1
EXHIBIT 10.9
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT is made and effective as of the date
indicated below by and between DATATRAK INTERNATIONAL, INC., an Ohio corporation
with its principal place of business at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxx 00000 ("Company") and XXXXX X. BLACK ("Employee").
WITNESSETH:
-----------
WHEREAS, on or about July 15, 1994, Employee entered into an
Employment Agreement with Collaborative Clinical Research, Inc., pursuant to
which Employee was retained as Vice President Finance, Chief Financial Officer,
Treasurer and Assistant Secretary of Collaborative Clinical Research, Inc.; and
WHEREAS, following the sale of Collaborative Clinical
Research, Inc.'s clinical research division, Collaborative Clinical Research,
Inc. changed its name to DATATRAK International, Inc.; and
WHEREAS, the Company desires to retain Employee as its Vice
President Finance, Chief Financial Officer, Treasurer and Assistant Secretary,
and Employee desires to be so retained; 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 Finance, Chief Financial Officer, Treasurer and Assistant
Secretary. Employee shall perform his duties under the direction of the
Company's President and Chief Executive Officer or designee of the Company.
Employee agrees to accept election to and serve as an officer of the Company.
During the Term of this Agreement, as those terms are defined herein, 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. 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 Twenty Five Thousand ($125,000) 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, provided,
however, that the Company shall not reduce the Employee's salary to be paid in
any
1
2
succeeding year to an amount less than the Employee's base salary as established
herein or as increased over time without Employee's written agreement. 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. BONUS PLANS. The Company may pay Employee additional
compensation in the form of a discretionary bonus and/or pursuant to an
established bonus plan(s) that the Company may have in effect from time to time
for similarly situated employees. The Company reserves the right to modify or
cancel any bonus plan(s) that it may have in effect at any given time. The
Company will be obligated to pay all amounts earned and due to Employee prior to
the modification or cancellation of any established bonus plans. The bonus may
be paid in cash, in equity securities of the Company, in stock options, or in
any combination thereof at the Company's discretion.
4. STOCK OPTION PLAN. Employee shall be eligible to
participate in any stock option plans that the Company may make available from
time to time for similarly situated employees. The granting of stock options
will be pursuant to the terms and conditions of a separate Stock Option
Agreement.
5. BENEFITS. During the Term of this Agreement, 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.
6. VACATIONS. During the Term of this Agreement, Employee
shall be entitled to annual paid vacation time equal to twenty (20) 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.
7. RELOCATION EXPENSES. During the Term of this Agreement, if
Employee is required by the Company to relocate his permanent residence to a
location outside of Northeastern Ohio, then the Company will reimburse Employee
for all reasonable relocation expenses, including the expense of moving
Employee's possessions and reasonable expenses incurred in travel to the new
location for the purpose of locating housing. The Company will further reimburse
Employee for all reasonable temporary housing expenses at the new location for
the first 90 days after the date requested by the Company for the Employee's
relocation.
7.1 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 permanent
residence if Employees is required by the Company to relocate his permanent
residence to a location outside of Northeastern Ohio. The Employee will provide
the Company with appropriate documentation to
2
3
support the Broker's Fee incurred by Employee.
8. TERM AND TERMINATION OF AGREEMENT. This Agreement shall
commence on the date signed by both parties as indicated below and shall
continue for a period of one (1) year (the "Initial Term"), unless sooner
terminated as provided in paragraphs 8.1, 8.2, 8.3, 8.5, 8.6, 8.7 or 8.8 of this
Agreement. This Agreement will renew automatically for successive one (1) year
periods (the "Renewal Period," and collectively with the Initial Term, the
"Term") unless previously terminated or either party gives notice of non-renewal
at least 90 days prior to the commencement of such Renewal Period.
8.1 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, and any stock options that
have vested under the Company's Stock Option Plan(s) 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. If
Employee's employment is terminated pursuant to this section during the Term of
this Agreement, employee shall be entitled to his salary through the date of
such termination, payment for any pro-rata bonus earned and due at the time of
termination pursuant to any (if any) bonus plan(s) the Company may have in
effect at the time of termination, and to any other employee benefits maintained
or established by the Company for its similarly situated employees.
8.2 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 section during the Term of
this Agreement, employee shall be entitled to his salary through the date of
such termination, payment for any pro-rata bonus earned and due at the time of
termination pursuant to any (if any) bonus plans the Company may have in effect
at the time of termination, and to any other employee benefits maintained or
established by the Company for its similarly situated employees.
8.3 TERMINATION BY COMPANY FOR CAUSE. During the Term
of this Agreement, 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;
3
4
(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 unauthorized use or possession of 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;
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, and except for the covenants of Employee set forth in
Section 9 of this Agreement.
8.4 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.
8.5 TERMINATION BY EMPLOYEE WITHOUT GOOD
REASON/NON-RENEWAL BY EMPLOYEE. During the Term of this Agreement, Employee may
terminate his employment and this Agreement at any time for any or no reason
upon at least 30 days written notice by the Employee directly to the Company's
President. Prior to and/or during any Renewal Period, Employee may also
terminate this Agreement by giving a notice of non-renewal at least 120 days
prior to the commencement of the next Renewal Period. Employee acknowledges and
agrees that a voluntary resignation, termination or retirement by Employee
during the Term of this Agreement as described in this Section 8.5, and/or a
notice of non-renewal by Employee prior to and/or during any Renewal Period as
described in this Section 8.5, 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.
8.6 TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee
may terminate his employment at any time during the Term of this Agreement for
"Good Reason." "Good Reason" shall mean (a) any material reduction by the
Company of Employee's duties, responsibilities, base salary, title or position,
or (b) any involuntary removal of 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 Without Good Reason).
Prior to any Termination by Employee for Good Reason pursuant to this Section
8.6, Employee shall
4
5
provide the President with sixty (60) calendar days' written notice of the acts
and/or omissions of the Company which Employee asserts constitute "Good Reason,"
and if, at the conclusion of that sixty (60) calendar day period, the Company
has not undertaken reasonable efforts to cure or correct the alleged acts and/or
omissions, then Employee may terminate his employment pursuant to this Section
8.6. In the event 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 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) Dollars,
8.7 TERMINATION OTHER THAN FOR CAUSE, DEATH, OR
DISABILITY; TERMINATION BY NON-RENEWAL. During the Term of this Agreement, the
Company may terminate Employee for other than Cause, Death, or Disability at any
time during the Term of this Agreement, upon not less than thirty (30) days
notice. Prior to and/or during any Renewal Period, the Company may also
terminate this Agreement by giving a notice of non-renewal at least 90 days
prior to the commencement of the next Renewal Period. In the event the Company
exercises its right to terminate the Employee other than for Cause, Death, or
Disability at any time during this Agreement, during the Term of this Agreement
as described in this Section 8.7, and/or gives a notice of non-renewal prior to
and/or during any Renewal Period as described in this Section 8.7, 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) Dollars,
8.8 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 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)
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 complete
liquidation or dissolution of the Company.
8.9 BINDING ARBITRATION. In the event, upon
termination of Employee's employment, a disagreement exists between Employee and
the Company as to which section of this Section 8 governs such termination
(i.e., if the party terminating Employee's employment (the "Terminating Party")
claims that "Cause", "Good Reason" or
5
6
"Disability" 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 8.9. 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 thirty (30) 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 8 applies
to the termination. In the event the parties cannot agree on an arbitrator
within thirty (30) 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 8 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 8,
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 National Rules for the Resolution of Employment Disputes 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.
9.0 RESTRICTIVE COVENANTS OF EMPLOYEE. Employee acknowledges
that the services rendered to the Company are special, unique, and of
extraordinary character; that the market for the Company's services and products
is worldwide; and that through the Internet, World Wide Web, and/or other media
of electronic commerce, the Company regularly transacts business on a worldwide
basis. In light of those factors, Employee acknowledges that the following
covenants are reasonable and necessary for the protection of the Company's
reasonable business interests.
9.1 NON-COMPETITION. During the period of Employee's
employment by the Company and, in the case of the termination of Employee's
employment under Sections 8.2, 8.6, 8.7, or 8.8 hereof, for a period of one (1)
year thereafter, or (ii) in the case of the termination of Employee's employment
under any provision of Section 8 hereof other than Sections 8.2, 8.6, 8.7, or
8.8 for a period of eighteen (18) months (the "Non-competition Period"),
Employee shall not, directly or indirectly, whether as an individual on his own
account, or as a partner, joint venturer, director, officer, employee,
consultant, creditor and/or agent or otherwise, in any place in which the
Company now or hereafter conducts business:
(a) Enter into or engage in any business which provides
software and related web hosting, educational and training services, and/or
other Applications Services Provider ("ASP") services, to customers in the
pharmaceutical, biotech, and/or medical device industries to assist in the
electronic capture of clinical trial patient data from clinical trial sites;
(b) Solicit customers, business, patronage or orders from, or
perform other services for, any person, firm, association, corporation or other
entity, engaged in any business,
6
7
including without limitation, an Applications Services Provider, which directly
or indirectly competes with the business of the Company or parent or subsidiary
of, or entity controlling, controlled by or under common control with the
Company ("Company Affiliate"); or
(c) Promote or assist, financially or otherwise, any person,
firm, association, corporation or other entity, engaged in any business,
including without limitation, an Applications Services Provider, which competes
with the current or future business of the Company or any Company Affiliate;
provided, however, that the foregoing covenant shall not be deemed to have been
violated solely by (i) the ownership of equity securities of an 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 (ii) the ownership for
investment purposes of less than five percent (5%) of the equity securities of
any entity which has equity securities listed on a national securities exchange
or publicly traded in the over-the-counter market.
9.2 CONFIDENTIALITY AND WORK PRODUCT. Employee
acknowledges that during his employment with the Company he 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 or otherwise, including, without limitation, trade secrets,
design information, software programs, 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 employment he may be producing designs,
analyses, recommendations, reports, complications, software, 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:
(a) he will promptly disclose in writing to the
Company all Work Product;
(b) 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;
(c) Employee shall not divulge, disclose or
communicate to any third party in any manner, directly or indirectly,
Proprietary Information or Work Product;
(d) Employee will not use for his own benefit or
purposes or for the
7
8
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; and
(e) upon the termination of his 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.
9.3 NO INTERFERENCE. During the Non-competition
Period, Employee agrees that he shall not:
(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;
(c) make remarks or take any other action which disparages or
diminishes the reputation of the Company or any Company Affiliate; and
(d) 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 (d) shall not apply with
respect to such person terminated by action of the Company or any Company
Affiliate.
9.4 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; that through the Internet, World Wide Web, and/or other
media of electronic commerce, the Company regularly transacts business
worldwide; and that if Employee hereafter fails to comply with the restrictions
and obligations imposed upon him 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.
10. 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.
8
9
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
9
10
Date: February 5, 2001 /s/ Xxxxx X. Black
------------------------------- ---------------------------
XXXXX X. BLACK (EMPLOYEE)
DATATRAK INTERNATIONAL, INC.
Date February 5, 2001 By /s/ Xxxxxxx X. Xxxxx
-------------------------------- ----------------------
TITLE: CHIEF EXECUTIVE OFFICER
AND PRESIDENT
10
