Exhibit 10.7
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") entered into as of this 18th day of
March, 2002, between Anapharm Inc., a Quebec company (the "Company") and Xxxx
XxXxx (the "Employee").
WHEREAS, in its business, the Company has acquired and developed certain
trade secrets, including but not limited to proprietary processes, sales methods
and techniques, and other like confidential business and technical information
including but not limited to technical information, design systems, methods of
recruiting subjects, pricing methods, pricing rates or discounts, process,
procedure, formula, design of computer software or improvement of any portion or
phase thereof, whether patented or not, that is of any value whatsoever to the
Company, as well as certain unpatented information relating to the Company's
Services (as herein defined), information concerning proposed new Services,
market feasibility studies, proposed or existing marketing techniques or plans
(whether developed or produced by the Company or by any other entity for the
Company), other Confidential Information (as herein defined) and information
about the Company's employees, officers, and directors, which necessarily will
be communicated to the Employee by reason of Employee's employment by the
Company; and
WHEREAS, the Company has strong and legitimate business interests in
preserving and protecting its investment in the Employee, its trade secrets and
Confidential Information, and its substantial relationships with suppliers, and
Customers (as herein defined) actual and prospective; and
WHEREAS, the Company desires to preserve and protect its legitimate business
interests further by restricting competitive activities of the Employee during
the term of employment and following (for a reasonable time) termination of
employment for any reason; and
WHEREAS, the Company desires to employ the Employee and to ensure the
continued availability to the Company of the Employee's services, and the
Employee is willing to accept such employment and render such services, all upon
and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth in this Agreement, and intending to be legally bound, the Company and
the Employee agree as follows:
1. Representations and Warranties. The Employee hereby represents and
-------------------------------
warrants to the Company that Employee (i) is not subject to any written
nonsolicitation or noncompetition agreement affecting Employee's employment with
the Company (other than any prior agreement with the Company), (ii) is not
subject to any written confidentiality or nonuse/nondisclosure agreement
affecting Employee's employment with the Company (other than any prior agreement
with the Company), and (iii) has brought to the Company no trade secrets,
confidential business information, documents, or other personal property of a
prior employer or any other person.
2. Term of Employment. The Company hereby employs the Employee, and the
------------------
Employee hereby accepts employment with the Company for an initial five year
period commencing on the date of this Agreement (the "Initial Term"), and this
Agreement will automatically renew thereafter, from year to year, for additional
one (1) year periods, on the same terms and conditions as those set forth
herein, unless a party provides notice of termination to the other party no
later than thirty (30) days prior to the expiration of such Initial Term or one
(1) year renewal period, as the case may be, the whole subject to termination as
set forth herein (collectively, the "Term").
Board Membership. The Employee hereby agrees to serve as a member of the
----------------
Company's Board of Directors for the term of this Agreement or until otherwise
determined by Parent.
3. Duties.
------
(a) General Duties. The Employee shall serve as President of the
--------------
Company, with duties and responsibilities that are customary for such position.
The Employee shall report directly to the Company's Board of Directors or as
otherwise directed by the Company's board of directors. The Employee shall use
Employee's best efforts to perform Employee's duties and discharge Employee's
responsibilities pursuant to this Agreement competently, carefully and
faithfully.
(b) Devotion of Time. The Employee shall devote all of Employee's
----------------
time, attention and energies during normal business hours to the business of the
Company. During the Term, the Employee shall not enter the employ of or serve as
a consultant to, or in any way perform any services with or without compensation
to, any other persons, business or organization without the prior written
consent of the board of directors of the Company, save and except, as director
of TGN Biotech Inc., of BDI Inc. and of the Universite Laval".
(c) Adherence to Inside Information Policies. The Employee
----------------------------------------
acknowledges that the Company's indirect parent, SFBC International, Inc. (the
"Parent") is publicly-held and, as a result, has implemented inside information
policies designed to preclude its employees and those of its subsidiaries from
violating the applicable securities laws by trading on material, non-public
information or passing such information on to others in breach of any duty owed
to the Company, the Parent, or any third party. The Employee shall promptly
execute any agreements generally distributed by the Company or the Parent to its
employees requiring such employees to abide by its inside information policies.
Parent shall provide copy of the inside information policies.
4. Compensation and Expenses.
-------------------------
(a) Salary. For the services of the Employee to be rendered under this
------
Agreement, the Company shall pay the Employee an annual gross salary of $266,000
Canadian Dollars ($266,000) (the "Base Salary") during the Term, payable in
accordance with the Company's normal payroll practices and subject to applicable
deductions at source required by law or the Company's ordinary course payroll
practices. The Base Salary shall be increased as and when the Company meets
targeted financial results, subject to approval of the Board of Directors.
2
(b) Expenses. In addition to any compensation received pursuant to
--------
Section 5(a) the Company shall reimburse funds to the Employee for all
reasonable travel, entertainment and miscellaneous expenses incurred in
connection with the performance of Employee's duties under this Agreement and
provided that the Employee properly provides a written accounting of such
expenses to the Company in accordance with the Company's then current practices.
Such reimbursement shall be made in accordance with policies and procedures of
the Company in effect from time to time relating to reimbursement of Employees.
5. Benefits. All benefits are, subject to Sections 6 and 7, available to
--------
Employee for the full Term of this Agreement.
(a) Vacation. During the first year of employment, the Employee shall
--------
be entitled to 20 days of vacation, and to any additional number of days as
specified by the Company in its sole discretion or based on any applicable
requirements of law, in each instance without loss of compensation or other
benefits to which Employee is entitled under this Agreement, to be taken at such
times as the Employee may select and the affairs of the Company may permit.
(b) Employee Benefit Programs. The Employee is entitled to participate
-------------------------
in any pension, retirement savings plan, insurance or other employee benefit
plan that is maintained by the Company for its executive officer employees,
including programs of life, disability and medical insurance and reimbursement
of membership fees in professional organizations.
(c) Bonus. For the Initial Term of this Agreement, the parties agree
-----
that the Employee shall be entitled to a bonus determined in accordance with
sales targets, profits and bonus rates as agreed to in writing by Employee and
the Company from time to time and in accordance with Parent's policies and
practices with respect to bonus payments to its executives.
(d) Stock Options. The Parent shall grant the Employee 35,000 10-year
-------------
stock options, all of which shall be subject to the terms of the Parent's Second
Amended and Restated 1999 Stock Option Plan. Subject to any applicable
requirements of law, such options will be exercisable at the closing price of
the Parent's common stock on the Nasdaq Stock Market on the last trading day
prior to the execution of this Agreement, and shall vest over a three year term
each June 30 and December 31 in equal increments of 58,334 options commencing on
December 31, 2002, subject to continued employment at each applicable vesting
date. All options shall be subject to execution of the Parent's then standard
stock option agreement. Except in the event of Employee's termination of
employment by the Company without Cause, all unvested options expire at the
Termination Date. In the event of the termination by the Company of Employee's
employment without Cause, the vesting of those unvested options that would have
vested during the Severance Period (herein defined) shall be accelerated and
shall vest as of the Termination Date. In addition, as and when Parent has in
place an executive stock option plan Employee shall have the right, subject to
Board approval, to participate in that plan. All vested options (including those
accelerated as provided above) must be exercised within three months of
Employee's termination of employment (whatever the reason), failing which they
expire.
3
(e): automobile: Company shall provide an automobile (leasing) for
Xxxx XxXxx ($1000 per month), excluding taxes), all licenses, insurances
and maintenance costs to be paid by the Company.
6. Termination.
-----------
(a) Notwithstanding anything contained herein to the contrary, it is
agreed that the Employee's employment hereunder may be terminated with or
without Cause (as defined below) at any time during the Term of the present
Agreement and without any recourse, claim or cause of action by either party
against the other with respect to such termination: (i) by the Company at any
time, by giving to the Employee written notice of termination (the date of such
notice being herein called the "Notice Date"), which notice shall set forth the
date upon which the Employee's employment shall terminate as determined by the
Company in its sole discretion (which may be the Notice Date or any later date
selected by the Company), or (ii) by the Employee at the expiration of thirty
(30) days after the giving of written notice of termination to the Company, or
at the expiration of such shorter notice period as the Company in its sole
discretion may require and notify the Employee following the Company's receipt
of such notice from the Employee.
(b) For the purposes of this Agreement, the term "Cause" shall
include: (i) a willful failure or refusal by the Employee to perform Employee's
customary duties or services for the Company, or its Affiliates (as herein
defined), without lawful justification; (ii) the Employee's conviction for a
criminal act or other offense pursuant to the provisions of the Criminal Code of
Canada or any other criminal or penal statute of any jurisdiction which the
Company reasonably determines may have an adverse effect upon the reputation or
goodwill of the Company, or on the performance of the Employee's duties
hereunder; (iii) a breach by the Employee of, or the Employee's failure or
refusal to perform, in any material respect, any of Employee's obligations under
any employment agreement, employee invention and confidentiality agreement or
such other material written agreement between the Employee and the Company; (iv)
the Employee's violation of any published employment policy or practice of the
Company provided the Employee fails to adhere to such policy/practice within a
reasonable period of time, but no later than thirty (30) days, after receipt of
notice; (v) gross negligence or willful misconduct or fraud by the Employee in
the performance of Employee's duties, (vi) breach by the Employee of any
applicable securities laws; or (vii) any serious reason or just cause under
Quebec law.
(c) If the Employee becomes substantially incapacitated so as to be
prevented from properly and continuously performing in full Employee's duties to
the Company for a substantially continuous period of three (3) months or more in
any consecutive twelve (12) month period, the Company will continue to pay the
Employee's base salary for such three (3) month period. If the Employee is
unable to return to work after such three (3) month period, the Company may, in
its sole discretion, elect to terminate the Employee's employment at any time
during the continuance of such incapacity by giving to the Employee written
notice of termination or severance pay in lieu thereof and, if the Company gives
such notice of termination or severance pay in lieu thereof, the Employee's
employment with the Company shall terminate on the date set forth in such
notice, without recourse by either party against the other with respect to such
termination.
(d) Upon termination of employment under paragraphs (a) or (c) above,
the Employee shall have no right to compensation or reimbursement under Section
4 or to participate in
4
any employee benefits under Section 5, except as provided for by applicable law
or Section 7, for any period subsequent to the Termination Date.
(e) Notwithstanding any termination of employment, the provisions of
Sections 9 and 10 shall remain in full force and effect.
7. Payments in the Event of Termination.
------------------------------------
(a) In this Agreement, the expression "Termination Date" means (i) in
the case of termination by the Company pursuant to Section 7(a)(i) or 7(c)
hereof, the date of termination of the Employee's employment set forth in the
written notice of termination given by the Company pursuant to either of such
sections (as the case may be); and (ii) in the case of termination by the
Employee pursuant to Section 6(a)(ii) hereof, the date which is thirty (30) days
following the date upon which the Employee has given notice of termination or,
if the Company has required a shorter notice period, the last day of such
shorter period.
(b) In the event of termination of employment pursuant to Section 6
hereof, notwithstanding anything in this Agreement contained to the contrary,
all payments and benefits to the Employee under this Agreement shall cease and
terminate except that:
(i) In the event of termination by the Employee pursuant to
Section 7(a)(ii) hereof and in case of termination by the Company
pursuant to Section 7(c) hereof or for Cause, the Employee's base
salary shall be pro rated based on the number of days elapsed between
the last date to which such salary was paid up to (but excluding) the
Termination Date and shall be paid to the Employee up to the
Termination Date;
(ii) In the event of non-renewal of this Agreement by the Company
pursuant to Section 2 hereof after the Initial Term or if Employee's
employment is terminated by the Company without Cause, the Employee
will be entitled to receive an amount equal to Employee's Base Salary
for 12 months (such 12 month period is herein referred to as the
"Severance Period" and the said amount payable is herein referred to
as the "Severance Pay") as full and final settlement of all claims,
including for any employment related benefits and severance and
termination pay or indemnities, against the Company or any of its
Affiliates.
(c) Payment of Severance Pay. The Severance Pay shall be paid in
------------------------
equal instalments over the Severance Period at the times and in accordance with
the Company's customary pay periods and payroll practices as may be established
or modified from time to time and shall be subject to all applicable federal,
provincial and/or local payroll and withholding taxes. Notwithstanding anything
to the contrary herein contained, the Severance Pay shall terminate once
Employee finds "Alternative Employment" or in the event of a breach of any terms
of this Agreement by Employee, including Sections 8 and 9. "Alternative
Employment" means any employment(s) or other relationship(s) (such as consultant
or contractor) with any other Person which in the aggregate provide Employee,
directly or indirectly, with compensation equal to at least 80% of Employee's
then applicable Base Salary.
(d) Termination of Benefits. Except for any right of continuation of
-----------------------
benefits coverage to the extent provided by the terms and conditions of the
benefit programs relating to life,
5
disability and medical insurance, by this Agreement or by applicable law,
benefits shall terminate pursuant to the terms of the applicable benefit plans
as of the Termination Date of the Employee's employment.
(e) Release. Company's obligation to provide any of the amounts and
-------
benefits hereunder shall be subject to, and conditioned upon, the Employee's
execution of a full release of claims satisfactory to the Company releasing the
Company, its Affiliates and their respective employees and agents from any
claims arising from or related to the Employee's employment or severance from
employment with the Company, including any claims arising from this Agreement
(f) Cessation of Severance Pay and Benefits. If the Employee breaches
---------------------------------------
Employee's obligations under this Agreement, the Company may immediately cease
payment of all severance and benefits described in this Agreement. The cessation
of these payments shall be in addition to, and not as an alternative to, any
other remedies at law or in equity available to the Company, including the right
to seek specific performance or an injunction.
8. Non-Competition Agreement.
-------------------------
(a) Competition with the Company or the Parent. During the Term and
------------------------------------------
for a period of 12 months commencing on the Termination Date (whatever the
reason of the termination of employment) (the "Restricted Period"), the
Employee, directly or indirectly or, in association with or as a stockholder,
director, officer, consultant, employee, partner, joint venturer, member or
otherwise of or through any person, firm, corporation, partnership, association
or other entity (any of the foregoing defined as an "Affiliated Entity") shall
not become employed by, lend money to, advise, become a shareholder of or
otherwise become associated with any entity which competes with the Company or
the Parent within the United States or the Province of Quebec. Provided,
--------
however, the foregoing provisions shall not prevent the Employee from accepting
-------
employment with an enterprise engaged in two or more lines of business, one of
which is the same or similar to the Company's business (the "Prohibited
Business") if the Employee's employment is totally unrelated to the Prohibited
Business; provided, further, the foregoing shall not prohibit Employee from
-------- -------
owning up to 5% of the securities of any publicly-traded enterprise provided the
Employee is not an employee, director, officer, consultant to such enterprise or
otherwise reimbursed for services rendered to such enterprise. In addition, the
Employee may not, directly or indirectly including through any Affiliated
Entity, obtain employment with or perform services for any Customer (as herein
defined) of the Company or any affiliate of a Customer during the period
commencing on the Termination Date and continuing for 12 months thereafter,
except by prior written approval of the Company. This section 9(a) shall not
apply where the Employee is terminated without Cause, unless the Company is
satisfying its obligation to pay Severance Pay under Section 7.
(b) Solicitation of Customers. During the Restricted Period, the
-------------------------
Employee, directly or indirectly including through any Affiliated Entity, shall
not seek Prohibited Business from any Customer (as defined below) on behalf of
any enterprise or business other than the Company or any of its Affiliates,
refer Prohibited Business from any Customer to any enterprise or business other
than the Company or any of its Affiliates or receive commissions based on sales
or otherwise relating to the Prohibited Business from any Customer, or any
enterprise or business other than the Company or any of its Affiliates. For
purposes of this Agreement, the term "Customer" means any person, firm,
corporation, partnership, association or other entity to which the Company or,
to the knowledge of the
6
Employee, any of its Affiliates sold or provided goods or services during the
24-month period prior to the time at which any determination is required to be
made as to whether any such person, firm, corporation, partnership, association
or other entity is a Customer, or who or which has been approached by or who or
which has approached an employee or agent of the Company or, to the knowledge of
the Employee, any of its Affiliates for the purpose of doing business with the
Company or any of its Affiliates, as the case may be.
(c) Solicitation of Employees. During the Restricted Period, the
-------------------------
Employee, directly or indirectly including through any Affiliated Entity shall
not solicit, hire or contact any employee or full-time consultant of the Company
or any of its Affiliates for the purpose of hiring them or causing them to
terminate their employment relationship with the Company or any of its
Affiliates. This undertaking shall apply equally to any individual that was an
employee or full-time consultant of the Company or any of its Affiliates at the
time of the termination of Employee's employment with the Company.
(d) No Payment. The Employee acknowledges and agrees that no
----------
separate or additional payment will be required to be made to Employee in
consideration of Employee's undertakings in this Section.
(e) No Effect on SPA. Employee further agrees that nothing herein
----------------
shall limit, lessen or otherwise affect Employee's obligations under Section 13
of the Share Purchase Agreement ("SPA") entered into between the Vendors and
SFBC Canada, Inc. (as such term is defined in the SPA) (in consideration for the
purchase of the shares therein described), and that you are bound concurrently
to this Section 9 (in consideration of employment hereunder) and the said
Section 13 of the SPA.
(f) For greater certainty, references to the "Company" in this
Section 8 shall include the Company's Affiliates.
9. Non-Disclosure of Confidential Information.
------------------------------------------
(a) Confidential Information. "Confidential Information" includes,
but is not limited to, trade secrets, processes, policies, procedures,
techniques including recruiting techniques, designs, drawings, know-how, show-
how, technical information, specifications, computer software and source code,
information and data relating to the development, research, testing, costs,
marketing and uses of the Services (as defined herein), the Company's or its
Affiliates' budgets and strategic plans, and the identity and special needs of
Customers, databases, data, all technology relating to the Company's or its
Affiliates' businesses, systems, methods of operation, client or Customer lists,
Customer information, solicitation leads, marketing and advertising materials,
methods and manuals and forms, all of which pertain to the activities or
operations of the Company, names, home addresses and all telephone numbers and
e-mail addresses of the Company's or its Affiliates' employees, former
employees, clients and former clients. In addition, Confidential Information
also includes the identity of Customers and the identity of and telephone
numbers, e-mail addresses and other addresses of employees or agents of
Customers who are the persons with whom the Company's employees and agents
communicate in the ordinary course of business. Confidential Information also
includes, without limitation, Confidential Information received from the
Company's Affiliates. For purposes of this Agreement, the following will not
constitute Confidential Information (i) information which is available to the
public through no act of the Employee, (ii) information set forth in the written
records
7
of the Employee prior to disclosure to the Employee by or on behalf of the
Company which information is given to the Company in writing as of or prior to
the date of this Agreement, and (iii) information which is lawfully obtained by
the Employee in writing from a third party (excluding any Affiliates) who did
not acquire such confidential information or trade secret, directly or
indirectly, from the Employee or the Company or the Company's Affiliates. As
used herein, the term "Services" shall include all clinical or pre-clinical
research, testing, protocol design, data management, medical writing or other
Services relating to proposed or actual formulations, foods, drugs and medical
devices engaged in by the Company or any Affiliate during the Term of the
Employee's employment.
(b) Legitimate Business Interests. The Employee recognizes that the
-----------------------------
Company has legitimate business interests to protect and as a consequence, the
Employee agrees to the restrictions contained in this Agreement because they
further the Company's legitimate business interests. These legitimate business
interests include, but are not limited to (i) trade secrets; (ii) valuable
confidential business or professional information that otherwise does not
qualify as trade secrets including all Confidential Information; (iii)
substantial relationships with specific prospective or existing Customers or
clients; (iv) Customer or client goodwill associated with the Company's
business; and (v) specialized training relating to the Company's technology,
methods and procedures.
(c) Confidentiality. For a period of five years following
---------------
termination of employment (for whatever reason), or as otherwise required by
client privilege, the Confidential Information shall be held by the Employee in
the strictest confidence and shall not, without the prior written consent of the
Company, be disclosed for whatever reason or purpose to any person or entity
other than in connection with the Employee's employment by the Company. The
Employee further acknowledges that such Confidential Information as is acquired
and used by the Company or its Affiliates is a special, valuable and unique
asset. The Employee shall exercise all due and diligent precautions to protect
the integrity and confidentiality of the Confidential Information and to keep it
confidential whether it is in written form, on electronic media or oral. The
Employee shall not copy any Confidential Information except to the extent
necessary to Employee's employment nor remove any Confidential Information or
copies thereof (in whatever form) from the Company's premises except to the
extent necessary to Employee's employment and then only with the authorization
of an officer of the Company. All records, files, materials and other
Confidential Information obtained by the Employee in the course of Employee's
employment with the Company are confidential and proprietary and shall remain
the exclusive property of the Company. The Employee shall not, except in
connection with and as required by Employee's performance of Employee's duties
under this Agreement, for any reason use for Employee's own benefit or the
benefit of any other person or entity any Confidential Information.
(d) Employee agrees that Employee shall not acquire any right, title
or interest in or to the Confidential Information.
(e) For greater certainty, references to the "Company" in this
Section 10 shall include the Company's Affiliates.
10. Equitable Relief.
----------------
(a) The Company and the Employee recognize that the services to be
rendered under this Agreement by the Employee are special, unique and of
extraordinary character, and that in the event of the breach by the Employee of
the terms and conditions of this Agreement or if the
8
Employee, shall cease to be an employee of the Company for any reason and take
any action in violation of Section 9 and/or Section 10, the Company shall be
entitled to institute and prosecute proceedings in any court of competent
jurisdiction referred to in Section 11(b) below, to enjoin the Employee from
breaching the provisions of Section 9 or Section 10. In such action, the Company
shall not be required to plead or prove irreparable harm or lack of an adequate
remedy at law or post a bond or any security.
(b) The Employee irrevocably and unconditionally submits to the
exclusive jurisdiction of the courts of the Province of Quebec and agrees to
take any and all future action necessary to submit to the jurisdiction of such
courts. The Company irrevocably and unconditionally submits to the jurisdiction
of those same courts. The Employee and the Company irrevocably waive any
objection that they now have or hereafter may have to the laying of venue of any
suit, action or proceeding brought in any such court and further irrevocably
waive any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Final judgment against the
Employee or the Company in any such suit shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment, a certified or true copy of
which shall be conclusive evidence of the fact and the amount of any liability
of the Employee or the Company therein described, or by appropriate proceedings
under any applicable treaty or otherwise.
11. Conflicts of Interest. While employed by the Company, the Employee
---------------------
shall not, directly or indirectly, unless approved in writing by the President:
(a) participate as an individual in any way in the benefits of
transactions with any of the Company's suppliers or Customers, including,
without limitation, having a financial interest in the Company's suppliers or
Customers, or making loans to, or receiving loans, from, the Company's suppliers
or Customers;
(b) realize a personal gain or advantage from a transaction in which
the Company has an interest or use information obtained in connection with the
Employee's employment with the Company for the Employee's personal advantage or
gain; or
(c) accept any offer to serve as an officer, director, partner,
consultant, manager with, or to be employed in a technical capacity by, a person
or entity which does business with the Company.
(d) As used in Section 12(a), (b) or (c), the Company also includes
its Affiliates.
12. Inventions, Ideas, Processes, and Designs. All inventions, ideas,
-----------------------------------------
processes, programs, software, and designs (including all improvements) (i)
conceived or made by the Employee during the course of Employee's employment
with the Company (whether or not actually conceived during regular business
hours) and for a period of six months subsequent to the termination or
expiration of such employment with the Company and (ii) related to the business
of the Company, shall be disclosed in writing promptly to the Company, are
hereby assigned by the Employee to the Company and shall be the sole and
exclusive property of the Company. An invention, idea, process, program,
software, or design (including an improvement) shall be deemed related to the
business of the Company if (a) it was made with the Company's equipment,
supplies, facilities, or Confidential Information, (b) results from work
performed by the Employee for the Company, or (c) pertains to the current
business or
9
demonstrably anticipated research or development work of the Company. The
Employee shall cooperate with the Company and its attorneys in the preparation
of patent and copyright applications for such developments and, upon request,
shall promptly sign all instruments and agreements to further ensure the
assignment of all such inventions, ideas, processes, and designs to the Company.
The decision to file for patent or copyright protection or to maintain such
development as a trade secret shall be in the sole discretion of the Company,
and the Employee shall be bound by such decision. The Employee shall provide as
a schedule to this Agreement, a complete list of all inventions, ideas,
processes, and designs, if any, patented or unpatented, copyrighted or non-
copyrighted, including a brief description, which Employee made or conceived
prior to Employee's employment with the Company and which therefore are excluded
from the scope of this Agreement.
13. Indebtedness. If, during the course of the Employee's employment
------------
under this Agreement, the Employee becomes indebted to the Company for any
reason, the Company may, if it so elects, set off any sum due to the Company
from the Employee and collect any remaining balance from the Employee.
14. Assignability. The rights and obligations of the Company under this
-------------
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assign shall acquire all
or substantially all of the securities (via merger or otherwise) or assets and
business of the Company. The Employee's obligations hereunder may not be
assigned or alienated and any attempt to do so by the Employee will be void.
15. Severability.
-------------
(a) The Employee expressly agrees that the character, duration and
geographical scope of the non-competition provisions set forth in this Agreement
are reasonable in light of the circumstances as they exist on the date hereof.
Should a decision, however, be made at a later date by a court of competent
jurisdiction that the character, duration or geographical scope of such
provisions is unreasonable, then it is the intention and the agreement of the
Employee and the Company that this Agreement shall be construed by the court in
such a manner as to impose only those restrictions on the Employee's conduct
that are reasonable in the light of the circumstances and as are necessary to
assure to the Company the benefits of this Agreement. If, in any judicial
proceeding, a court shall refuse to enforce all of the separate covenants deemed
included herein because taken together they are more extensive than necessary to
assure to the Company the intended benefits of this Agreement, it is expressly
understood and agreed by the parties hereto that the provisions of this
Agreement that, if eliminated, would permit the remaining separate provisions to
be enforced in such proceeding shall be deemed eliminated, for the purposes of
such proceeding, from this Agreement.
(b) If any provision of this Agreement otherwise is deemed to be
invalid or unenforceable or is prohibited by the laws of the state or
jurisdiction where it is to be performed, this Agreement shall be considered
divisible as to such provision and such provision shall be inoperative in such
state or jurisdiction and shall not be part of the consideration moving from
either of the parties to the other. The remaining provisions of this Agreement
shall be valid and binding and of like effect as though such provision were not
included.
16. Notices and Addresses. All notices, offers, acceptance and any other
---------------------
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the
10
addressees in person, by Federal Express or similar receipted delivery, by
facsimile delivery or, if mailed, postage prepaid, by certified mail, return
receipt requested, as follows:
To the Company: Anapharm, Inc.
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxxx, Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxx XxXxx, President and CEO
With a Copy to: SFBC International, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000.
Facsimile: (000) 000-0000
Email: xxxxxxxx@xxxxx.xxx
To the Employee: At the address contained in the Company's records.
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be evidence of successful facsimile delivery. Time
shall be counted to, or from, as the case may be, the delivery in person or by
mailing.
17. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
18. Governing Law. This Agreement and any dispute, disagreement, or issue
-------------
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the laws of the Province of Quebec and
the laws of Canada applicable therein without regard to choice of law
considerations.
19. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof.
20. Modifications, Waivers. This Agreement may be amended, modified,
----------------------
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument executed by both parties hereto, or
in the case of a waiver, by the party waiving compliance. The failure by either
party at any time or times to require performance of any provisions hereof shall
in no way affect the right at a later time to enforce the same. No waiver by
either party of the breach of any term or covenant contained in this Agreement
whether by conduct or otherwise or in respect of any one or more instances,
shall be deemed to be, or be construed as, a further or continuing waiver of any
breach, or a waiver of the breach of any other term or covenant contained in
this Agreement.
11
21. Additional Documents. The parties hereto shall execute such
--------------------
additional instruments as may be reasonably required by their counsel in order
to carry out the purpose and intent of this Agreement and to fulfill the
obligations of the parties hereunder.
22. Section and Paragraph Headings. The section and paragraph headings in
------------------------------
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
23. Language. The Parties confirm that it is their wish that this
--------
Employment Agreement, as well as any other documents relating to this Employment
Agreement, including notices, schedules and authorizations, have been and shall
be drawn up in the English language only. Les signataires confirment leur
volonte que la presente convention d'emploi, de meme que tous les documents s'y
rattachant, y compris tout avis, annexe et autorisation, soient rediges en
anglais seulement.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the date and year first above written.
SFBC
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx XxXxx
---------------------------- -------------------------
Xxxxxxx X. Xxxxxx Xxxx XxXxx
Executive Vice President Employee
12
SCHEDULEA
Bonus
(Section 6(c))
Up to 35% of base salary based upon performance.
13
