EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made this 14th day of May, 1997, is by and between
Xxxxxxxxx X. Xxxxxxx (hereinafter "Employee") and IBAH, Inc., a Delaware
corporation with a principal place of business at 000 Xxxxxxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxxxx 00000 (hereinafter "Employer").
WHEREAS, Employer desires to employ Employee, and Employee desires to be
employed by Employer; and
WHEREAS, both parties wish clearly to define and clarify all terms and
conditions of the employment relationship; and
WHEREAS, both parties wish to avoid any disputes over any terms and
conditions of the employment relationship, and to insure that any such disputes
are resolved expeditiously and inexpensively through arbitration instead of
litigation; and
NOW THEREFORE, INTENDING TO BE LEGALLY BOUND, in consideration of the
mutual covenants contained herein, it is hereby agreed as follows:
1. Position. Employer agrees to employ Employee in the position of Chief
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Financial Officer. Employee shall perform such duties and accept all
responsibilities incidental to and commensurate with his position with Employer
or as may be assigned to him by Employer. Employee shall cooperate fully with
his Employer and not perform any duties or responsibilities which would in any
manner, directly or indirectly, limit or affect the ability of Employee to
perform the duties and responsibilities assigned to Employee by Employer.
2. Compensation. Employer agrees that for performing the duties of Chief
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Financial Officer, it will pay Employee a base salary of $170,000 per year, less
any applicable withholdings or deductions (the "base salary"). Employee shall
be eligible for merit increases of his base salary on the anniversary date of
his employment. Employee shall also be eligible to participate in the
Employer's bonus and option plan for management employees (the "Plan"),
according to its terms and as may be modified from year to year by the Board of
Directors.
3. Housing and Moving. Employer agrees to provide Employee with (i)
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reasonable mutually agreed upon rental costs of an apartment or home in
Pennsylvania, before Employee closes on the purchase of a home in Pennsylvania,
for up to six (6) months; and (iii) reasonable and mutually agreed upon closing
costs on his home in Connecticut and new home in Pennsylvania.
4. Options. In addition to any stock options Employee may receive under the
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Plan, Employee shall be entitled to a one-time grant of stock options for
100,000 shares of the Employer's stock, subject to the approval of the Board of
Directors.
5. Additional Benefits. In addition to the compensation set forth above,
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Employee shall be entitled to three (3) weeks of vacation per calendar year,
with additional days for years of service pursuant to the standard policy of the
Employer. Employee shall also be entitled to participate in any of the
Employer's standard benefit policies or plans according to their terms. These
policies and plans may be modified or terminated from time to time by the
Employer, but not retroactively. The written terms of the policies or plans
shall govern any questions of eligibility, coverage, or duration of coverage.
6. Employment-at-Will/Notice. This employment shall be on an at-will basis.
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Either the Employer or the Employee may terminate the employment for any legal
reason or no reason during the term of this Agreement. If the Employer
terminates the employment without cause (fraud, theft or misconduct) and due to
a change in control of the Employer, including merger or acquisition, the
Employer shall pay the Employee his base salary for twelve months after the
termination of employment (the "Severance Payments"), provided however, that
Employee shall execute a release of all claims against Employer prior to being
entitled to the Severance Payments.
7. No Prior Restriction. Employee warrants that he is not restricted by any
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restrictive covenant or confidentiality agreement from any prior employment from
performing all of the duties required by this Agreement. Should a prior
employer assert that Employee is so restricted, the Employee shall indemnify,
defend, and hold harmless the Employer from any reasonable attorneys' fees or
costs incurred in defending such claims and any damages resulting either from
final judgment or reasonable settlement of any such claims.
8. Covenant Not to Compete. Employee agrees that during the period of
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employment and for one (1) full year after termination thereof for any reason,
he will not, directly or indirectly, engage in or be connected to as an officer,
director, employee, consultant, partner, principal, agent or representative,
any Clinical Research Organization ("CRO") in any capacity similar or related to
the Employee's duties for the Employer. The Employee further agrees that any
breach of this clause shall be deemed to have caused Employer immediate and
irreparable injury, and the Employer shall have the right to proceed directly to
any court of competent jurisdiction and seek both injunctive relief and damages
notwithstanding paragraph 12 hereof. It is recognized by Employee that the
business of Employer, and Employee's connection therewith, is or will be
international in scope, and that geographical limitations on this Covenant Not
To Compete are therefore not appropriate.
9. Confidentiality. Employee will not at any time, whether during or after
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the termination of his employment, reveal to any person or entity any of the
trade secrets or confidential information concerning the organization, business,
or finances of the Employer. Confidential information or trade secrets
includes, but is not limited to, operating procedures, salary
structure/compensation information, pricing strategies, investigator lists,
budgets and other related data, computer software, databases and programming,
data files, client lists and related information, financial information and
projections, inventions, know-how, products, services, techniques and any other
information which, if divulged to a third party could have an adverse impact on
the Employer, or on any third party to which the Employer owes a confidentiality
obligation, except as may be required in the ordinary course of performing his
duties as an employee of the Employer.
Further, Employee understands that client companies disclose confidential
information to the Employer and that the Employer agrees, in writing, to
maintain the confidentiality of this information. Employee will not at any
time, whether during or after the termination of his employment, reveal to any
person or entity any trade secrets or confidential information concerning the
organization, business or finances of any third party or client to which the
Employer owes a confidentiality obligation.
10. Developments. If at any time or times during his employment, the Employee
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(either alone or with others) makes, conceives, creates, discovers, invents or
reduces to practice any invention, modification, discovery, design, development,
improvement, process, software program, work of authorship, documentation,
formula, data, whether or not patentable or registrable under copyright,
trademark or similar statutes (including but not limited to the Semiconductor
Chip Protection Act or subject to analogous protection) (herein called
"Developments") that (a) relates to the business of the Employer or any customer
of or supplier to the Employer or any of the products or services being
developed, manufactured or sold by the Employer or which may be used in
relation therewith, (b) results from tasks assigned me by the Employer or (c)
results from the use of premises or personal property (whether tangible or
intangible) owned, leased or contracted for by the Employer, such Developments
and the benefits thereof are and shall immediately become the sole and absolute
property of the Employer and its assigns, as "work made for hire" or otherwise,
and Employee shall promptly disclose to the Employer (or any persons designated
by it) each such Development and, as may be necessary to ensure the Employer's
ownership of such Developments, Employee hereby assign any rights (including,
but not limited to, any copyrights and trademarks) he may have or acquire in the
Developments and benefits and/or rights resulting therefrom to the Employer and
its assigns without further compensation and shall communicate, without cost or
delay, and without disclosing to others the same, all available information
relating thereto (with all necessary plans and models) to the Employer.
Employee will, during his employment and at any time thereafter, at the
request and cost of the Employer, promptly sign, execute, make and do all such
deeds, documents, acts and things as the Employer and its duly authorized agents
may reasonably require:
(a) to apply for, obtain, register and vest in the name of the Employer
alone (unless the Employer otherwise directs) letters patent, copyrights,
trademarks or other analogous protection in any country throughout the world and
when so obtained or vested to renew and restore the same; and
(b) to defend any judicial, opposition or other proceedings in respect of
such applications and any judicial, opposition or other proceedings or petitions
or applications for revocation of such letters patent, copyright, trademark or
other analogous protection.
In the event the Employer is unable, after reasonable effort, to secure his
signature on any application for letters patent, copyright or trademark
registration or other documents regarding any legal protection relating to a
Development, whether because of the physical or mental incapacity of Employee or
for any other reason whatsoever, Employee hereby irrevocably designates and
appoints the Employer and its duly authorized officers and agents as his agent
and attorney-in-fact, to act for and in his behalf and stead to execute and file
any such application or applications or other documents and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright or trademark registrations or any other legal protection
thereon with the same legal force and effect as if executed by the Employee.
11. Debarment. Employee represents that he has never been (i) debarred or
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convicted of a crime for which a person can be debarred under 21 U.S.C. (S)335a
((S)"335a") nor (ii) threatened to be debarred or indicted for a crime or
otherwise engaged in conduct for which a person can be debarred under (S)335a.
Employee will promptly notify the Employer in the event of any such debarment,
conviction, threat or indictment occurring during the term of his employment
with the Employer.
12. Arbitration of Disputes. All disputes arising out of or concerning the
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interpretation or application of this Agreement, including without being limited
to any claims that the application of this Agreement or the termination of the
employment relationship established by this Agreement violates any federal,
state, or local law, regulation, or ordinance shall be resolved timely and
exclusively by arbitration pursuant to the rules of the American Arbitration
Association, except as provided below. Arbitration must be demanded within one
hundred and twenty (120) calendar days of the time when the demanding party
knows or should have known of the event or events giving rise to the claim. The
arbitration opinion and award shall be final and binding on the parties and
enforceable by any court of competent jurisdiction. The parties shall share
equally all costs of arbitration excepting their own attorneys fees (unless and
to the extent ordered by the arbitrator(s) to pay the attorneys' fees of
prevailing party).
The parties recognize that this paragraph means that certain claims will be
tried before an impartial arbitrator or panel of arbitrators instead of before a
court and/or a jury, but desire the many benefits of arbitration over court
proceedings, including speed of resolution, lower costs and fees,and more
flexible rules of evidence. The arbitrator or arbitrators duly selected
pursuant to the AAA Rules shall have the same power and authority to order any
remedy for violation of a statute, regulation, or ordinance, as a court would
have; and shall have the same power to order discovery as a federal district
court has under the Federal Rules of Civil Procedure.
This clause is intended by the parties to be enforceable under the Federal
Arbitration Act. Should it be determined by any court of competent jurisdiction
that the Act does not apply,
then it shall be enforceable under the arbitration statute of the Commonwealth
of Pennsylvania.
13. Employer Property. All documents and other materials made, compiled by or
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made available to Employee during the course of his employment and all copies
thereof in any form, whether or not they contain confidential information, are
and shall be the exclusive property of the Employer and shall be
returned/delivered to the Employer immediately upon termination of his
employment.
14. Direct Court Access. Notwithstanding paragraph 12 above, the Employer may
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proceed directly to any court of competent jurisdiction should the Employee
breach paragraphs 8, 9 or 10 above and that breach cause irreparable injury to
the Employer.
15. Integration/Modification. This Agreement constitutes the entire integrated
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agreement between the parties, and supersedes any prior or contemporaneous
statements, representations, warranties, understandings or inducements of any
kind. This Agreement may be modified only by a writing signed by the parties
and stating that it modifies this Agreement.
16. Applicable Law. This Agreement shall be interpreted and enforced under the
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laws of the Commonwealth of Pennsylvania, except where otherwise provided.
17. Severability/Survival. Should any paragraph or portion thereof be found
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illegal or unenforceable to any extent or degree by any court of competent
jurisdiction, this shall not effect the validity and enforceability of the
remaining paragraphs hereof. The obligations of this Agreement shall survive
and continue even after the termination of the employment covered by it.
IBAH, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx /s/ Xxxxxxxxx X. Xxxxxxx
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Xxxxxxxxx X. Xxxxxxx Xxxxxxxxx X. Xxxxxxx
Chief Executive Officer
