SERVICE AGREEMENT
THIS SERVICE AGREEMENT (this “Agreement”) is made as of April 26, 2007, by and between Cross
Shore Acquisition Corporation, a Delaware corporation (the “Company”), and Xxxxxx X. Xxxx
(“Employee”). Any capitalized terms used herein and otherwise not defined shall have the meanings
assigned to them in Section 11 hereof.
In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Employment. The Company shall employ Employee, and Employee hereby accepts
employment with the Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the Effective Date (as defined in Section 20 hereof) and ending as provided in
Section 4 hereof (the “Term”).
2. Position and Duties.
(a) Employee shall serve as an Executive Director of the Company and shall have the normal
duties, responsibilities and authority of an Executive Director, subject to the overall discretion
and authority of the Chairman of the Board.
(b) Employee shall report to the Chairman of the Board, and Employee shall devote his best
efforts to the business and affairs of the Company and its Subsidiaries; provided, that in
no event shall Employee be required to devote any specified amount of his business time and
attention to the business and affairs of the Company and its Subsidiaries. Employee shall perform
his duties and responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner.
3. Base Salary and Benefits.
(a) During the Term, Employee shall be entitled to (i) receive a base salary of $60,000 per
annum or such other higher rate as the Board may designate from time to time (the “Base Salary”),
which shall be payable in regular installments in accordance with the Company’s general payroll
practices and shall be subject to customary withholding and (ii) participate in all benefit plans,
including medical, dental, retirement, short- and long-term disability and other such plans
established by the Company from time to time for executives or employees of the Company generally.
In addition, Employee shall be eligible to (i) participate in any employee equity incentive plan
established by the Company from time to time for executives or employees of the Company generally
and (ii) receive an annual bonus, to such extent and in such amount, respectively, as determined by
the Board or the compensation committee thereof (if any) in its sole discretion.
(b) The Company shall reimburse Employee for all reasonable expenses incurred by him in the
course of performing his duties under this Agreement which are consistent with the Company’s
policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company’s requirements with respect
to reporting and documentation of such expenses.
4. Term.
(a) The Term shall end one (2) years from the Effective Date, except that the Term shall be
automatically renewed for successive one (1) year periods after the initial Term unless terminated
in writing by either the Company or Employee at least thirty (30) days prior to the end of the Term
or any renewal thereof; provided that (i) the Term and Employee’s employment shall
terminate prior to such date upon Employee’s death or permanent Disability and (ii) the Employee’s
employment may be terminated by the Company or the Employee at any time prior to such date.
(b) The Employee’s employment may be terminated by the Company at any time for any reason. If
Employee’s employment is terminated by the Company without Cause during the Term of this Agreement,
Employee shall be entitled to receive from the Company (i) his then-applicable Base Salary for a
period of one (1) year following the date of termination (the “Severance Period”), (ii) the pro
rata portion (based on the number of full months of service by Employee in the year in which
Employee’s employment is terminated) of any bonus to which employee is entitled for the year in
which Employee’s employment is terminated and (iii) if Employee elects coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1986, as amended, payment of or reimbursement for
Employee’s premiums during the Severance Period thereunder. Any such amounts payable under this
Section 4(b) will be payable at such times as such amounts would have been payable had Employee not
been terminated. Notwithstanding anything in this Agreement to the contrary, the Company shall
have no obligation to pay any amounts payable under this Section 4(b) during such times as Employee
is in breach of Sections 5, 6, 7 or 8 hereof. As a condition to the Company’s obligations (if any)
to make severance payments pursuant to this Section 4(b), Employee will execute and deliver a
general release in form and substance reasonably satisfactory to the Company.
(c) If this Agreement is terminated pursuant to Section 4(a)(i) above, Employee shall be
entitled to receive his Base Salary through the date of termination. Any such amounts payable
under this Section 4(c) will be payable at such times as such amounts would have been payable had
Employee not been terminated.
(d) If this Agreement is terminated by the Company for Cause or by the Employee, Employee
shall be entitled to receive his Base Salary through the date of termination. Any such amounts
payable under this Section 4(d) will be payable at such times as such amounts would have been
payable had Employee not been terminated.
(e) The Company may offset any amounts Employee owes it or its Subsidiaries for liquidated
damages claims against any amounts it owes Employee hereunder.
5. Confidential Information. Employee acknowledges that the information, observations
and data obtained by him or her while employed by the Company and its Subsidiaries concerning the
business or affairs of the Company or any Subsidiary (“Confidential
Information”) are the property of the Company or such Subsidiary. Therefore, Employee agrees
that he shall not disclose to any unauthorized person or use for his own purposes any Confidential
Information without the prior written consent of the Board, unless and to the extent
-2-
that the
aforementioned matters become generally known to and available for use by the public other than as
a result of Employee’s acts or omissions. Employee shall deliver to the Company at the termination
of his employment, or at any other time the Company may request, all memoranda, notes, plans,
records, reports, computer tapes, printouts and software and other documents and data (and copies
thereof) relating to the Confidential Information, Work Product (as defined below) or the business
of the Company or any Subsidiary which he may then possess or have under his control.
6. Inventions and Patents. Employee acknowledges that all inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports and all similar or
related information (whether or not patentable) which relate to the Company’s or any of its
Subsidiaries’ actual or anticipated business, research and development or existing or future
products or services and which are conceived, developed or made by Employee while employed by the
Company and its Subsidiaries (“Work Product”) belong to the Company or such Subsidiary. Employee
shall promptly disclose such Work Product to the Board and perform all actions reasonably requested
by the Board (whether during or after Employee’s employment with the Company) to establish and
confirm such ownership (including, without limitation, assignments, consents, powers of attorney
and other instruments).
7. Non-Compete. In further consideration of the compensation to be paid to Employee
hereunder, Employee acknowledges that in the course of his employment with the Company he shall
become familiar, and during his employment with the Company he has become familiar, with the
Company’s and its Subsidiaries’ trade secrets and with other Confidential Information concerning
the Company and its Subsidiaries and that his services have been and shall be of special, unique
and extraordinary value to the Company and its Subsidiaries. Therefore, Employee agrees that,
during the one (1) year period following Employee’s termination of employment (the “Non-Compete
Period”), he shall not directly or indirectly own any interest in, manage, control, participate in,
consult with, render services for, or in any manner engage in any business which is involved (or
has definite plans to get involved) in business activities that engage in the business of contract
research organization, recruiting, staffing and placement of personnel in the areas of clinical
research, medical writing, biostatistics and programming. Nothing herein shall prohibit Employee
from being a passive owner of not more than 3% of the outstanding stock of any class of a
corporation which is publicly traded, so long as Employee has no active participation in the
business of such corporation.
8. Non-Solicitation. During the one (1) year period immediately following the
termination of Employee’s employment (the “Non-Solicitation Period”), Employee shall not directly
or indirectly through another entity (i) induce or attempt to induce any employee of the Company or
any Subsidiary to leave the employ of the Company or such Subsidiary, or in any way interfere with
the relationship between the Company or any Subsidiary and any employee thereof, (ii) hire any
person, who was an employee of the Company or any Subsidiary at any time during the four (4) years
immediately preceding the Employee’s termination, (iii) induce or attempt to induce any customer,
supplier, licensee, licensor, franchisee or other business relation
of the Company or any Subsidiary to cease doing business with the Company or such Subsidiary,
or in any way interfere with the relationship between any such customer, supplier, licensee or
business, relation and the Company or any Subsidiary (including, without limitation, making any
-3-
negative statements or communications about the Company or its Subsidiaries) or (iv) service
(except in the capacity of an employee) any customer, licensee, agent or franchisee of the Company
or any Subsidiary who was a customer, licensee, agent or franchisee of the Company or any
Subsidiary at any time during the two (2) years immediately preceding the Employee’s termination.
9. Enforcement. If, at the time of enforcement of Sections 5, 6, 7 or 8 of this
Agreement, a court holds that the restrictions stated herein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances shall be substituted for the stated period, scope or area. The
parties hereto agree that money damages would not be an adequate remedy for any breach of this
Agreement because the services provided by Employee pursuant to this Agreement are unique and
because Employee has access to Confidential Information and Work Product. As such, in the event a
breach or threatened breach of this Agreement, the Company or its successors or assigns may, in
addition to other rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or
prevent any violations of, the provisions hereof (without posting a bond or other security). In
addition, in the event of an actual breach or violation by Employee of Sections 7 or 8, the
Non-Compete Period and the Non-Solicitation Period shall be tolled until such breach or violation
has been duly cured. Employee hereby acknowledges and agrees that the restrictions contained in
Sections 7 or 8 are reasonable.
10. Employee’s Representations. Employee hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by Employee do not and
shall not conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Employee is a party or by which’ he is bound, (ii)
Employee is not a party to or bound by any employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity except as disclosed to the Company by
Employee in writing (including a copy of such agreement), and (iii) upon the execution and delivery
of this Agreement by the Company, this Agreement shall be the valid and binding obligation of
Employee, enforceable in accordance with its terms.
11. Definitions.
“Board” shall mean the board of directors of the Company.
“Cause” shall mean (i) the conviction of a felony or the commission of any other act or
omission involving dishonesty or fraud, (ii) failure to perform duties as directed by the Board
(which failure is not cured within 30 days following written notice from the Board); provided such
duties are reasonable and consistent with the duties generally performed by an executive of the
same, title, stature, duties and position as Employee or are otherwise consistent with this
Agreement, (iii) gross negligence or willful misconduct with respect to the Company or any of its
Subsidiaries, or (iv) any material breach (which failure is not cured within 30 days following
written notice from the Board) of this Agreement.
“Disability” shall mean any physical or mental incapacitation which results in Employee’s
inability to perform his duties and responsibilities for the Company for a total of one
-4-
hundred
twenty (120) days during any twelve (12)-month period, as determined by an Independent Medical
Doctor and (ii) shall be deemed to have occurred on the later of either the 120th day of such
inability to perform or the date on which the benefits under the Company’s long term disability
insurance become payable to the Employee. For the purposes of this definition, an “Independent
Medical Doctor” shall be a medical doctor chosen in the following manner: the Employee and the
Board shall each choose a medical doctor and such medical doctors, together, shall choose a third
medical doctor who shall be the Independent Medical Doctor.
“Subsidiaries” shall mean any entity of which the securities having a majority of the voting
power in electing directors are, at the time of determination, owned by the Company, directly or
through one or more Subsidiaries.
12. Survival. Sections 4, 5, 6, 7 and 8 and Sections 11 through 21 shall survive and
continue in full force in accordance with their terms notwithstanding any termination of the
Employee’s employment by the Company.
13. Notices. Any notice provided for in this Agreement shall be in writing and shall
be either personally delivered, or mailed by overnight courier (by a reputable courier service) or
first class mail, return receipt requested, to the recipient at the address below indicated:
Notices to Employee:
Xxxxxx X. Xxxx
[ ]
[ ]
[ ]
[ ]
Notices to the Company:
000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Chairman and Chief Executive Officer
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Chairman and Chief Executive Officer
or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement shall be
deemed to have been given when so delivered, sent or mailed.
14. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement 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 shall
not affect any other provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
-5-
15. Complete Agreement. This Agreement, those documents expressly referred to herein
and other documents of even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or representations by or
among the parties, written or oral, which may have related to the subject matter hereof in any way.
16. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
17. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.
18. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Employee, the Company and their respective heirs, successors and
assigns, except that Employee may not assign his rights or delegate his obligations hereunder
without the prior written consent of the Company.
19. Choice of Law; Consent to Jurisdiction. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the laws of the
Commonwealth of Pennsylvania, without giving effect to any choice of law or conflict of law rules
or provisions (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the Commonwealth of Pennsylvania.
In the case of any dispute under or in connection with this Agreement, the Employee may only bring
suit against the Company in the Courts of the State of Pennsylvania in and for the County of
Xxxxxxxxxx or in the Federal District Court for such geographic location. The Employee hereby
consents to the jurisdiction and venue of the courts of the State of Pennsylvania in and for the
County of Xxxxxxxxxx or the Federal District Court for such geographic location, provided that such
Federal Court has subject matter jurisdiction over such dispute, and the Employee hereby waives any
claim he may have at any time as to forum non conveniens with respect to such venue. The Company
shall have the right to institute any legal action arising out of or relating to this Agreement in
any appropriate court and in any jurisdiction. Any judgment entered against either of the parties
in any proceeding hereunder may be entered and enforced by any court of competent jurisdiction.
20. Effective Date. This Agreement will become effective on the date (the “Effective
Date”) on which the merger of Longxia Acquisition, Inc., a Pennsylvania corporation (“Merger Sub”),
with and into ReSearch Pharmaceutical Services, Inc., a Pennsylvania corporation (“Target”),
pursuant to the Agreement and Plan of Merger by and the Company, Merger Sub, Target, the RPS
Securityholders that execute a signature page thereto or a Letter of Transmittal, and Xxxxxx X.
Xxxxxxx as the RPS Securityholders Committee, (the “Merger”) is
consummated. If for any reason the Merger does not occur then this Agreement will not be
effective and will be of no force or effect.
-6-
21. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company and Employee, and no course of conduct or
failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding
effect or enforceability of this Agreement.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Service Agreement as of the date
first written above.
| CROSS SHORE ACQUISITION CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| /s/ Xxxxxx X. Xxxx | ||||
| Xxxxxx X. Xxxx | ||||
-7-
