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EXHIBIT 10.12
MANAGING DIRECTOR EMPLOYMENT AGREEMENT
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THIS MANAGING DIRECTOR EMPLOYMENT AGREEMENT (the "Contract")
is made and effective as of the date indicated below by and between
DataTRAK Deutschland GmbH, Am Probsthof 80, 53121 Bonn (the "Company")
and
Xx. Xxxxxxxx Xxxxx, Xxxxxxxxxx Xxxxx 000, 00000 Xxxx.
WITNESSETH:
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WHEREAS, based on his employment contract dated January 13,
1998, Xx. Xxxxx is employed with the Company since January 1, 1998, as Manager
Operations; and
WHEREAS, since the parties entered into the employment
contract dated January 13, 1998, the nature and scope of Xx. Xxxxx'x
responsibilities has changed; and
WHEREAS, by shareholders' resolution of February 23, 1999,
Xx. Xxxxx was appointed as Managing Director (Geschaftsfuhrer) of the Company
with sole signatory power; and
WHEREAS, the Company and Xx. Xxxxx desire to terminate the
employment contract dated January 13, 1998, and enter into an agreement
expressly indicating the new terms and conditions of their relationship.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the Company and the Xx. Xxxxx agree as follows:
1. DUTIES AND REPRESENTATION. The Company employs Xx. Xxxxx as
Managing Director (Geschaftsfuhrer). Xx. Xxxxx shall perform his duties in
accordance with the instructions of the shareholders' meeting and in compliance
with this managing director employment contract (the "Contract"), the Articles
of Association of the Company and the applicable legal provisions.
1.1 PERFORMANCE OF DUTIES. During the Term of this Contract,
as those terms are defined herein, Xx. Xxxxx shall at all times, faithfully,
industriously and to the best of his abilities, perform all duties that
reasonably may be required of him by virtue of his position. Xx. Xxxxx shall
devote his full business time and efforts to the affairs of the Company. Xx.
Xxxxx shall require the prior written approval of the shareholders' meeting for
any compensated or
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uncompensated side activities (Nebentatigkeit). This shall also apply for
positions on a supervisory board, advisory board or similar boards.
1.2 REPRESENTATION. Xx. Xxxxx shall be entitled to
represent the Company alone. However, Xx. Xxxxx must always comply with the
applicable DataTRAK internal control procedures and practices.
Notwithstanding the approval requirements pursuant to the Articles of
Association, Xx. Xxxxx shall require the prior written approval of the
shareholders' meeting for the following transactions, unless they have already
been approved by the shareholders' meeting in the annual budget:
- the granting and revocation (unless in case of imminent danger)
of Prokura or other general Powers of Attorney,
- any measure which significantly changes the structure of the Company
or outside the object of the Company, including the cessation of
existing lines of business and areas of business activity of the
Company,
- the sale of the Company in whole or essential parts thereof,
- the acquisition, sale or encumbrance of participations in other
companies in whole or in part,
- the establishment, closure, sale or relocation of subsidiaries and
branches,
- the entering into any joint venture or partnership agreement and the
exercise of voting rights conferred by virtue of participation in
another company, partnership or other organization,
- the purchase, encumbrance or sale of real estate or similar rights
as well as any obligatory contracts related thereto,
- the erection of new or major change of existing buildings belonging
to the Company,
- the conclusion, termination or amendment of customer contracts (in
particular Clinical Trial Projects) having an aggregate financial
exposure of more than DM 500,000 per contract,
- the conclusion, termination or amendment of employee contracts having
a term of more than one year and an aggregate financial exposure of
more than DM 100,000,
- the conclusion, termination or amendment of any other contract with
an aggregate exposure of more than DM 50,000,
- the assuming of guarantees or warranties (except customary product
warranties), the assuming or granting of loans of any kind outside
the customary payment requirements of suppliers and customers,
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- the conclusion, termination or amendment of existing agreements with
banks or credit institutions,
- the granting of loans to employees,
- the formation or acquisition of trademarks, trade names or licenses,
- all transactions which exceed the limits of the annual budget of the
Company as approved by the shareholders' meeting,
- the conclusion, amendment or termination of employment contracts with
Prokuristen or other executive employees,
- the granting of participation rights on turnover and profit as well
as the granting of boni in excess of the DataTRAK bonus plan approved
by the shareholders' meeting,
- the establishment and change of non-budgeted remuneration and/or
pension payments to employees of the Company,
- the introduction of new, fundamental changes or the cessation of
existing product groups, fundamental changes of the internal
organisation or the wage and salary policy as well as other
fundamental strategic decisions that relate to the sales program,
sales activities, etc.,
- the pledging or mortgaging of any asset of the Company,
- the issuing or acceptance of bills of trade,
- the instigation or resolution of legal actions (including arbitration
proceedings) to which the Company is a party with an exposure of more
than DM 200,000,
- any waiver of claims exceeding DM 20,000, and
- any other measure, action or decision which may have a material
impact on the business of the Company.
2. SALARY. The Company will pay Xx. Xxxxx a base salary of DM
210,000 (two hundred ten thousand Deutsche Xxxx per year in accordance with the
Company's payroll practices, or in such other periodic method to which both
parties agree, minus statutory withholdings and deductions. The Company will
review Xx. Xxxxx'x compensation hereunder on an annual basis, and may adjust the
above-indicated level, in its sole discretion, based on Xx. Xxxxx'x performance
of his duties hereunder and/or the performance of the Company, provided,
however, that the Company shall not reduce Xx. Xxxxx'x salary to be paid in any
succeeding year to an amount less than Xx. Xxxxx'x base salary as established
herein or as increased over time without Xx. Xxxxx'x written agreement. Both
parties agree that the above reference to an "annual base salary" or to other
benefits of employment, including but not limited to bonuses, does not in any
way guarantee and/or add to the express
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length of employment of Xx. Xxxxx, other than as set forth herein.
3. BONUS PLANS. The Company may pay Xx. Xxxxx additional
compensation in the form of a discretionary bonus and/or pursuant to an
established bonus plan(s) that the Company or DataTRAK International Inc. may
have in effect from time to time for similarly situated employees. The Company
reserves the right to modify or cancel any bonus plan(s) that it may have in
effect at any given time. The Company will be obligated to pay all amounts
earned and due to Xx. Xxxxx prior to the modification or cancellation of any
established bonus plans. The bonus may be paid in cash, in equity securities of
DataTRAK International Inc., in stock options, or in any combination thereof at
the Company's discretion.
4. STOCK OPTION PLAN. Xx. Xxxxx shall be eligible to
participate in any stock option plans that the Company or DataTRAK International
Inc. may make available from time to time for similarly situated employees. The
granting of stock options will be pursuant to the terms and conditions of a
separate Stock Option Agreement.
5. BENEFITS. During the Term of this Contract, Xx. Xxxxx
shall be entitled to participate in any employment benefit plans and/or
retirement plans which are maintained or established by the Company for its
similarly situated employees, including enrollment in medical, dental, and life
insurance policies or plans, as well as a 401K plan, and all paid holidays
afforded to other similarly situated employees. Additionally, Xx. Xxxxx is
entitled to capital accumulation benefits (Vermogenswirksame Leistungen) in the
amount of DM 936.00 (nine-hundred-thirty-six Deutsche Xxxx) per year. These
benefits are granted in addition to his salary as provided in Section 2.
6. RESERVATION OF VOLUNTARINESS. Any and all payments in kind
and any and all payments in cash as gratification, bonus, profit sharing or any
other benefits provided in addition to the base salary according to Section 2
are discretionary benefits by the Company and establish no right to such claims
in the future. However, this does not apply for the capital accumulation
benefits as mentioned in Section 5.
7. COMPANY CAR. The Company will provide Xx. Xxxxx with a
company car which he is also entitled to use for private purposes. Type and
purchase price will be determined by the shareholders' meeting. The current
allowance is DM 7,800 p.a. (This Allowance is in addition to Xx. Xxxxx'x salary
as stated in section 2.) All taxes arising out of the private use as well as
expenditures for private travels shall be borne by Xx. Xxxxx. The Company is
entitled to demand the return of the company car at the end of Xx. Xxxxx'x
employment or in case of Xx. Xxxxx'x suspension. Until further notice, the
vehicle [Audi A6] with the license plate number BN-DT440 remains at Xx. Xxxxx'x
disposal as his company car.
8. VACATIONS. During the Term of this Contract, Xx. Xxxxx
shall be entitled to annual paid vacation time equal to thirty (30) days, to
be taken at a time or times acceptable to the Company and otherwise consistent
with the terms and conditions of this Contract and the Company's vacation pay
policy.
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9. RELOCATION EXPENSES. The Company is entitled to transfer
Xx. Xxxxx to a different employment location outside of Bonn. During the Term of
this Contract, if Xx. Xxxxx is required by the Company to relocate his permanent
residence to a location outside of [North-Rhine-Westphalia/Germany], then the
Company will reimburse Xx. Xxxxx for all reasonable relocation expenses,
including the expense of moving Xx. Xxxxx'x possessions and reasonable expenses
incurred in travel to the new location for the purpose of locating housing. The
Company will further reimburse Xx. Xxxxx for all reasonable temporary housing
expenses at the new location for the first 90 days after the date requested by
the Company for Xx. Xxxxx'x relocation.
9.1 REAL ESTATE BROKER'S COMMISSIONS. The Company
will reimburse Xx. Xxxxx for reasonable licensed real estate broker's commission
(Broker's Fee) incurred by Xx. Xxxxx in the sale of Xx. Xxxxx'x permanent
residence if Xx. Xxxxx is required by the Company to relocate his permanent
residence to a location outside of [North-Rhine-Westphalia/Germany]. Xx. Xxxxx
will provide the Company with appropriate documentation to support the Broker's
Fee incurred by Xx. Xxxxx.
10. TERM AND TERMINATION OF AGREEMENT. This Contract
shall commence on the date signed by both parties as indicated below and shall
continue for a period of one (1) year (the "Initial Term"), unless sooner
terminated as provided in paragraphs 10.1, 10.2, 10.3, 10.5, 10.6, 10.7 or 10.8
of this Contract. This Contract will renew automatically for successive one (1)
year periods (the "Renewal Period," and collectively with the Initial Term, the
"Term") unless previously terminated or either party gives notice of non-renewal
at least 90 days prior to the commencement of such Renewal Period.
10.1 TERMINATION FOR DEATH. This Contract shall
terminate automatically upon the Xx. Xxxxx'x death. With the exception of any
benefits under the Company's employee benefit plans, and any stock options that
have vested under the Company's Stock Option Plan(s) which may inure to the
benefit of Xx. Xxxxx'x beneficiaries upon Xx. Xxxxx'x death, the Company shall
have no further obligations under the terms and conditions of this Contract. If
Xx. Xxxxx'x employment is terminated pursuant to this section during the Term of
this Contract, Xx. Xxxxx'x heirs shall be entitled to his salary through the
date of such termination, payment for any pro-rata bonus earned and due at the
time of termination pursuant to any (if any) bonus plan(s) the Company may have
in effect at the time of termination, and to any other employee benefits
maintained or established by the Company for its similarly situated employees.
10.2 TERMINATION FOR DISABILITY. The Company and Xx.
Xxxxx acknowledge and agree that the essential functions of the Xx. Xxxxx'x
position are unique and critical to the Company and that a disability condition
which causes the Xx. Xxxxx to be unable to perform the essential functions of
his position with or without reasonable accommodations for a period in excess of
one hundred twenty (120) calendar days will constitute an undue hardship on the
Company. If the Company determines in good faith upon medical certification and
in consultation with Xx. Xxxxx and, if necessary or appropriate, with Xx.
Xxxxx'x physician(s), that Xx. Xxxxx is disabled and unable to perform the
essential function of his position with or without reasonable accommodations, it
may give Xx. Xxxxx written notice of its intention to terminate Xx. Xxxxx'x
employment. If Xx. Xxxxx'x employ
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ment is terminated pursuant to this section during the Term of this Contract,
Xx. Xxxxx shall be entitled to his salary through the date of such termination,
payment for any pro-rata bonus earned and due at the time of termination
pursuant to any (if any) bonus plans the Company may have in effect at the time
of termination, and to any other employee benefits maintained or established by
the Company for its similarly situated employees.
10.3 TERMINATION BY COMPANY FOR CAUSE. During the
Term of this Contract, the Company may terminate Xx. Xxxxx'x employment for
cause by written notification citing the specific reasons for termination. For
purposes of this Contract, "Cause" means in particular (without being limited
thereto):
(1) Xx. Xxxxx'x conviction of a felony
involving moral turpitude or a felony in connection with his employment;
(2) Xx. Xxxxx'x theft, fraud, embezzlement,
material willful destruction of property or material disruption of the
operations of the Company;
(3) Xx. Xxxxx'x use or possession of illegal
drugs and/or unauthorized use of significant amounts of alcohol on Company
premises or reporting to work under the influence of same; or
(4) Xx. Xxxxx'x engaging in conduct, in or
out of the workplace, which in the Company's reasonable determination has an
adverse effect on the reputation or business of the Company.
Under any such termination for Cause, all rights, benefits, obligation and
duties of the parties hereunder shall immediately cease, except any compensation
due and owing through the date of termination and/or fringe benefits which have
vested on Xx. Xxxxx'x behalf prior to such termination, if any.
10.4 SUSPENSION. In the event Xx. Xxxxx engages in
conduct subjecting Xx. Xxxxx to potential civil or criminal liability which
could have an adverse effect upon the Company's reputation or business or is
related to Xx. Xxxxx'x duties and responsibilities, the Company reserves the
right to immediately suspend Xx. Xxxxx with pay, pending investigation and/or
the outcome of the matter.
Additionally, the Company at any time shall have the right to suspend Xx. Xxxxx
in the event of any termination of this Contract by either party, regardless for
which reason, until the expiration of the Contract.
10.5 TERMINATION BY XX. XXXXX WITHOUT GOOD
REASON/NON-RENEWAL BY XX. XXXXX. During the Term of this Contract, Xx. Xxxxx may
terminate his employment and this Contract at any time for any or no reason upon
at least 30 days written notice by Xx. Xxxxx directly to the shareholders of the
Company. Prior to and/or during any Renewal Period, Xx. Xxxxx may also terminate
this Contract by giving a notice of non-renewal at least 120 days prior to the
commencement of the next Renewal Period. Xx. Xxxxx acknowledges and agrees that
a voluntary resignation, termination or retirement by Dr.
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Summa during the Term of this Contract as described in this Section 10.5, and/or
a notice of non-renewal prior to and/or during any Renewal Period as described
in this Section 10.5, shall result in the termination of this Contract and all
rights and obligations under this Contract shall immediately cease upon the
expiration of the Contract, except any fringe benefits or stock options which
have vested on Xx. Xxxxx'x behalf prior to such expiration and - for the
avoidance of doubt - except for the rights and obligations according to Section
11.
10.6 TERMINATION BY XX. XXXXX FOR GOOD REASON. Xx.
Xxxxx may terminate his employment and this Contract at any time during the Term
of this Contract for "Good Reason." "Good Reason" shall mean any fundamental
breach of contract by the Company, including but not limited to (a) any material
reduction by the Company of Xx. Xxxxx'x duties, responsibilities, base salary,
title or position, or (b) any involuntary removal of Xx. Xxxxx from any position
previously held (except in connection with a promotion or a termination for
Cause, Death, or Disability, or the voluntary termination by Xx. Xxxxx without
Good Reason). Prior to any termination by Xx. Xxxxx for Good Reason pursuant to
this Section 10.6, Xx. Xxxxx shall provide the Company with sixty (60) calendar
days' written notice of the acts and/or omissions of the Company which Xx. Xxxxx
asserts constitute "Good Reason," and if, at the conclusion of that sixty (60)
calendar day period, the Company has not undertaken reasonable efforts to cure
or correct the alleged acts and/or omissions, then Xx. Xxxxx may terminate his
employment pursuant to this Section 10.6. In the event of such termination by
Xx. Xxxxx for Good Reason, Xx. Xxxxx shall be entitled to receive (i) his salary
through the date of the expiration of the Contract and for a period of one (1)
year after such expiration, and (ii) outplacement services from an agency to be
selected by the Company in an amount not to exceed Ten Thousand (US$10,000)
US-Dollars or the equivalent thereof in Deutsche Xxxx or EURO.
10.7 TERMINATION OTHER THAN FOR CAUSE, DEATH, OR
DISABILITY/NON-RENEWAL BY COMPANY. During the Term of this Contract, the Company
may terminate Xx. Xxxxx for other than Cause, Death, or Disability at any time
during the Term and/or any Renewal Term of this Contract, upon not less than
thirty (30) days notice. Prior to and/or during any Renewal Period, the Company
may also terminate this Contract by giving a notice of non-renewal at least 120
days prior to the commencement of the next Renewal Period. In the event the
Company exercises its right to terminate Xx. Xxxxx other than for Cause, Death,
or Disability at any time during the Term of this Contract as described in this
Section 10.7, and/or gives a notice of non-renewal prior to and/or during any
Renewal Period as described in this Section 10.7, Xx. Xxxxx shall at the time of
the expiration of the Contract be entitled to receive (i) his salary through the
date of such expiration of the Contract and for a period of one (1) year after
such expiration, and (ii) outplacement services from an agency to be selected by
the Company in an amount not to exceed Ten Thousand (US$10,000) US-Dollars or
the equivalent thereof in Deutsche Xxxx or EURO.
10.8 CHANGE OF CONTROL. If a Change of Control (as
defined in this paragraph) shall occur during the Term of this Contract, and Xx.
Xxxxx'x employment is (a) not continued by the purchaser or successor or (b)
there is a material change in Xx. Xxxxx'x role, duties, responsibility or title
following a Change of Control and Xx. Xxxxx voluntarily terminates his
employment and this Contract therefor, Xx. Xxxxx shall be entitled to receive
(i) his salary through the date of such non-continuation and for a period of one
(1) year after
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such non-continuation, and (ii) outplacement services from an agency to be
selected by the Company in an amount not to exceed Ten Thousand (US$10,000)
US-Dollars or the equivalent thereof in Deutsche Xxxx or EURO. For purposes
hereof, the term "Change of Control" shall mean (A) the sale of all or
substantially all of the assets of the Company, (B) the sale of a majority of
the outstanding shares of capital stock of the Company entitled to vote in a
single transaction or series of related transactions (except with respect to a
public offering of the Company's shares of capital stock), (C) the consummation
of a merger, consolidation or similar transaction involving the Company in which
the holders of the Company's capital stock immediately prior to the transaction
do not retain at least a majority of the voting power of the Company surviving
the merger or its parent Company, or (D) the complete liquidation or dissolution
of the Company.
10.9 RESIGNATION FROM OFFICES. In case of a
termination of this Contract, for whatever reason, Xx. Xxxxx shall resign with
immediate effect from all positions on supervisory or similar boards that have
been transferred to him with respect to his position as Managing Director of the
Company.
10.10 DISPUTE RESOLUTION. In the event, upon
termination of Xx Xxxxx'x employment, a disagreement exists between Xx. Xxxxx
and the Company as to the validity of the termination or as to which section of
this Section 10 governs such termination (i.e., if the party terminating Xx.
Xxxxx'x employment (the "Terminating Party") claims that "Cause", "Good Reason",
"Disability" or "Change of Control" exists and the other party (the "Disputing
Party") disputes such claim), the Disputing Party shall within thirty (30) days
after termination of Xx. Xxxxx'x employment challenge the claimed basis for
termination by giving written notice (the "Dispute Notice") of such challenge to
the Terminating Party. In the event the Disputing party fails to give the
Dispute Notice within the thirty (30) day period provided above, all rights of
the Disputing Party to challenge the claimed basis for termination shall expire.
11.0 RESTRICTIVE COVENANTS OF XX. XXXXX.
11.1 NON-COMPETITION.
(1) During the period of Xx. Xxxxx'x
employment by the Company and, (i) in the case of the termination of Xx. Xxxxx'x
employment under Sections 10.2, 10.6, 10.7, or 10.8 hereof, for a period of one
(1) year thereafter, or (ii) in the case of the termination of Xx. Xxxxx'x
employment under any provision of Section 10 hereof other than Sections 10.2,
10.6, 10.7, or 10.8 for a period of eighteen (18) months (the "Non-competition
Period"), Xx. Xxxxx shall not, directly or indirectly, whether as an individual
on his own account, or as a partner, joint venturer, director, officer,
employee, consultant, creditor and/or agent or otherwise, in any place in which
the Company now or hereafter conducts business:
(a) Enter into or engage in any
business which provides software and related web hosting, educational and
training services, and/or other Applications Services Provider ("ASP") services,
to customers in the pharmaceutical, biotech, and/or medical device industries to
assist in the electronic capture of clinical trial patient data from clinical
trial sites;
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(b) Solicit customers, business,
patronage or orders from, or perform other services for, any person, firm,
association, corporation or other entity, engaged in any business, including
without limitation, an Applications Services Provider, which directly or
indirectly competes with the business of the Company or any parent or subsidiary
of, or entity controlling, controlled by or under common control with the
Company ("Company Affiliate"); or
(c) Promote or assist, financially
or otherwise, any person, firm, association, corporation or other entity,
engaged in any business, including without limitation, an Applications Services
Provider, which competes with the current or future business of the Company or
any Company Affiliate; provided, however, that the foregoing covenant shall not
be deemed to have been violated solely by (i) the ownership of equity securities
of an entity which competes with a future business of the Company or any Company
Affiliate, to the extent that such securities are acquired prior to the date
that the Company or Company Affiliate commences such future business; or (ii)
the ownership for investment purposes of less than five percent (5%) of the
equity securities of any entity which has equity securities listed on a national
securities exchange or publicly traded in the over-the-counter market.
(2) Xx. Xxxxx, however, is allowed to work
as an employee or as a consultant for pharmaceutical, biotech, and/or medical
device companies as long as his activities do not have a negative impact on the
Company's business with its customers (ref. to Section 11.3).
(3) For the time period after the expiration
of the Contract, the competition prohibition according to this Section 11 is
limited to the territory of Germany.
(4) As compensation for the non competition
obligation for the time period after the expiration of the Contract, during such
time frame the Company shall be obligated to pay to Xx. Xxxxx on a monthly basis
50% of the gross average remuneration Xx. Xxxxx was entitled to prior the
expiration of the Contract ("Previous Remuneration") in accordance with Section
74b sub-section (2) of the German Commercial Code (HGB). Such compensation shall
be due at the end of each respective month.
Any and all benefits (including any payments by the Company Xx. Xxxxx is
entitled to under this Contract after its expiration) earned by Xx. Xxxxx during
the term of the post-contractual non-competition obligation by utilizing his
working capacity as well as any and all benefits not earned due to malicious
intent shall be credited to the compensation due to the extent that such
benefits and the compensation would exceed the Previous Remuneration by 1/10,
respectively 1/4 in the event Xx. Xxxxx changes his residence based on this
post-contractual non competition obligation.
(5) During the post-contractual
non-competition period, Xx. Xxxxx shall be obligated to supply to the Company by
the end of each calendar quarter, or at any other time at the Company's written
request, information as to the benefits earned and the names and addresses of
his respective employers. He shall furthermore, at the Company's request,
furnish evidence thereof.
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(6) Unemployment benefits
("ARBEITSLOSENGELD") will be deducted from any payment due under this Section
11.
(7) Section 75a of the German Commercial
Code shall apply.
11.2 CONFIDENTIALITY AND WORK PRODUCT. Xx. Xxxxx
acknowledges that during his employment with the Company he has had and will
have access to confidential information, knowledge, and data regarding the
business of the Company and Company Affiliates, whether received, acquired or
developed by him or otherwise, including, without limitation, trade secrets,
design information, software programs, research methods and techniques,
scientific data and formulae, pricing data, customer information and all other
information or data relevant to the business of the Company (collectively,
except any of the foregoing which is at the time generally known to the public
and which did not become generally known through the breach of any agreement
restricting its disclosure, "Proprietary Information"). Xx. Xxxxx further
acknowledges that in the course of his employment he may be producing designs,
analyses, recommendations, reports, complications, software, studies and other
worth product, acquiring information on behalf of the Company and any conceive
of ideas, innovations, processes and improvements relating to the business of
the Company (collectively, "Work Product"). As to the ownership, disclosure and
use of Proprietary Information and Work Product, Xx. Xxxxx agrees that, from and
after the date hereof:
(a) he will promptly disclose in writing to the
Company all Work Product;
(b) all Proprietary Information, all Work Product and
all rights therein are and shall be the sole and exclusive property of the
Company (to the extent this is not possible for legal reasons, the Company shall
have the exclusive and comprehensive right to use such Proprietary Information
and/or Work Product) and all rights or interest of Xx. Xxxxx therein are covered
by the remuneration according to Section 2 of this Contract and are hereby
assigned by Xx. Xxxxx to the Company, and Xx. Xxxxx will cooperate with and
assist the Company from time to time, in any manner reasonably requested by the
Company, in obtaining title or ownership therein or evidence thereof;
(c) Xx. Xxxxx shall not divulge, disclose or
communicate to any third party in any manner, directly or indirectly,
Proprietary Information or Work Product; this applies during and upon expiration
of this Contract;
(d) Xx. Xxxxx will not use, during or upon expiration
of this Contract, for his own benefit or purposes or for the benefit or purposes
of any third party or permit or assist, by acquiescence or otherwise, any third
party to use in any manner, directly or indirectly, Proprietary Information or
Work Product; and
(e) upon the expiration of the Contract, Xx. Xxxxx
will promptly deliver to the Company all Proprietary Information and Work
Product, including, without limitation, any reproductions, copies, abstracts,
summaries or other documents or records of
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Proprietary Information or Work Product.
11.3 NO INTERFERENCE. During the Non-competition
Period, Xx. Xxxxx agrees that he shall not:
(a) interfere with the contractual
relationship of the Company, any Company Affiliate, customers, suppliers,
employees or other which relate to the business of the Company or any Company
Affiliate; or
(b) induce any employee or representative of
the Company or any Company Affiliate not to continue as an employee or
representative of the Company or any Company Affiliate;
(c) make remarks or take any other action
which disparages or diminishes the reputation of the Company or any Company
Affiliate; and
(d) without limiting the generality of the
foregoing, without the prior written consent of the shareholders' meeting of the
Company, directly or indirectly employ, whether as an employee, officer,
director, agent, consultant or independent contractor, any person who was an
employee, representative, officer or director of the Company or any Company
Affiliate at any time during the six-month period prior to the date of such
proposed employment; provided, however, that the covenants contained in this
clause (d) shall not apply with respect to such person terminated by action of
the Company or any Company Affiliate.
11.4 INJUNCTIVE RELIEF. Both parties hereto recognize
that the services to be rendered by Xx. Xxxxx to the Company are special, unique
and of extraordinary character, that the market for the Company's services and
products is worldwide; that through the Internet, World Wide Web, and/or other
media of electronic commerce, the Company regularly transacts business
worldwide; and that if Xx. Xxxxx hereafter fails to comply with the restrictions
and obligations imposed upon him hereunder, the Company may not have an adequate
remedy at law. Accordingly, the Company, in addition to any other rights, which
it may have, shall be entitled to seek injunctive relief to enforce such
restrictions and obligations without the necessity of posting any bond.
12. REPRESENTATIONS OF XX. XXXXX. Xx. Xxxxx represents and
warrants to the Company that he has the capacity to enter into this Contract
that he is not a party to any agreement, arrangement or other understanding with
any person or entity which might affect, restrain or conflict with the
provisions of this Contract and/or the services to be provided to the Company by
Xx. Xxxxx under this Contract.
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13. PRECLUSIVE TIME LIMIT Any and all alleged claims under
this Contract must be asserted by the respective party vis-a-vis the other party
within three (3) months after obtaining knowledge of the facts constituting the
claim, or, in case of salary or bonus claims, since receipt of the respective
pay-slip. In the event of non-compliance with the above period of three (3)
months, all such claims are deemed to be waived. Section 10.10 remains
unaffected.
14. REFORMATION OF AGREEMENT; SEVERABILITY. In the event that
any provision or term of this Contract is found to be void or unenforceable to
any extent for any reason, it is the agreed-upon intent of the parties hereto
that all remaining provisions or terms of the Contract shall remain in full
force and effect to the maximum extent permitted and that the Contract shall be
enforceable as if such void or unenforceable provision or term had never been a
part hereof.
15. ASSIGNMENT. This Contract shall inure to the benefit of,
and shall be binding upon, the Company, its successors and assigns. Xx. Xxxxx
shall not assign this Contract without the prior written consent of the Company.
16. NOTICE. Any notice required to be given under the terms
of this Contract shall be in writing, and mailed to the recipient's last known
address or delivered in person. If sent by registered or certified mail, such
notice shall be effective when mailed; otherwise, it shall be effective upon
delivery.
17. ENTIRE AGREEMENT; AMENDMENTS: WAIVERS. This Contract
contains the entire agreement between the parties hereto with respect to the
subject matter hereof. This Contract may not be validly changed orally, but only
by agreement, in writing, signed by each of the parties hereto. The terms or
covenants of this Contract, including this provision, may be waived only by a
written instrument specifically referring to this Contract, executed by the
party waiving compliance. The failure of the Company at any time, or from time
to time, to require performance of any of Xx. Xxxxx'x obligations under this
Contract shall in no manner affect the Company's right to enforce any provisions
of this Contract at a subsequent time; and the waiver by the Company of any
right arising out of any breach shall not be construed as a waiver of any right
arising out of any subsequent breach.
18. HEADINGS. The headings in this Contract are intended
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Contract.
19. COUNTERPARTS. This Contract may be executed in multiple
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same document.
20. PREVIOUS EMPLOYMENT AGREEMENT. The parties hereby
terminate Xx. Xxxxx'x employment contract dated January 13, 1998 with effect to
the commencement of this Contract.
21. GENERAL PROVISIONS. This Contract shall be governed by
and con-
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strued in accordance with the laws of Germany.
IN WITNESS WHEREOF, the parties hereto have executed this
Contract as of the dates written below.
Date: December 29, 2000 /s/ Xxxxxxxx Xxxxx
-------------------------- ------------------------------
XX. XXXXXXXX XXXXX
DataTRAK DEUTSCHLAND GmbH
Date December 29, 2000 By /s/ Xxxxxxx X. Xxxxx
--------------------------- -------------------------
Title: Chief Executive Officer and
President of DataTRAK International Inc.).
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