corporation through the conclusion of the
initial or renewal term during which suspension of duties occurs, and the
Employee shall be entitled during such initial or renewal term to receive all
compensation and benefits provided for herein, including any benefits related to
the vesting of options pursuant to any Stock Option Agreement to which the
Employee is a party.
11. Invocation of Non-Compete by Previous Employer.
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(a) The Employee and the Corporation acknowledge that, as of the date
hereof, both have reason to believe that the Employee's former employer,
Quintiles, Inc. (the "Former Employer"), will not elect to invoke the
non-compete provisions of Section 7(a) of one certain letter agreement dated
April 10, 1996 between the Former Employer and the Employee (the "Letter
Agreement").
(b) If, notwithstanding the parties' mutual understanding, the Former
Employer does elect to invoke such provision by making one (1) or more payments
to the Employee in the
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amounts set forth in Section 7 of the Letter Agreement, then, at the option of
either party hereto, this Agreement shall immediately terminate and be of no
further force or effect whatsoever, except that the provisions of Sections 7(a),
8 and 11(c) hereof shall survive termination. Moreover, if the Former Employer
and the Employee enter into any agreement pursuant to which the Employee
voluntarily agrees to be bound by contractual confidentiality, non-competition
or non-solicitation provisions that are different in any material respect from
those set forth in the draft agreement transmitted to the Former Employer by the
Employee on March 9, 1998 (a copy of which has been delivered to counsel for the
Corporation) and to which the Corporation has not expressly consented, then, at
the option of the Corporation, this Agreement shall terminate and be of no
further force or effect whatsoever, except that the provisions of Sections 7(a)
and 8 hereof shall survive such termination.
(c) In the event the Former Employer asserts any claim or brings any
proceedings (including but not limited to arbitration or court action) against
the Employee pursuant to the non-compete, non-solicitation and non-disclosure
provisions contained in the Letter Agreement, the Corporation agrees to
indemnify and hold harmless the Employee from any such claims or proceedings,
including but not limited to any liability for such claims and any expenses,
including attorneys' fees, incurred in connection with the defense of such
claims or proceedings. Notwithstanding the
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foregoing, the claims and proceedings indemnified against hereunder (i) include
only those claims or proceedings that are directly related to and arise out of
the employment of the Employee by the Corporation and (ii) exclude claims or
proceedings that arise out of the Employee's knowing or grossly negligent
violation of this Agreement or the Letter Agreement, as modified by any
subsequent agreement between the Employee and the Former Employer. Moreover,
nothing in this Section 11(c) in any way limits the ability of the Corporation
to terminate this Agreement pursuant to Section 11(b) above.
(d) Each of the Corporation and the Employee acknowledges that the
Employee is bound by the non-compete, non-solicitation and non-disclosure
provisions of the Letter Agreement. The Employee agrees not to take any action
that would be prohibited under the Letter Agreement, as modified by any
subsequent agreement between the Employee and the Former Employer, and the
Corporation agrees not to cause or request the Employee to take any such action.
12. Notices. Any notice required or permitted to be given under this
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Agreement shall be sufficient if in writing and if delivered (including delivery
by private courier or facsimile transmittal) or sent by registered or certified
mail, postage prepaid, return receipt requested to the Employee at 0000 Xxxxxx'x
Xxxxx Xxxx, Xxxxxx, Xxxxx 00000, or to the Corporation at 0000 Xxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, or to such other
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address as either party shall designate by written notice to the other. Such
notice shall be effective as of the earlier of the date received or, if mailed
as described above, three days after the date of mailing.
13. Assignment. This Agreement may not be assigned by either party hereto
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without the consent of the other party. Subject to the foregoing, the rights
and obligations of the Corporation under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the
Corporation, and the rights of the Employee under this Agreement shall inure to
the benefit of the heirs and personal representatives of the Employee.
14. Miscellaneous.
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(a) This Agreement shall be subject to and governed by the laws of the
State of Texas and is performable in Xxxxxx County, Texas.
(b) Whenever the context requires, the gender of all words used herein
shall include the masculine, feminine and neuter, and the number of all words
shall include the singular and plural. Titles of sections are for convenience
only and neither limit nor amplify any of the provisions contained herein.
(c) Upon execution of this Agreement, the right, duties and
obligations of the parties hereto with respect to the matters set forth herein
shall be governed solely by the provisions of this Agreement, and all
representations, warranties, terms and conditions with respect to such matters
which may be contained in
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any prior writing executed by any of the parties shall be null and void and of
no further force and effect.
(d) Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement, or the application thereof to any party
hereto or under any circumstances, shall be invalid or unenforceable to any
extent under applicable law, such provision shall be deemed severed from this
Agreement with respect to such party or such circumstance, without invalidating
the remainder of this Agreement or the application of such provision to other
persons or circumstances, and a new provision shall be deemed to be substituted
in lieu of the provision so severed which new provision shall, to the extent
possible, accomplish the intent of the parties hereto as evidenced by the
provision so severed.
(e) In the event of a breach or threatened breach by the Employee of
any provision of this Agreement, then in addition to any other available remedy
to which the Corporation may be entitled, including the recovery of damages, the
Corporation shall be entitled to an injunction restraining the Employee from
breaching or attempting to breach, in whole or in part, any of the provisions of
this Agreement. In addition, in the event of a breach by either party of any
provision of this Agreement, the non-breaching or (in the event of litigation)
the prevailing party shall be entitled to recover from the other party all
reasonable
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costs and attorneys' fees incurred by the non-breaching or prevailing party in
seeking any of such remedies.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date set forth above.
CLINICOR, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx X. Xxxxxx, President
"CORPORATION"
/s/ Xxxxx Xxxxxxxx 3-17-98
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XXXXX XXXXXXXX
"EMPLOYEE"
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