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EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and effective as of the
dates written below by and between COLLABORATIVE CLINICAL RESEARCH, INC.
("Company") and XXXXXXX X. XXXX (the "Employee").
WITNESSETH:
WHEREAS, the Employee wishes to become employed by the
Company; and
WHEREAS, the Company desires to employ Employee consistent
with the terms of this Agreement; and
WHEREAS, the Employee and the Company desire to enter into an
agreement expressly indicating the terms and conditions of their relationship;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the Company and the Employee agree as follows:
1. DUTIES. The Company employs Employee in the position of
Vice President, Sales & Marketing. Employee shall perform his duties under the
direction of the Chief Operating Officer, General Manager or designee of the
Company. During the course of his employment, Employee 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 and shall use
all diligence to make and keep the Company's trade and/or business. Employee
shall devote his full business time and efforts to the affairs of the Company.
2. SALARY. The Company will pay Employee a base salary of One
Hundred Thirty Thousand Dollars ($ 130,000.00) per year in accordance with the
Company's payroll practices, or in such other periodic method to which both
parties agree, minus appropriate withholdings and deductions. The Company will
review Employee's compensation hereunder on an annual basis, and may adjust the
above-indicated level, in its sole discretion, based on Employee's performance
of his duties hereunder and/or the performance of the Company. 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 length of employment of Employee, other than
as set forth herein.
3. BENEFITS. During the course of employment, Employee shall
be entitled to participate in any employment benefit 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, 401K plan,
Stock Option Agreements (Exhibit B & C), Executive Bonus Plan (Exhibit D) and
all other benefit plans afforded to other similarly-situated employees. A copy
of these documents are attached as Exhibits and are incorporated into this
agreement by reference herein.
4. EXPENSES. During the original term of this Agreement only,
and not during any renewal term, Company shall continue payment for the
Employees' automobile (1996 Toyota Avalon, VIN # 0X0XX00X0XX000000) in the
currently agreed upon fashion (CCR to pay for monthly lease amount and
insurance; Xxxx to pay $98.67 per pay period toward 1/2 monthly lease amount and
for yearly license). Employee shall also be reimbursed for expenses reasonably
incurred in connection with the business of the Company in accordance with the
practices, policies and programs of the Company.
5. VACATIONS. During the course of employment, Employee shall
be entitled to Paid Time Off (PTO) time according to the PTO Policy, to be taken
at a time or times acceptable to the Company and otherwise consistent with the
terms and conditions of this Agreement and the Company's PTO Policy.
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6. TERM AND TERMINATION OF AGREEMENT. The Term of this
Agreement shall commence on the date written below and shall continue for a
period of one (1) year, and thereafter automatically renew for successive one
(1) years terms unless terminated as provided in paragraphs 6.1, 6.2, 6.3, 6.5,
6.6, 6.7, 6.8 or 6.9 below.
6.1 TERMINATION FOR DEATH. This Agreement shall terminate
automatically upon the Employee's death. With the exception of any benefits
under the Company's employee benefit plans that may inure to the benefit of
Employee's beneficiaries, upon Employee's death, the Company shall have no
further obligations under the terms and conditions of this Agreement.
6.2 TERMINATION FOR DISABILITY. The Company and the
Employee acknowledge and agree that the essential functions of the Employee's
position are unique and critical to the Company and that a disability condition
which causes the Employee 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 Employee and, if necessary or appropriate, with Employee's
physician(s), that the Employee is disabled and unable to perform the essential
function of his position with or without reasonable accommodations, it may give
Employee written notice of its intention to terminate Employee's employment. If
Employee's employment is terminated pursuant to this provision during the term
of this Agreement, employee shall be entitled to his salary through the date of
such termination, and to any other employee benefits maintained or established
by the Company for its similarly situated employees.
6.3 TERMINATION FOR CAUSE. The Company may terminate
Employee's employment for cause by written notification citing the specific
reasons for termination. For purposes of this Agreement, "Cause" means:
(1) Employee's failure to complete satisfactorily the
Company's routine pre-employment background check;
(2) Employee's conviction of a felony involving moral
turpitude or a felony in connection with his
employment;
(3) Employee's theft, fraud, embezzlement, material
willful destruction of property or material
disruption of the operations of the Company;
(4) Employee's use or possession of illegal drugs
and/or alcohol on Company premises or reporting to
work under the influence of same; or
(5) Employee's 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; or
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 Employee's behalf prior to such termination, if any.
6.4 SUSPENSION. In the event Employee engages in conduct
subjecting Employee to potential civil or criminal liability which could have an
adverse effect upon the Company's reputation or business or is related to
Employee's duties and responsibilities, the Company reserves the right to
immediately suspend Employee with pay, pending investigation and/or the outcome
of the matter.
6.5 TERMINATION BY EMPLOYEE. Employee may terminate this
Agreement by providing at least thirty (30) days notice in writing to such
effect, prior to the end of a contract year. If the Employee terminates in
accordance with this paragraph 6.5 the Agreement shall expire and terminate on
its anniversary date. Salary and other benefits shall cease on the Agreement
expiration date except that any accrued benefits such as 401k balances, paid
time off balances, etc. shall be compensated for.
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6.6 TERMINATION BY COMPANY AT END OF CONTRACT YEAR. The
Company may terminate this Agreement at the end of a contract year by providing
written notice at least thirty (30) days prior to the Anniversary Date. In the
event of such a termination by the Company, other than for cause as described in
paragraph 6.3, the Employee shall be provided with salary continuation and
outplacement assistance in accordance with paragraph 6.8 (ii).
6.7 TERMINATION BY EMPLOYEE FOR GOOD REASON. The Employee
may terminate his employment under this agreement for Good Reason at any time
during the term of this agreement by giving written notice to the Company, with
such notice being not less than thirty (30) days notice prior to the identified
date of separation. For purposes of this agreement, Good Reason shall be limited
to a reduction in job title or responsibilities, a reduction in annual base
salary or a requirement by the Company to relocate business offices to a new
city. Such changes in the employment status of Employee may from time to time
occur, but only by mutual agreement of the parties and evidenced by a written
memorandum executed by the parties. In the event Employee exercises his right to
terminate the agreement for Good Reason, Employee shall at the time of such
termination be entitled to receive (i) his salary through the date of such
termination and for a period of one (1) year after such termination, and (ii)
outplacement services from an agency to be selected by the Company in an amount
not to exceed Ten Thousand ($10,000.00) Dollars.
6.8 TERMINATION OTHER THAN FOR CAUSE. The Company may
terminate the Employee for other than Cause at any time during the term of this
Agreement, upon not less than thirty (30) days notice. In the event the Company
exercises its right to terminate the Employee other than for Cause at any time
during this Agreement, Employee shall at the time of such termination be
entitled to receive (i) his salary through the date of such termination and for
a period of one (1) year after such termination, and (ii) outplacement services
from an agency to be selected by the Company in an amount not to exceed Ten
Thousand ($10,000.00) Dollars.
6.9 CHANGE OF CONTROL. If a Change of Control (as defined
in this paragraph) shall occur during the Term of this Agreement, and Employee's
employment is not continued by the purchaser or successor, Employee shall at the
time of such non-continuation of employment be entitled to receive (i) his
salary through the date of such non-continuation and for a period of one (1)
year after such non-continuation, and (ii) outplacement services from an agency
to be selected by the Company in an amount not to exceed Ten Thousand
($10,000.00) Dollars. 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 sale, liquidation or dissolution of the Company or the Network Division.
7. RESTRICTIVE COVENANTS OF EMPLOYEE. The Employee
acknowledges and agrees that he has previously executed a non-compete
non-disclosure agreement (dated 2/21/97) and that this agreement currently
remains in full force with the Company. A copy of this document is attached as
Exhibit A and is incorporated into this agreement by reference herein.
8. REPRESENTATIONS OF EMPLOYEE. Employee represents and
warrants to the Company that he has the capacity to enter into this Agreement
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 Agreement and/or the services to be provided to the Company
by Employee under this Agreement.
9. REFORMATION OF AGREEMENT; SEVERABILITY. In the event that
any provision or term of this Agreement 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 Agreement shall remain in full
force and effect to the maximum extent permitted and that the Agreement shall be
enforceable as if such void or unenforceable provision or term had never been a
part hereof.
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10. ASSIGNMENT. This Agreement shall inure to the benefit of,
and shall be binding upon, the Company, its successors and assigns. Employee
shall not assign this Agreement without the prior written consent of the
Company.
11. NOTICE. Any notice required to be given under the terms of
this Agreement 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 to the following:
To Company: General Counsel
Collaborative Clinical Research, Inc.
00000 Xxxxxxx Xxxx.
Xxxxxxxxx, Xxxx 00000
000-000-0000
000-000-0000 facsimile
To Employee: Xxxxxxx X. Xxxx
0000 Xxxxxxxxxx Xxx.
Xxxxxxxxxx, XX 00000
000-000-0000
12. ENTIRE AGREEMENT; AMENDMENTS; WAIVERS. This Agreement
contains the entire agreement between the parties hereto with respect to the
subject matter hereof and replaces or supersedes any previous agreement on such
subject matter. It may not be changed orally, but only by agreement, in writing,
signed by each of the parties hereto. The terms or covenants of this Agreement
may be waived only by a written instrument specifically referring to this
Agreement, 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 Employee's
obligations under this Agreement shall in no manner affect the Company's right
to enforce any provisions of this Agreement 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.
13. BINDING ARBITRATION. In the event, upon termination of
Employee's employment, a disagreement exists between Employee and the Company as
to which section of Section 6 governs such termination (i.e., if the party
terminating Employee's employment (the "Terminating Party") claims that "Death,
"Disability", "Cause", "End of Contract Year", "Other Than Cause", or "Change of
Control" exists and the other party (the "Disputing Party") disputes such claim,
the issue of which section should govern such termination shall be submitted by
the parties to binding arbitration in accordance with the provisions of this
Section 6. Within thirty (30) days after termination of Employee's employment
the Disputing Party may challenge the claimed basis for termination by giving
written notice (the "Dispute Notice") of such challenge to the Terminating
Party. Within fourteen (14) days after delivery of such Dispute Notice, the
parties shall appoint an independent arbitrator experienced in employment
matters who shall determine which section of this Section 6 applies to the
termination. In the event the parties cannot agree on an arbitrator within
fourteen (14) days after delivery of the Dispute Notice, then each party shall
appoint one arbitrator, and the two arbitrators shall appoint a third
arbitrator. In either case, the determination of the arbitrator or the majority
of the arbitrators, as the case may be, shall be final and binding upon both
Employee and the Company. The authority of the arbitrators hereunder shall be
limited to determining which section of this Section 6 governs, and the
arbitrators shall not have authority to reinstate Employee, to alter the amount
of the payment due to Employee under the applicable section of this Section 6,
or to award Employee or the Company any other amounts by way of damages or
otherwise. Any arbitration hereunder shall be conducted in Cleveland, Ohio in
accordance with the Rules of the American Arbitration Association. 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. The costs of the arbitration process
will be equally paid by the Terminating Party and Disputing Party.
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14. HEADINGS. The headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
15. COUNTERPARTS. This Agreement 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.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio without giving effect
to the conflict of law provisions thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the dates written below.
Date: 12/17/98 /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
COLLABORATIVE CLINICAL RESEARCH, INC.
Date: 12/17/98 By: /s/ Xxxxxxx X. Xxxxxx
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Title: General Manager
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