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EXHIBIT 10.15
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. XXXXXX (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 Chief
Operating Officer. Employee shall generally be responsible for overall
management of Company's business operations including business operations of the
Company's subsidiaries and divisions, but excluding DataTRAK, which shall
operate as an independent business unit. Employee shall be responsible for the
overall profit and loss performance of Company including generation of sales
revenues, oversight and maintenance of the Affiliated Network and oversight of
internal operations. Principle departments which shall report to Employee
include sales and marketing, affiliate site relations, and clinical operations.
Employee shall perform his duties under the direction of the Chief Executive
Officer of Collaborative Clinical Research, Inc. 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 devote his full business time and efforts to
the affairs of the Company. The Employee may, however, serve as an outside
director of any other corporation provided Employee obtains the written consent
of the Company, which shall not be unreasonably withheld.
2. SALARY. The Company will pay Employee a base salary of One Hundred
Seventy Thousand Dollars ($170,000.00) 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 Collaborative Clinical
Research, Inc., provided, however, that the Company shall not reduce the
Employee's salary to be paid in any succeeding year to an amount less than the
Employee's base salary as established herein. 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.
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3. STOCK OPTION PLAN. Within 30 days after Employee begins employment,
Employee shall receive a Stock Option Agreement for the granting of 50,000 stock
options for the purchase of Company Common Stock ("the Common Stock") at a per
share exercise price equal to the closing price of the Common Stock on the date
of the Stock Option Grant. Pursuant to the terms of the separate Stock Option
Agreement, Employee will vest 12,500 stock options on each anniversary date of
the Stock Option Agreement. The employee will be entitled to receive additional
stock option grants of 50,000 each on January 1, 1999, 2000 and 2001. These
additional stock option grants will be based upon the Employee achieving
established targets as outlined in Exhibit A. The strike price for these
additional stock option grants will be the closing price as quoted on the NASDAQ
on the date of grant (1/1/99, 1/1/00, 1/1/01).
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 Florida to the Cleveland, Ohio area, and reasonable expenses
incurred in travel to the Cleveland, Ohio area for the purpose of locating
housing. The Company will reimburse Employee for all reasonable Cleveland
housing expenses for first 90 days after the effective date of this Employment
Agreement.
6.1 REAL ESTATE BROKER'S COMMISSIONS. The Company will reimburse
Employee for reasonable licensed real estate broker's commission (Broker's Fee)
incurred by Employee in the Sale of the Employee's current residence located in
Oldsmar, Florida. The Company will pay $20,000 upon the sale of Employee's
current residence. The balance of the Broker's Fees will be paid only after
Employee has completed 12 months of employment with the Company. If the Employee
is not employed by the Company at the time each portion of the Broker's Fee
become payable, the Company will have no obligation to reimburse the Employee
for any unreimbursed Broker's Fees. The Employee will provide the Company with
reasonable documentation to support the Broker's Fee incurred by Employee.
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 four (4)
years, unless sooner terminated as provided in paragraphs 7.1, 7.2, 7.3, 7.5,
7.6, 7.7 or 7.8 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 or stock options that have vested
under the Company's Stock Option Plan
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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.
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 conviction of a felony involving moral
turpitude or a felony in connection with his employment;
(2) Employee's theft, fraud, embezzlement, material willful
destruction of property or material disruption of the operations of the Company;
(3) Employee's use or possession of illegal drugs and/or
alcohol on Company premises or reporting to work under the influence of same; or
(4) 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 with 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
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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 or stock options which have vested on
Employee's behalf prior to such termination.
7.6 TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee may
terminate his employment and this Agreement at any time, in the event of (i) any
material reduction by the Company of such Employee's duties, responsibilities or
title and, (ii), any involuntary removal of such Employee from any position
previously held (except in connection with a promotion or a termination for
Cause, Death or Disability, or the voluntary termination by the Employee other
than for Good Reason). In the even of such termination by Employee for Good
Reason, Employee shall be entitled to receive (i) his salary through the date of
such termination and for a period of six (6) months 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) Dollars, and (iii) continuation for
six (6) months of medical, dental and life insurance benefits in accordance with
Employee's then existing plan, including deduction from Employee's salary of the
then existing bi-weekly employee contribution for such plan benefits and (iv)
the Company will make a recommendation to the Company's Compensation Committee
to consider vesting the Employee in all granted non-vested stock options. The
Compensation Committee, in its sole discretion, will make the determination to
vest or not to vest Employee in granted non-vested stock options.
7.7 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, and (iii) continuation for one (1) year of medical, dental and life
insurance benefits in accordance with Employee's then existing plan, including
deduction from Employee's salary of the then existing bi-weekly employee
contribution for such plan benefits and (iv) the Company will make a
recommendation to the Company's Compensation Committee to consider vesting the
Employee in all granted non-vested stock options. The Compensation Committee, in
its sole discretion, will make the determination to vest or not to vest Employee
in granted non-vested stock options.
7.8 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 (a) not continued by the purchaser or successor or (b) there is a
material change in the Employee's role, duties, responsibility or title
following a Change of Control and Employee voluntarily terminates his employment
and this Agreement therefor, Employee shall 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, (iii) continuation for one (1) year of medical, dental and
life insurance benefits in accordance with Employee's then existing plan,
including deductions from Employee's salary of the then existing bi-weekly
employee contribution for such plan benefits. 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
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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 Section 7.6 hereof, for a period of six (6) months thereafter or, (ii) in
the case of the termination of Employee's employment under section 7.7 hereof,
for a period of twelve (12) months thereafter, or (iii) 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;
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
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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
(vi) Following termination of the Non-competition Period, the
obligations of Employee in this Section 8.2 shall not apply to Proprietary
Information or Work Product of the Company 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 Collaborative Clinical Research, Inc. for the period after such effective
date.
8.3 NO INTERFERENCE. During the Non-competition 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
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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.
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, Exhibit A,
and the Stock Option Agreement contain the entire agreement between the
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the dates written below.
Date: DECEMBER 8, 1997 /S/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
COLLABORATIVE CLINICAL RESEARCH, INC.
Date: DECEMBER 8, 1997 By: /S/ XXXXXXX X. XXXXX
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Title: PRESIDENT & CEO
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