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EXHIBIT 99.6
FORM OF EMPLOYMENT AGREEMENT
BY AND BETWEEN
COVALENT GROUP, INC.
AND
XXXXXXX X. XXXXX, M.D.
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TABLE OF CONTENTS
PAGE
1. Employment..........................................................................1
2. Loyal And Conscientious Performance; Noncompetition.................................2
3. Compensation Of THE Executive.......................................................3
4. Termination.........................................................................4
5. Confidential And Proprietary Information; Nonsolicitation...........................7
6. Assignment And Binding Effect.......................................................7
7. Notices.............................................................................8
8. Choice Of Law.......................................................................8
9. Integration.........................................................................8
10. Amendment...........................................................................8
11. Waiver..............................................................................8
12. Severability........................................................................9
13. Interpretation; Construction........................................................9
14. Representations And Warranties......................................................9
15. Counterparts........................................................................9
16. Arbitration.........................................................................9
17. Injunctive Relief..................................................................10
18. Trade Secrets Of Others............................................................10
19. Advertising waiver.................................................................10
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into on
___________ __, 1999, by and between COVALENT GROUP, INC., a Nevada corporation
(the "Company"), and XXXXXXX X. XXXXX, M.D. (the "Executive"). The Company and
the Executive are hereinafter collectively referred to as the "Parties", and
individually referred to as a "Party".
RECITALS
WHEREAS, the Executive currently maintains the title and position of
President, Chief Operating Officer and Chief Medical Officer with the Company,
which he shall continue to hold until the Effective Date of this Agreement.
WHEREAS, Xxxxx XxXxxx, the majority stockholder of the Company and the
Covalent Group, LLC are currently engaged in negotiations for the sale and
purchase of all of the equity securities of the Company held by Xx. XxXxxx (the
"Transaction"). If the Transaction is consummated this Agreement shall become
automatically effective on the closing of the Transaction (the "Effective Date")
pursuant to the terms and conditions set forth herein.
WHEREAS, upon the Effective Date of this Agreement, the Executive
agrees, as part of this Agreement and in consideration thereof, to execute a
release and waiver of claims (substantially in the form of which is attached
hereto as Exhibit A) in exchange for the promises and covenants set forth in
this Agreement.
AGREEMENT
In consideration of the foregoing Recitals and the mutual promises and
covenants herein contained, and for other good and valuable consideration, the
Parties, intending to be legally bound, agree as follows:
1. EMPLOYMENT.
1.1 TERM. The Company hereby employs the Executive, and the
Executive hereby accepts employment by the Company, upon the terms and
conditions set forth in this Agreement. Subject to extension in accordance with
Section 1.2 herein, the term of this Agreement shall commence on the Effective
Date and shall continue for three (3) years thereafter unless terminated earlier
in accordance with Section 4 herein or extended in accordance with SECTION 1.2
herein (the "Term").
1.2 RENEWAL. The term of this Agreement shall be automatically
extended by one (1) year on the last day of the Term (and each anniversary
thereof) unless written notice has been provided by either Party pursuant to
Section 7 herein no less than sixty (60) days prior to the date of such
automatic renewal (a "Non-Renewal Notice"). Notwithstanding anything herein to
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the contrary, either Party may terminate the Executive's employment under this
Agreement at any time, with or without Cause, subject to the terms and
conditions of Section 4 below.
1.3 TITLE. From the date hereof through the Effective Date,
Executive shall continue to service as the President, Chief Operating Officer
and Chief Medical Officer of the Company. From and after the Effective Date, the
Executive shall have the title of Chief Executive Officer of the Company and
shall serve in such other capacity or capacities as the Board of Directors of
the Company may from time to time prescribe. The Executive shall report to the
Board of Directors of the Company.
1.4 BOARD OF DIRECTORS. The Company agrees to nominate Executive for
a position as a director and voting member of the Board of Directors at the next
regularly scheduled Board of Directors meeting following the Effective Date of
the Agreement.
1.5 DUTIES. The Executive shall do and perform all services, acts or
things necessary or advisable to manage and conduct the business of the Company
and which are normally associated with the position of Chief Executive Officer,
consistent with the bylaws of the Company and as required by the Company's Board
of Directors.
1.6 POLICIES AND PRACTICES. The employment relationship between the
Parties shall be governed by the policies and practices established by the
Company and its Board of Directors, except that when the terms of this Agreement
differ from or are in conflict with the Company's policies or practices, this
Agreement shall control.
1.7 LOCATION. Unless the Parties otherwise agree in writing, during
the Term of this Agreement, Executive shall perform the services Executive is
required to perform pursuant to this Agreement at the Company's offices, located
in Wayne, Pennsylvania; provided, however, that the Company may from time to
time require the Executive to travel temporarily to other locations in
connection with the Company's business.
1.8 LIFE INSURANCE POLICY. Executive understands and agrees that the
Company anticipates securing a life insurance policy on Executive up to an
amount of three million dollars ($3,000,000). Executive agrees to cooperate with
the Company in obtaining such life insurance, including submitting to a physical
examination if required to do so by the insurance carrier.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.
2.1 LOYALTY. During the Executive's employment by the Company, the
Executive shall devote Executive's full business energies, interest, abilities
and productive time to the proper and efficient performance of Executive's
duties under this Agreement, provided, however, that the Company agrees that
Executive may continue his work as a medical consultant and expert witness, to
the extent that such work does not interfere with Executive's duties under this
Agreement.
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2.2 COVENANT NOT TO COMPETE. Except with the prior written consent
of the Company's Board of Directors, the Executive will not, during the Term of
this Agreement, and any period during which the Executive is receiving
compensation or any other consideration from the Company pursuant to Section
4.4.3 herein, engage in pharmaceutical research development that competes with
the Company, either directly or indirectly, in any manner or capacity, as
adviser, principal, agent, affiliate, promoter, partner, officer, director,
employee, stockholder, owner, co-owner, consultant, or member of any association
or otherwise, in any phase of the business of pharmaceutical research
development.
2.3 AGREEMENT NOT TO PARTICIPATE IN COMPANY'S COMPETITORS. During
the Executive's employment by the Company, Executive agrees not to acquire,
assume or participate in, directly or indirectly, any position, investment or
interest known by Executive to be adverse or antagonistic to the Company, its
business or prospects, financial or otherwise or in any company, person or
entity that is, directly or indirectly, engaged in pharmaceutical research
development. Ownership by the Executive, as a passive investment, of less than
two percent (2%) of the outstanding shares of capital stock of any corporation
with one or more classes of its capital stock listed on a national securities
exchange or publicly traded on the Nasdaq Stock Market or in the
over-the-counter market shall not constitute a breach of this Section 2.
3. COMPENSATION OF THE EXECUTIVE.
3.1 BASE SALARY. The Company shall pay the Executive a base salary
of Two Hundred Fifty Thousand Dollars ($250,000) per year (the "Base Salary"),
payable in regular periodic payments in accordance with Company policy. Such
salary shall be prorated for any partial year of employment on the basis of a
365-day fiscal year.
3.2 CHANGES TO COMPENSATION. The Executive's compensation may be
changed from time to time by mutual agreement of the Executive and the Company.
3.3 EMPLOYMENT TAXES. All of the Executive's compensation shall be
subject to customary withholding taxes and any other employment taxes as are
commonly required to be collected or withheld by the Company.
3.4 BENEFITS. The Executive shall, in accordance with Company policy
and the terms of the applicable plan documents, be eligible to participate in
benefits under any executive benefit plan or arrangement which may be in effect
from time to time and made available to the Company's executive or key
management employees.
3.5 BONUS. Executive's performance shall be reviewed by the Board of
Directors on a periodic basis and the Board of Directors may, in its sole
discretion, provide a bonus to Executive as shall be appropriate or desirable
based on Executive's performance, the performance of the Company and the
milestones determined by the Board of Directors in its sole discretion.
3.6 OPTIONS. On the Effective Date, or as soon as practicable
thereafter, Executive shall be granted option to acquire 500,000 shares of the
Company's Common Stock
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(the "Options") vesting monthly over a three year term, exercisable at the then
current fair market value thereof, and under such other terms of the Company's
stock option plan.
4. TERMINATION.
4.1 TERMINATION BY THE COMPANY. The Executive's employment with the
Company may be terminated under the following conditions:
4.1.1 DEATH OR DISABILITY. The Executive's employment with the
Company shall terminate effective upon the date of the Executive's death or
"Complete Disability" (as defined in Section 4.5.1).
4.1.2 FOR CAUSE. The Company may terminate the Executive's
employment under this Agreement for "Cause" (as defined in Section 4.5.2) by
delivery of written notice to the Executive specifying the Cause or Causes
relied upon for such termination. Any notice of termination given pursuant to
this Section 4.1.2 shall effect termination as of the date specified in such
notice or, in the event no such date is specified, on the last day of the month
in which such notice is delivered or deemed delivered as provided in Section 7
below.
4.1.3 WITHOUT CAUSE. The Company may terminate the Executive's
employment under this Agreement at any time and for any reason by delivery of
written notice of such termination to the Executive. Any notice of termination
given pursuant to this Section 4.1.3 shall effect termination as of the date
specified in such notice or, in the event no such date is specified, on the last
day of the month in which such notice is delivered or deemed delivered as
provided in Section 7 below.
4.1.4 NON-RENEWAL NOTICE. The Company may terminate this
Agreement by providing the Executive with a Non-Renewal Notice sixty (60) days
prior to the date of automatic renewal, as provided in Section 1.1 herein.
4.2 TERMINATION BY EXECUTIVE. The Executive may terminate the
Executive's employment with the Company at any time and for any reason by
delivery of a written notice of such termination to the Company's Board of
Directors. Any notice of termination given pursuant to this Section 4.2 shall
effect termination as of the date specified in such notice or, in the event no
such date is specified, on the last day of the month in which such notice is
delivered or deemed delivered as provided in Section 8 below.
4.3 TERMINATION BY MUTUAL AGREEMENT OF THE PARTIES. The Executive's
employment pursuant to this Agreement may be terminated at any time upon a
mutual agreement in writing of the Parties. Any such termination of employment
shall have the consequences specified in such agreement.
4.4 COMPENSATION UPON TERMINATION.
4.4.1 DEATH OR COMPLETE DISABILITY. If the Executive's
employment shall be terminated by death or Complete Disability as provided in
Section 4.4.1, the Company shall pay the Executive's accrued Base Salary and
accrued and unused vacation benefits earned
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through the date of termination at the rate in effect at the time of termination
to Executive and/or Executive's heirs, and the Company shall thereafter have no
further obligations to the Executive and/or Executive's heirs under this
Agreement.
4.4.2 CAUSE, NON-RENEWAL OR TERMINATION BY EXECUTIVE. If the
Executive's employment shall be terminated by the Company for Cause, if Company
provides Executive with a Non-Renewal Notice prior to the date of automatic
renewal as provided in Section 1.1, or if the Executive terminates employment
hereunder, the Company shall pay the Executive's accrued Base Salary and accrued
and unused vacation benefits earned through the date of termination at the rate
in effect at the time of the notice of termination to Executive, and the Company
shall thereafter have no further obligations to the Executive under this
Agreement.
4.4.3 WITHOUT CAUSE. If the Company shall terminate the
Executive's employment without Cause during the Term, then upon the Executive's
furnishing to the Company an executed waiver and release of claims (a form of
which is attached hereto as Exhibit A), the Executive shall be entitled to the
following:
(i) The Executive's Base Salary and accrued and unused
vacation earned through the date of termination, subject to standard deductions
and withholdings; and
(ii) Continuation of the Executive's annual Base Salary in
effect at the time of termination for the greater of three years after the
Effective Date or one (1) year after the termination date, subject to standard
deductions and withholdings; and
(iii) Reimbursement of the Executive's health insurance
benefits for the greater of three years after the Effective Date or one (1) year
after the termination date, to the extent permitted by law and by the Company's
then current group health insurance policies; and
(iv) The immediate acceleration of the portion of
Executive's Options which would have vested during the greater of three years
after the Effective Date or one (1) year after the termination date (the
"Severance Options"), such that on the date of termination the Severance Options
are immediately exercisable.
4.4.4 COVENANT NOT TO COMPETE. Notwithstanding any provisions in
this Agreement to the contrary, including any provisions contained in this
Section 4.4, the Company's obligations, and the Executive's rights, pursuant to
Section 4.4.3 shall cease and be rendered a nullity immediately should the
Executive violate the provision of Section 2.2 herein, or should the Executive
violate the terms and conditions of the Executive's Proprietary Information and
Inventions Agreement.
4.4.5 TERMINATION OF OBLIGATIONS. In the event of the
termination of the Executive's employment hereunder and pursuant to this Section
4, the Company shall have no obligation to pay Executive any Base Salary, bonus
or other compensation or benefits, except as provided in this Section 4.4 or for
benefits due to the Executive (and/or the Executive's dependents under the terms
of the Company's benefit plans). The Company may offset any
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amounts Executive owes it or its subsidiaries against any amount it owes
Executive pursuant to this Section 4.4.
4.5 DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
4.5.1 COMPLETE DISABILITY. "Complete Disability" shall mean the
inability of the Executive to perform the Executive's duties under this
Agreement because the Executive has become permanently disabled within the
meaning of any policy of disability income insurance covering employees of the
Company then in force. In the event the Company has no policy of disability
income insurance covering employees of the Company in force when the Executive
becomes disabled, the term "Complete Disability" shall mean the inability of the
Executive to perform the Executive's duties under this Agreement by reason of
any incapacity, physical or mental, which the Board of Directors, based upon
medical advice or an opinion provided by a licensed physician acceptable to the
Board of Directors, determines to have incapacitated the Executive from
satisfactorily performing all of the Executive's usual services for the Company
for a period of at least one hundred twenty (120) days during any twelve (12)
month period (whether or not consecutive). Based upon such medical advice or
opinion, the determination of the Board of Directors shall be final and binding
and the date such determination is made shall be the date of such Complete
Disability for purposes of this Agreement.
4.5.2 FOR CAUSE. The term "Cause" shall mean the following:
(i) The Executive's willful or reckless, and repeated
failure to satisfactorily perform the Executive's job duties under this
Agreement after notice from the Company and thirty (30) days opportunity to
cure;
(ii) Failure by the Executive to comply with all material
applicable laws in performing the Executive's job duties or in directing the
conduct of the Company's business, where such failure has a material adverse
affect on the Company;
(iii) Commission by the Executive of any felony or
intentionally fraudulent act against the Company, or its affiliates, employees,
agents or customers which demonstrates the Executive's untrustworthiness or lack
of integrity;
(iv) The Executive's engaging or in any manner participating
in any activity which is directly competitive with or intentionally injurious to
the Company or any of its affiliates or which violates any material provisions
of Section 6 hereof, without authorization from the Company; or
(v) The Executive's commission of any fraud against the
Company or any of its affiliates or use or intentional appropriation for his
personal use or benefit of any funds or properties of the Company not authorized
by the Board to be so used or appropriated.
4.6 SURVIVAL OF CERTAIN. Sections. Sections 2.2, 4.4.3, 4.4.4, 5, 6,
7, 9, 17, 18 and 19 of this Agreement will survive the termination of this
Agreement.
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5. CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION.
5.1 The Executive agrees to execute and abide by the Proprietary
Information and Inventions Agreement attached hereto as Exhibit B.
5.2 The Executive recognizes that Executive's employment with the
Company will involve contact with information of substantial value to the
Company, which is not generally known in the trade, and which gives the Company
an advantage over its competitors who do not know or use it, including but not
limited to, techniques, designs, drawings, processes, inventions know how,
strategies, marketing, and/or advertising plans or arrangements, developments,
equipment, prototypes, sales, supplier, service provider, vendor, distributor
and customer information, and business and financial information relating to the
business, products, services, practices and techniques of the Company,
(hereinafter referred to as "Confidential and Proprietary Information"). The
Executive will at all times regard and preserve as confidential such
Confidential and Proprietary Information obtained by the Executive from whatever
source and will not, either during Executive's employment with the Company or
thereafter, publish or disclose any part of such Confidential and Proprietary
Information in any manner at any time, or use the same except on behalf of the
Company, without the prior written consent of the Company.
5.3 The Executive agrees that in order to protect the Company's
Confidential and Proprietary Information from unauthorized use that, except with
the prior written consent of the Company's Board of Directors, the Executive
will not, during the Term, and any period during which the Executive is
receiving compensation or any other consideration from the Company, pursuant to
Section 4.4.3 herein, either directly or through others, solicit or attempt to
solicit any employee, consultant or independent contractor of the Company to
terminate his or her relationship with the Company in order to become an
employee, consultant or independent contractor to or for any other person or
business entity; or the business of any customer, supplier, service provider,
vendor or distributor of the Company which, at the time of Executive's
termination or one (1) year immediately prior thereto, was doing business with
the Company or listed on Company's customer, supplier, service provider, vendor
or distributor list.
6. ASSIGNMENT AND BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the
Executive and the Executive's heirs, executors, personal representatives,
assigns, administrators and legal representatives. Because of the unique and
personal nature of the Executive's duties under this Agreement, neither this
Agreement nor any rights or obligations under this Agreement shall be assignable
by the Executive. This Agreement shall be binding upon and inure to the benefit
of the Company and its successors, assigns and legal representatives.
7. NOTICES.
All notices or demands of any kind required or permitted to be given
by the Company or the Executive under this Agreement shall be given in writing
and shall be personally
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delivered (and receipted for) faxed during normal business hours or mailed by
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company:
COVALENT GROUP, INC.
0000 Xxxx Xxxxx Xxxxx
Xx Xxxxx, XX 00000
If to the Executive:
XXXXXXX X. XXXXX, M.D.
000 Xxxxxx Xxx Xxxxx
Xxxx Xxxx, XX 00000
Any such written notice shall be deemed received when personally delivered or
three (3) days after its deposit in the United States mail as specified above.
Either Party may change its address for notices by giving notice to the other
Party in the manner specified in this section.
8. CHOICE OF LAW.
This Agreement is made in Wayne, Pennsylvania. This Agreement shall
be construed and interpreted in accordance with the laws of the State of
Pennsylvania.
9. INTEGRATION.
This Agreement contains the complete, final and exclusive agreement
of the Parties relating to the terms and conditions of the Executive's
employment, and supersedes all prior and contemporaneous oral and written
employment agreements or arrangements between the Parties.
10. AMENDMENT.
This Agreement cannot be amended or modified except by a written
agreement signed by the Executive and the Company.
11. WAIVER.
No term, covenant or condition of this Agreement or any breach
thereof shall be deemed waived, except with the written consent of the Party
against whom the wavier is claimed, and any waiver or any such term, covenant,
condition or breach shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other term, covenant, condition or breach.
12. SEVERABILITY.
The finding by a court of competent jurisdiction of the
unenforceability, invalidity or illegality of any provision of this Agreement
shall not render any other provision of this Agreement unenforceable, invalid or
illegal. Such court shall have the authority to modify or
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replace the invalid or unenforceable term or provision with a valid and
enforceable term or provision which most accurately represents the Parties'
intention with respect to the invalid or unenforceable term or provision.
13. INTERPRETATION; CONSTRUCTION.
The headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this Agreement. This
Agreement has been drafted by legal counsel representing the Company, but the
Executive has been encouraged, and has consulted with, Executive's own
independent counsel and tax advisors with respect to the terms of this
Agreement. The Parties acknowledge that each Party and its counsel has reviewed
and revised, or had an opportunity to review and revise, this Agreement, and the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement.
14. REPRESENTATIONS AND WARRANTIES.
The Executive represents and warrants that Executive is not
restricted or prohibited, contractually or otherwise, from entering into and
performing each of the terms and covenants contained in this Agreement, and that
Executive's execution and performance of this Agreement will not violate or
breach any other agreements between the Executive and any other person or
entity.
15. COUNTERPARTS.
This Agreement may be executed in two counterparts, each of which
shall be deemed an original, all of which together shall contribute one and the
same instrument.
16. ARBITRATION.
To ensure rapid and economical resolution of any disputes which may
arise under this Agreement, the Executive and the Company agree that any and all
disputes or controversies of any nature whatsoever, arising from or regarding
the interpretation, performance, enforcement or breach of this Agreement shall
be resolved by confidential, final and binding arbitration (rather than trial by
jury or court or resolution in some other forum) to the fullest extent permitted
by law. Any arbitration proceeding pursuant to this Agreement shall be conducted
by the American Arbitration Association ("AAA") in Pennsylvania under the then
existing employment-related AAA arbitration rules. If for any reason all or part
of this arbitration provision is held to be invalid, illegal, or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other portion of
this arbitration provision or any other jurisdiction, but this provision will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable part or parts of this provision had never been
contained herein, consistent with the general intent of the Parties insofar as
possible.
I HAVE READ SECTION 17 AND AGREE TO ARBITRATE ANY DISPUTE IDENTIFIED ABOVE.
______ (EXECUTIVE'S INITIALS)
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17. INJUNCTIVE RELIEF.
The Executive is obligated under this Agreement to render services
and comply with covenants of a special, unique, unusual and extraordinary
character, thereby giving this Agreement peculiar value, so that the loss of
such service or violation by the Executive of this Agreement, including, but not
limited to, the Proprietary Information and Inventions Agreement, could not
reasonably or adequately be compensated in damages in an action at law.
Therefore, notwithstanding Section 18 herein, in addition to any other remedies
or sanctions provided by law, whether criminal or civil, and without limiting
the right of the Company and successors or assigns to pursue all other legal and
equitable rights available to them, the Company shall have the right during the
Executive's employment hereunder (or thereafter with respect to obligation
continuing after the termination of this Agreement) to compel specific
performance hereof by the Executive or to obtain temporary and permanent
injunctive relief against violations hereof by the Executive, including, but not
limited to violations of the Proprietary Information and Inventions Agreement,
and, in furtherance thereof, to apply to any court with jurisdiction over the
Parties to enforce the provisions hereof.
18. TRADE SECRETS OF OTHERS.
It is the understanding of both the Company and the Executive that
the Executive shall not divulge to the Company and/or its subsidiaries any
confidential information or trade secrets belonging to others, including the
Executive's former employers, nor shall the Company and/or its affiliates seek
to elicit from the Executive any such information. Consistent with the
foregoing, the Executive shall not provide to the Company and/or its affiliates,
and the Company and/or its affiliates shall not request, any documents or copies
of documents containing such information.
19. ADVERTISING WAIVER.
During the Term of this Agreement, the Executive agrees to permit
the Company and/or its affiliates, and persons or other organizations authorized
by the Company and/or its affiliates, to use, publish and distribute advertising
or sales promotional literature concerning the products and/or services of the
Company and/or its affiliates, or the machinery and equipment used in the
provision thereof, in which the Executive's name and/or pictures of the
Executive taken in the course of the Executive's provision of services to the
Company and/or its affiliates, appear. The Executive hereby waives and releases
any claim or right the Executive may otherwise have arising out of such use,
publication or distribution.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
COVALENT GROUP, INC.
By:
-----------------------------------------
Its:
----------------------------------------
Dated:
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EXECUTIVE:
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XXXXXXX X. XXXXX, M.D.
Dated:
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EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in
Section 4 of the Employment Agreement dated ________ __, 1999, to which this
form is attached, I, XXXXXXX X. XXXXX, M.D., hereby furnish COVALENT GROUP, INC.
(the "Company"), with the following release and waiver ("Release and Waiver").
I hereby release, and forever discharge the Company, its officers,
directors, agents, employees, stockholders, successors, assigns affiliates and
Benefit Plans, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising at any time prior
to and including my employment Termination Date with respect to any claims
relating to my employment and the termination of my employment, including but
not limited to, claims pursuant to any federal, state or local law relating to
employment, including, but not limited to, discrimination claims, claims under
the Federal Age Discrimination in Employment Act of 1967, as amended ("ADEA"),
or claims for wrongful termination, breach of the covenant of good faith,
contract claims, tort claims, and wage or benefit claims, including but not
limited to, claims for salary, bonuses, commissions, stock, stock options,
vacation pay, fringe benefits, severance pay or any form of compensation.
I also acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to any claims I may have against the
Company.
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under ADEA, that this Release and Waiver is knowing and
voluntary, and that the consideration given for this Release and Waiver is in
addition to anything of value to which I was already entitled as an executive of
the Company. I further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the Release and Waiver granted
herein does not relate to claims which may arise after this Release and Waiver
is executed; (b) I have the right to consult with an attorney prior to executing
this Release and Waiver (although I may choose voluntarily not to do so); and if
I am 40 years or older upon execution of this Release and Waiver: (c) I have
twenty-one (21) days from the date of termination of my employment with the
Company in which to consider this Release and Waiver (although I may choose
voluntarily to execute this Release and Waiver earlier); (d) I have seven (7)
days following the execution of this Release and Waiver to revoke my consent to
this Release and Waiver; and (e) this Release and Waiver shall not be effective
until the seven (7) day revocation period has expired.
Date: By:
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XXXXXXX X. XXXXX, M.D.
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EXHIBIT B
COVALENT GROUP, INC.
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
(NON-CALIFORNIA FORM)
In consideration of my employment or continued employment by COVALENT
GROUP, INC. (the "COMPANY"), and the compensation now and hereafter paid to me,
I hereby agree as follows:
1. NONDISCLOSURE.
1.1 RECOGNITION OF COMPANY'S RIGHTS; NONDISCLOSURE. At all times during
my employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 PROPRIETARY INFORMATION. The term "PROPRIETARY INFORMATION" shall
mean any and all confidential and/or proprietary knowledge, data or information
of the Company. By way of illustration but not limitation, "PROPRIETARY
INFORMATION" includes: tangible and intangible information relating to
antibodies and other biological materials, cell lines, samples of assay
components, media and/or cell lines and procedures and formulations for
producing any such assay components, media and/or cell lines, formulations,
products, processes, know-how, designs, formulas, methods, developmental or
experimental work, clinical data, improvements, discoveries, plans for research,
development, new products, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs, suppliers and
customers, and information regarding the skills and compensation of other
employees of the Company. Notwithstanding the foregoing, it is understood that,
at all such times, I am free to use information which is generally known in the
trade or industry, which is not gained as result of a breach of this Agreement,
and my own skill, knowledge, know-how and experience to whatever extent and in
whichever way I wish.
1.3 THIRD PARTY INFORMATION. I understand, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("THIRD PARTY INFORMATION") subject to a
duty on the Company's part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During the term of my
employment and thereafter, I will hold Third Party Information in the strictest
confidence and will not disclose to anyone (other than Company personnel who
need to know such information in connection with their work for the Company) or
use, except in connection with my work for the Company, Third Party Information
unless expressly authorized by an officer of the Company in writing.
1.4 NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS AND OTHERS.
During my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. ASSIGNMENT OF INVENTIONS.
2.1 PROPRIETARY RIGHTS. The term "PROPRIETARY RIGHTS" shall mean all
trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2 PRIOR INVENTIONS. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To
16
preclude any possible uncertainty, I have set forth on Exhibit A (Previous
Inventions) attached hereto a complete list of all Inventions that I have, alone
or jointly with others, conceived, developed or reduced to practice or caused to
be conceived, developed or reduced to practice prior to the commencement of my
employment with the Company, that I consider to be my property or the property
of third parties and that I wish to have excluded from the scope of this
Agreement (collectively referred to as "PRIOR INVENTIONS"). If disclosure of any
such Prior Invention would cause me to violate any prior confidentiality
agreement, I understand that I am not to list such Prior Inventions in Exhibit A
but am only to disclose a cursory name for each such invention, a listing of the
party(ies) to whom it belongs and the fact that full disclosure as to such
inventions has not been made for that reason. A space is provided on Exhibit A
for such purpose. If no such disclosure is attached, I represent that there are
no Prior Inventions. If, in the course of my employment with the Company, I
incorporate a Prior Invention into a Company product, process or machine, the
Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license (with rights to sublicense through
multiple tiers of sublicensees) to make, have made, modify, use and sell such
Prior Invention. Notwithstanding the foregoing, I agree that I will not
incorporate, or permit to be incorporated, Prior Inventions in any Company
Inventions without the Company's prior written consent.
2.3 ASSIGNMENT OF INVENTIONS. Subject to Sections 2.4, and 2.6, I
hereby assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "COMPANY INVENTIONS."
2.4 NONASSIGNABLE INVENTIONS. I recognize that, in the event of a
specifically applicable state law, regulation, rule, or public policy ("SPECIFIC
INVENTIONS LAW"), this Agreement will not be deemed to require assignment of any
invention which qualifies fully for protection under a Specific Inventions Law
by virtue of the fact that any such invention was, for example, developed
entirely on my own time without using the Company's equipment, supplies,
facilities, or trade secrets and neither related to the Company's actual or
anticipated business, research or development, nor resulted from work performed
by me for the Company. In the absence of a Specific Inventions Law, the
preceding sentence will not apply.
2.5 OBLIGATION TO KEEP COMPANY INFORMED. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection under the
provisions of a Specific Inventions Law; and I will at that time provide to the
Company in writing all evidence necessary to substantiate that belief. The
Company will keep in confidence and will not use for any purpose or disclose to
third parties without my consent any confidential information disclosed in
writing to the Company pursuant to this Agreement relating to Inventions that
qualify fully for protection under a Specific Inventions Law. I will preserve
the confidentiality of any Invention that does not fully qualify for protection
under a Specific Inventions Law.
2.6 GOVERNMENT OR THIRD PARTY. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 WORKS FOR HIRE. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 ENFORCEMENT OF PROPRIETARY RIGHTS. I will assist the Company in
every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such Proprietary
Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all
countries shall continue beyond the termination of my employment, but the
Company shall
17
compensate me at a reasonable rate after my termination for the time actually
spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection with the
actions specified in the preceding paragraph, I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and
attorney in fact, which appointment is coupled with an interest, to act for and
in my behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. RECORDS. I agree to keep and maintain adequate and current
records (in the form of notes, sketches, drawings and in any other form that may
be required by the Company) of all Proprietary Information developed by me and
all Inventions made by me during the period of my employment at the Company,
which records shall be available to and remain the sole property of the Company
at all times.
4. NO CONFLICTING OBLIGATION. I represent that my performance of
all the terms of this Agreement and as an executive of the Company does not and
will not breach any agreement to keep in confidence information acquired by me
in confidence or in trust prior to my employment by the Company. I have not
entered into, and I agree I will not enter into, any agreement either written or
oral in conflict herewith.
5. RETURN OF COMPANY DOCUMENTS. When I leave the employ of the
Company, I will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, and documents, together with all copies
thereof, and any other material containing or disclosing any Company Inventions,
Third Party Information or Proprietary Information of the Company. I further
agree that any property situated on the Company's premises and owned by the
Company, including disks and other storage media, filing cabinets or other work
areas, is subject to inspection by the officers of the Company at any time with
or without notice. Prior to leaving, I will cooperate with the Company in
completing and signing the Company's termination statement.
6. LEGAL AND EQUITABLE REMEDIES. Because my services are
personal and unique and because I may have access to and become acquainted with
the Proprietary Information of the Company, the Company shall have the right to
enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of this
Agreement.
7. NOTICES. Any notices required or permitted hereunder shall be
given to the appropriate party at the address specified below or at such other
address as the party shall specify in writing. Such notice shall be deemed given
upon personal delivery to the appropriate address or if sent by certified or
registered mail, three (3) days after the date of mailing.
8. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the
employ of the Company, I hereby consent to the notification of my new employer
of my rights and obligations under this Agreement.
9. GENERAL PROVISIONS.
9.1 GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by and construed according to the laws of the State of
Pennsylvania, as such laws are applied to agreements entered into and to be
performed entirely within Pennsylvania between Pennsylvania residents. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in Pennsylvania for any lawsuit filed there against me by Company
arising from or related to this Agreement.
9.2 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If moreover, any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
9.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
9.4 SURVIVAL. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
18
9.5 EMPLOYMENT. I agree and understand that nothing in this
Agreement shall confer any right with respect to continuation of employment by
the Company, nor shall it interfere in any way with my right or the Company's
right to terminate my employment at any time, with or without cause.
9.6 WAIVER. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
9.7 ENTIRE AGREEMENT. The obligations pursuant to Sections 1 and 2
of this Agreement shall apply to any time during which I was previously
employed, or am in the future employed, by the Company as a consultant if no
other agreement governs nondisclosure and assignment of inventions during such
period. Except as provided in the Employment Agreement between the parties, this
Agreement is the final, complete and exclusive agreement of the parties with
respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my
employment with the Company, namely: ___________, 19__.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I
HAVE COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated:
-----------------------
-----------------------------------------
(SIGNATURE)
-----------------------------------------
XXXXXXX X. XXXXX, M.D.
ACCEPTED AND AGREED TO:
COVALENT GROUP, INC.
By:
---------------------------------------
Title:
------------------------------------
------------------------------------------
(Address)
------------------------------------------
Dated:
-----------------------
19
EXHIBIT A
TO: COVALENT GROUP, INC.
FROM: XXXXXXX X. XXXXX, M.D.
DATE:
----------------------
SUBJECT: PREVIOUS INVENTIONS
1. Except as listed in Section 2 below, the following is a complete
list of all inventions or improvements relevant to the subject matter of my
employment by COVALENT GROUP, INC. (the "COMPANY") that have been made or
conceived or first reduced to practice by me alone or jointly with others prior
to my engagement by the Company:
[ ] No inventions or improvements.
[ ] See below:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
[ ] Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the
disclosure under Section 1 above with respect to inventions or improvements
generally listed below, the proprietary rights and duty of confidentiality with
respect to which I owe to the following party(ies):
INVENTION OR IMPROVEMENT PARTY(IES) RELATIONSHIP
1. ------------------------ -------------- --------------
2. ------------------------ -------------- --------------
3. ------------------------ -------------- --------------
[ ] Additional sheets attached.
