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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT is made and effective as of the
dates written below by and between COLLABORATIVE CLINICAL RESEARCH, INC.
("Company") and XXXX XXXXXX (the "Employee").
WITNESSETH:
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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
Director, Technology Services of DataTRAK, Inc. ("DataTRAK"). Employee shall
perform his duties under the direction of the President of DataTRAK. 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 Thousand Dollars ($100,000.00) 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 DataTRAK. 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. STOCK OPTION PLAN. Employee shall receive a stock option
plan to receive 12,000 shares of Collaborative Clinical Research, Inc. Common
Stock ("the Common Stock") at a per share exercise price equal to the closing
price of the Common Stock on the date of Employee's execution of this Agreement.
Employee shall have 3,000 shares of the Common Stock vest on each of the first,
second, third, and fourth anniversary dates of this Agreement. A separate Stock
Option Agreement shall be executed on or near the execution of this Agreement.
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4. 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, as well as
a 401K plan, and all paid holidays afforded to other similarly-situated
employees.
5. VACATIONS. During the course of employment, Employee shall
be entitled to paid vacation time equal to fifteen (15) days, 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 vacation pay policy.
6. RELOCATION EXPENSES. The Company will reimburse Employee
for all reasonable relocation expenses, including the expense of moving
Employee's possessions from Moline, Illinois to the Cleveland, Ohio area, a real
estate professional's commission or fee on the sale of Employee's residence, but
not to exceed six percent (6%), and reasonable expenses incurred in travel to
the Cleveland, Ohio area for the purpose of locating housing. The Company
further agrees to provide Employee, at Company expense, with a one-bedroom
furnished apartment for his use during the period between his commencement of
employment and the relocation of Employee's family to the Cleveland, Ohio area.
7. TERM AND TERMINATION OF AGREEMENT. The Term of this
Agreement shall commence on the date written below and shall continue for a
period of three (3) years, unless sooner terminated as provided in paragraphs
7.1, 7.2, 7.3, 7.5, 7.6, or 7.7 below.
7.1 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 which 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.
7.2 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.
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7.3 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.
7.4 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 without pay, pending investigation and/or the
outcome of the matter.
7.5 TERMINATION BY EMPLOYEE. Employee may terminate
his employment and this Agreement at any time for any or no reason. Employee
acknowledges and agrees that a voluntary resignation, termination or retirement
by Employee prior to the expiration of this Agreement shall result in the
termination of this Agreement and all rights and obligations under this
Agreement shall immediately cease, except any fringe benefits which have vested
on Employee's behalf prior to such termination.
7.6 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
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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.
7.7 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
his salary through the date of such non-continuation and for a period of one (1)
year after such non-continuation. 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.
8. RESTRICTIVE COVENANTS OF EMPLOYEE.
8.1 NONCOMPETITION. During the period of Employee's
employment by the Company and, (i) in the case of the termination of Employee's
employment under either Section 7.6 or 7.7 hereof, for a period of twelve (12)
months thereafter, or (ii) in the case of the termination of Employee's
employment under any provision of Section 7 hereof other than Section 7.6 or
7.7, for a period of fifteen (15) months (the "Noncompetition Period"), Employee
shall not, directly or indirectly, whether as an individual on his own account,
or as a shareholder, partner, joint venturer, director, officer, employee,
consultant, creditor and/or agent or otherwise, in any State of the United
States in which the Company now or hereafter conducts business:
(iii) enter into or engage in any business including, without
limitation, for a clinical contract research organization (a " clinical
CRO"), or otherwise perform any clinical contract research, which
competes with the business now or hereafter carried on by the Company
or any parent or subsidiary of, or entity controlled by the Company
("Company Affiliates");
(iv) solicit customers, business patronage or orders on
behalf of, or perform other services for, any business, including,
without limitation, any clinical CRO, which directly or indirectly
competes with the business of the Company or any Company Affiliate; or
(v) promote or assist, financially or otherwise, any person,
firm, association, Company or other entity, including, without
limitation, any clinical CRO, engaged in the business which competes
with the current or future business of the Company or any Company
Affiliates;
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provided, however, that the foregoing covenant shall not be deemed to have been
violated solely by (a) the ownership of equity securities of any 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 (b) the ownership for
investment purposes of less than five percent (5%) of the equity securities of
an entity which has equity securities listed on a national securities exchange
or publicly traded in the over-the-counter-market.
8.2 CONFIDENTIALITY AND WORK PRODUCT. Employee
acknowledges that during his/her employment with the Company he/she 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/her or otherwise, including, without limitation, trade secrets,
design information, 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"). Employee further acknowledges that in
the course of his/her employment he/she may be producing designs, analyses,
recommendations, reports, complications, 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, Employee agrees that, from and after
the date hereof:
(i) he/she will promptly disclose in writing to the
Company all Work Product;
(ii) all Proprietary Information, all Work Product
and all rights therein are and shall be the sole and exclusive property
of the Company and all rights or interest of Employee therein are
hereby assigned by Employee to the Company, and Employee 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;
(iii) Employee shall not divulge, disclose or
communicate to any third party in any manner, directly or indirectly,
Proprietary Information or Work Product;
(iv) Employee will not use for his/her 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;
(v) upon the termination of his/her employment,
Employee 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 Proprietary Information or Work Product; and
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(vi) Following termination of the Noncompetition
Period, the obligations of Employee in this Section 8.2 shall not apply
to Proprietary Information or Work Product of DataTRAK, INC. as it
existed on the effective date hereof but shall continue for all
Proprietary Information of the Company or any Affiliate, whenever
developed, and any Proprietary Information and Work Product of Data
TRAK, Inc. for the period after such effective date.
8.3 NO INTERFERENCE. During the Noncompetition
Period, Employee agrees that he/she shall not:
(i) take any action which would:
(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;
(ii) make remarks or take any other action which
disparages or diminishes the reputation of the Company or any Company
Affiliate;
(iii) without limiting the generality of the
foregoing, without the prior written consent of the Chief Executive
Officer, 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 (iii) shall not
apply with respect to such person terminated by action of the Company
or any Company Affiliate or who has resigned their position with the
Company or any Company Affiliate.
8.4 INJUNCTIVE RELIEF. Both parties hereto recognize
that the services to be rendered by Employee to the Company are special, unique
and of extraordinary character, that the market for the Company's services and
products is worldwide, and that if Employee hereafter fails to comply with the
restrictions and obligations imposed upon him/her 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.
9. 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.
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10. 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.
11. 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.
12. 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.
13. 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.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the dates written below.
Date: July 1, 1998 /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
COLLABORATIVE CLINICAL RESEARCH, INC.
Date: July 2, 1998 By: /s/ Xxxxxxx X. Xxxxx
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Title: President & CEO
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