Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated February 13, 2006 by and
between DATATRAK International, Inc. (the "Company") and Xxx Xxx Xxxx (the
"Employee").
WHEREAS, contemporaneous with the execution of this Agreement, the
Company has entered into an Agreement and Plan of Merger with ClickFind, Inc., a
Texas corporation, ("ClickFind"), CF Merger Sub, Inc., an Ohio corporation
("Merger Sub"), the Persons identified on Exhibit A attached thereto (each, a
"Shareholder," and collectively, "Shareholders") and, solely for purposes of
Sections 8 and 9, Xxx Xxx Xxxx, in his separate capacity as the shareholder
representative ("Shareholder Representative") (the "Merger Agreement"), pursuant
to which ClickFind will merge with and into Merger Sub (the "Merger");
WHEREAS, Employee has been an officer, shareholder and Director of
ClickFind and has valuable knowledge and experience pertaining to the business
of ClickFind, including, but not limited to, knowledge and possession of
confidential, proprietary, and trade secret information of ClickFind;
WHEREAS, as an inducement to the Company and Merger Sub to enter into
the Merger Agreement, the parties desire to arrange for the Employee's
undertaking not to compete with or solicit customers or employees from the
Company, Merger Sub or ClickFind;
WHEREAS, this Agreement is ancillary to the Merger Agreement and has
been executed by the parties in connection with the closing of the Merger;
WHEREAS, as a result of the foregoing, the Company desires to employ
the Employee and the Employee desires to accept such employment upon the terms
and conditions set forth herein including, without limitation, the
non-competition, non-solicitation and nondisclosure covenants and agreements of
the Employee set forth in SECTIONS 8 AND 9 hereof.
AGREEMENT
1. Term of Employment.
a. Subject to the consummation of the transactions contemplated
by the Merger Agreement and the provisions of SECTION 7 of this Agreement, the
Company hereby agrees to employ Employee, and Employee hereby agrees to be
employed by the Company, for the term of employment set forth in this SECTION 1,
in the position and with the duties and responsibilities set forth in SECTION 2
and upon the other terms and conditions set forth in this Agreement. The term of
Employee's employment hereunder (the "Employment Term") shall commence as of
February 13, 2006, and shall continue through and expire on February 13, 2009,
unless sooner terminated pursuant to SECTION 7.
b. For purposes of this Agreement, "Termination Date" shall mean
the termination of Employee's employment with the Company, whether previous to
or upon expiration of the Employment Term.
2. Position.
a. During the Employment Term, Employee shall serve as the
Company's Vice President of eClinical Development, with responsibilities for
software and eClinical product development, or such other duties which are not
materially inconsistent with the foregoing, as may be determined from time to
time by the Chief Executive Officer or the Board of Directors (the "Board") of
the Company.
b. At all times during the Employment Term, Employee agrees to
devote Employee's full business time and best efforts to the performance of
Employee's duties hereunder and to discharge Employee's duties faithfully,
diligently, and to the best of Employee's ability. Employee will not engage in
any other business, profession or occupation for compensation or otherwise which
would conflict or interfere with the rendition of such services either directly
or indirectly, without the prior written consent of the Board.
3. Base Salary. During the Employment Term, the Company shall pay
Employee a minimum base salary at the annual rate of One Hundred Forty Thousand
Dollars ($140,000) (the "Contractual Salary"), payable in regular installments
in accordance with the Company's customary payroll practices. Employee shall be
entitled to such increases in Employee's base salary, if any, as may be
determined from time to time in the sole discretion of the Board or the
Compensation Committee of the Board (the "Compensation Committee"). Employee's
annual base salary, as in effect from time to time, is hereinafter referred to
as the "Base Salary."
4. Annual Bonus. With respect to the remaining portion of fiscal year
2006 and each full fiscal year thereafter during the Employment Term, Employee
shall be entitled to such annual bonus award (an "Annual Bonus"), if any, as may
be determined from time to time in the sole discretion of the Board or the
Compensation Committee.
5. Employee Benefits. During the Employment Term, Employee shall be
entitled to participate in the Company's employee benefit plans as in effect
from time to time (collectively "Benefit Plans"), on the same basis as those
benefits are generally made available to similarly situated employees of the
Company.
6. Business Expenses. During the Employment Term, reasonable business
expenses incurred by Employee in the performance of Employee's duties hereunder
shall be reimbursed by the Company in accordance with Company policies.
2
7. Termination.
a. Termination Events. The Employment Term shall terminate
immediately upon the occurrence of any of the following events: (i) expiration
of the Employment Term; (ii) the death of Employee or the election of the
Company to terminate the Employment Term upon the Disability of Employee; (iii)
the resignation of Employee other than for Good Reason; (iv) the Company's
termination of the Employment Term for Cause; or (v) the Company's termination
of the Employment Term at any time, without Cause, for any reason or no reason,
or the resignation of Employee for Good Reason.
b. Compensation and Benefits Upon Termination. Employee shall be
entitled to only the following compensation and benefits upon termination of the
Employment Term:
(i) Upon expiration of the Employment Term under SUBSECTION 7(A)(I),
Employee shall be entitled to no further payment of Base Salary
and, except as required by applicable law, shall no longer be
entitled to participate in the Benefit Plans.
(ii) Upon termination of the Employment Term in connection with death
or Disability of Employee under SUBSECTION 7(A)(II), Employee
shall be entitled to payment of Base Salary only for the
remainder of the month in which termination of the Employment
Term occurs and thereafter payments of Base Salary shall end and
cease to be payable. Employee shall no longer be entitled to
participate in the Benefit Plans after the Termination Date,
except as required by applicable law.
For purposes of this Agreement, the Employee will be deemed to
have a "Disability" if (a) the Employee is unable to perform the
essential duties of the Employee's position due to physical or
emotional incapacity or illness, where such inability is
reasonably expected to be of long-continued and indefinite
duration (i.e., for one hundred twenty (120) consecutive days or
one hundred eighty (180) days during any twelve (12) month
period); or (b) the Employee is entitled to (i) disability
retirement benefits under the federal Social Security Act or (ii)
recover benefits under any long-term disability plan or policy
maintained by the Company or the Employee. In the event of a
dispute, the determination of a Disability shall be made
reasonably by the Board or the Compensation Committee and shall
be supported by advice of an independent physician competent in
the medical specialty to which such Disability relates. The
Employee must submit to a reasonable number (but not more than 3)
of examinations by the physician making the determination of
disability under this SECTION 7(B)(II), at the Company's expense,
and the Employee hereby authorizes the disclosure and release to
the Company of such determination and all supporting medical
records. If the Employee is not legally competent, the Employee's
legal guardian or duly authorized attorney-in-fact will act in
3
the Employee's stead, for the purposes of submitting the Employee
to the examinations, and providing the authorization of
disclosure as required under this SECTION 7(B)(II).
(iii) Upon resignation of Employee other than for Good Reason under
SUBSECTION 7(A)(III) or upon termination of the Employment Term
for Cause under SUBSECTION 7(A)(IV), Employee shall be entitled
to payment of Base Salary only through the Termination Date (with
the final payment prorated based on the number of days of service
in the month of termination) and thereafter payments of Base
Salary shall end and cease to be payable. The Company shall then
have no further obligations to Employee under this Agreement and
Employee shall no longer be entitled to participate in the
Benefit Plans after the Termination Date, except as required by
applicable law.
For purposes of this Agreement, "Cause" shall mean the Employee's
(i) willful or continuing failure to perform substantially the
Employee's duties with the Company which is not cured within
thirty (30) days following written detailed notice describing the
action constituting "failure to perform", (ii) commission of, or
plea of guilty or no contest to a (x) felony or (y) crime
involving moral turpitude, (iii) willful malfeasance or
misconduct which is demonstrably injurious to the Company, (iv)
breach of the material terms of this Agreement, including,
without limitation, any non-competition, non-solicitation or
confidentiality provisions or any other act or course of conduct
which is demonstrably and materially injurious to the Company.
For purposes of this Agreement, "Good Reason" shall mean, without
Employee's consent, (i) any reduction in Employee's base salary
to a level below the Contractual Salary; or (ii) a change of more
than 60 miles in the location of Employee's principal office from
Bryan, Texas; in each case which is not cured within thirty (30)
days following the Company's receipt of written notice from the
Employee describing the event constituting Good Reason.
(iv) Upon termination of the Employment Term by the Company without
Cause and upon resignation by the Employee for Good Reason under
SUBSECTION 7(A)(V), Employee shall be entitled to a lump sum
severance payment equal to the amount the Employee would have
been paid in Contractual Salary from the Termination Date through
February 13, 2009 (the "Severance Payment"). The Severance
Payment will be paid to Employee on the second month anniversary
of the Termination Date. Employee shall no longer be entitled to
participate in the Benefit Plans after the Termination Date,
except as required by applicable law.
4
Notwithstanding any other provision of this SUBSECTION 7(B)(IV)
or this Agreement, the Company shall have no obligation to make
the Severance Payment referred to in this SUBSECTION 7(B)(IV)
unless (x) Employee executes and delivers to the Company a
release and waiver of claims in a form reasonably acceptable to
the Company and (y) Employee refrains from revoking, rescinding
or otherwise repudiating such release and waiver of claims for
all applicable periods, if any, during which Employee may revoke
it.
c. Notice of Termination. Any purported termination of employment
by the Company or by Employee (other than due to Employee's death or expiration
of the Employment Term) shall be communicated by written Notice of Termination
to the other party hereto in accordance with SECTION 12(J) hereof. For purposes
of this Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of employment under the provision so indicated.
8. Non-Competition; Non-Solicitation.
a. Employee acknowledges and recognizes the highly competitive
nature of the business of the Company and its Affiliates, as defined below, and
further acknowledges and recognizes that he or she currently possesses and has
knowledge of valuable confidential, proprietary, and trade secret information of
ClickFind, and that Employee's possession and knowledge of same is a material
inducement for the Company's willingness to enter into the Merger Agreement and
this Agreement. Employee further acknowledges and recognizes, by his or her
execution of this Agreement, (i) receipt of the Merger Consideration, as that
term is defined in the Merger Agreement, in exchange for Employee's shares in
ClickFind and (ii) receipt of confidential, proprietary, and trade secret
information of the Company in the form of the information set forth on Schedule
I; and in light of the foregoing acknowledgments, accordingly agrees as follows:
(1) While employed by the Company and for a period of three years
following the date Employee ceases to be employed by the Company (the
"Restricted Period," which in no event shall terminate before February 13,
2009), whether on Employee's own behalf or on behalf of or in conjunction with
any person, firm, partnership, joint venture, association, corporation or other
business organization, entity or enterprise whatsoever ("Person"), Employee will
not directly or indirectly solicit or assist in soliciting in competition with
the Company, or its subsidiaries or ClickFind as it existed both prior to and
after the Merger (collectively, the "Affiliates") the business of any client or
customer or prospective client or customer:
(i) with whom Employee had personal contact or dealings on
behalf of the Company or its Affiliates during the one (1)
year period preceding Employee's termination of employment;
(ii) with whom employees reporting to Employee have had personal
contact or dealings on behalf of the Company or its
Affiliates during the one (1) year
5
period immediately preceding the Employee's termination of
employment; or
(iii) for whom Employee had direct or indirect responsibility
during the one year period immediately preceding Employee's
termination of employment.
(2) During the Restricted Period, Employee will not directly or
indirectly:
(i) engage in the businesses of the Company and its Affiliates
as conducted at the date that Employee ceases to be employed
by the Company (including, without limitation, businesses
which the Company or its Affiliates have specific plans to
conduct in the future and as to which Employee is aware of
such planning) or engage in other activities performed by
the Company or its Affiliates, or is the type of business or
activity in which Employee was directly engaged on behalf of
or the Company or its Affiliates during the two year period
immediately preceding Employee's termination of employment
(a "Competitive Business");
(ii) enter the employ of, or render any services to, any Person
(or any division or controlled or controlling affiliate of
any Person) who or which engages in a Competitive Business;
(iii) acquire a financial interest in, or otherwise become
actively involved with, any Competitive Business, directly
or indirectly, as an individual, partner, shareholder,
officer, director, principal, agent, trustee or consultant;
or
(iv) interfere with, or attempt to interfere with, business
relationships (whether formed before, on or after the date
of this Agreement) between the Company or any of its
Affiliates and customers, clients, suppliers, partners,
members or investors of the Company or its Affiliates.
(3) Notwithstanding anything to the contrary in this Agreement,
Employee may, directly or indirectly own, solely as an investment, securities of
any Person engaged in the business of the Company or its Affiliates which are
publicly traded on a national or regional stock exchange or on the
over-the-counter market if Employee (i) is not a controlling person of, or a
member of a group which controls, such person and (ii) does not, directly or
indirectly, own more than 2% of any class of securities of such Person.
(4) During the Restricted Period, Employee will not, whether on
Employee's own behalf or on behalf of or in conjunction with any Person,
directly or indirectly:
(i) solicit or encourage any employee of the Company or its
Affiliates to leave the employment of the Company or its
Affiliates; or
(ii) hire any such employee who was employed by the Company or
its Affiliates as of the date of Employee's termination of
employment with
6
the Company or who left the employment of the Company or its
Affiliates coincident with, or within one year prior to or
after, the termination of Employee's employment with the
Company.
(5) During the Restricted Period, Employee will not, directly or
indirectly, solicit or encourage to cease to work with the Company or its
Affiliates any consultant then under contract with the Company or its
Affiliates.
b. It is expressly understood and agreed that although Employee
and the Company consider the restrictions contained in this SECTION 8 to be
reasonable, if a final judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction against Employee, the provisions
of this Agreement shall not be rendered void but shall be deemed amended to
apply as to such maximum time and territory and to such maximum extent as such
court may judicially determine or indicate to be enforceable. Alternatively, if
any court of competent jurisdiction finds that any restriction contained in this
Agreement is unenforceable, and such restriction cannot be amended so as to make
it enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
c. The provisions of SECTION 8 shall survive termination of the
Employment Term.
9. Confidentiality; Intellectual Property.
a. Confidentiality.
(i) Employee will not at any time (whether during or after
Employee's employment with the Company) except in the scope and course of his
employment with the Company (x) retain or use for the benefit, purposes or
account of Employee or any other Person; or (y) disclose, divulge, reveal,
communicate, share, transfer or provide access to any Person outside the Company
(other than its professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential information of the
Company, including, without limitation, trade secrets, know-how, research and
development, software, databases, inventions, processes, formulae, technology,
designs and other intellectual property, information concerning finances,
investments, profits, pricing, costs, products, services, vendors, customers,
clients, partners, investors, personnel, compensation, recruiting, training,
advertising, sales, marketing, promotions, government and regulatory activities
and approvals -- concerning the past, current or future business, activities and
operations of the Company or its Affiliates and/or any third party that has
disclosed or provided any of same to the Company on a confidential basis
("Confidential Information") without the prior written authorization of the
Board.
(ii) Confidential Information shall not include any information
that is (a) generally known to the industry or the public other than as a result
of Employee's breach of this covenant or any breach of other confidentiality
obligations by third parties; (b) made legitimately available to Employee by a
third party without breach of any confidentiality obligation; or (c) required by
law to be disclosed; provided that Employee shall give prompt written notice to
the
7
Company of such requirement, disclose no more information than is so required,
and cooperate with any attempts by the Company to obtain a protective order or
similar treatment.
(iii) Upon termination of Employee's employment with the Company
for any reason, Employee shall (x) cease and not thereafter commence use of any
Confidential Information or intellectual property (including without limitation,
any patent, invention, copyright, trade secret, trademark, trade name, logo,
domain name or other source indicator) owned or used by the Company or its
Affiliates; (y) immediately return to the Company, at the Company's option, all
originals and copies of information or things in any form or medium (including
memoranda, books, papers, plans, computer files, letters and other data) in
Employee's possession or control (including any of the foregoing stored or
located in Employee's office, home, laptop or other computer, whether or not
Company property) that contain Confidential Information or otherwise relate to
the business of the Company or its Affiliates, except that Employee may retain
only those portions of any personal notes, notebooks and diaries that do not
contain any Confidential Information; and (z) notify and fully cooperate with
the Company regarding the delivery or destruction of any other Confidential
Information of which Employee is or becomes aware.
b. Intellectual Property.
(i) If Employee has created, invented, designed, developed,
contributed to or improved any works of authorship, inventions, intellectual
property, materials, documents or other work product (including without
limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content, or audiovisual materials) ("Works"),
either alone or with third parties, prior to Employee's employment by the
Company or its Affiliates, that are relevant to or implicated by such employment
("Prior Works"), Employee hereby grants the Company a perpetual, irrevocable,
non-exclusive, royalty-free, worldwide, assignable, license and right to
sublicense under all rights and intellectual property rights (including rights
under patent, industrial property, copyright, trademark, trade secret, unfair
competition and related laws) in such Prior Works for all purposes in connection
with the Company's or its Affiliates' current and future business. Set forth on
Exhibit A is a complete list of all Prior Works that Employee considers to be
the property of third parties that therefore should be excluded from the scope
of this Section 9(b)(i). If disclosure of any such Prior Work on Exhibit A would
cause Employee to violate any prior confidentiality agreement, Employee should
not list such Prior Work on Exhibit A but rather should inform the Company that
all Prior Works have not been listed for that reason.
8
(ii) If Employee has created, invented, designed, developed,
contributed to or improved any Works, or does create, invent, design, develop,
contribute to or improve any Works, either alone or with third parties, at any
time during Employee's employment with the Company or its Affiliates and within
the scope of such employment or with the use of any of the resources of the
Company or its Affiliates ("Company Works"), Employee shall promptly and fully
disclose same to the Company and hereby irrevocably assigns, transfers and
conveys, to the maximum extent permitted by applicable law, all rights and
intellectual property rights therein (including rights under patent, industrial
property, copyright, trademark, trade secret, unfair competition and related
laws) to the Company to the extent ownership of any such rights does not vest
originally in the Company or its Affiliates.
(iii) Employee agrees to keep and maintain adequate and current
written records (in the form of notes, sketches, drawings, and any other form or
media requested by the Company) of all Company Works. The records will be
available to and remain the sole property and intellectual property of the
Company at all times.
(iv) Employee shall take all reasonably requested actions and
execute all reasonably requested documents (including any licenses or
assignments) at the Company's expense (but without further remuneration) to
assist the Company in validating, maintaining, protecting, enforcing,
perfecting, recording, patenting or registering any of the Company's rights in
the Prior Works and Company Works. After reasonable effort by the Company, if
the Company is unable for any reason to secure Employee's signature on any
document for this purpose, then Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Employee's
agent and attorney in fact, to act for and in Employee's behalf and stead to
execute any documents and to do all other lawfully permitted acts in connection
with the foregoing.
(v) Employee shall not improperly use for the benefit of, bring
to any premises of, divulge, disclose, communicate, reveal, transfer or provide
access to, or share with the Company any confidential, proprietary or non-public
information or intellectual property relating to a former employer (other than
ClickFind) or other third party without the prior written permission of such
third party. Employee hereby indemnifies, holds harmless and agrees to defend
the Company and its officers, directors, partners, employees, agents and
representatives from any breach of the foregoing covenant.
(vi) The provisions of Section 9 shall survive the termination of
Employee's employment for any reason, whether during or subsequent to the
Employment Term.
10. Specific Performance. Employee acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the
provisions of Section 8 or Section 9 would be inadequate and the Company would
suffer irreparable damages as a result of such breach or threatened breach. In
recognition of this fact, Employee agrees that, in the event of such a breach or
threatened breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to cease making any payments or providing
any benefit otherwise required by this Agreement and obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
9
11. Adherence to Employment Policies. Employee shall comply with all
relevant written policies and guidelines of the Company, including policies
regarding the protection of confidential information and intellectual property
and potential conflicts of interest. Employee acknowledges that the Company may
amend any such policies and guidelines from time to time, and that Employee
remains at all times bound by their most current version.
12. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, without regard to
conflicts of laws principles thereof. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of this Agreement
shall be brought against any of the parties in the courts of the State of Ohio,
County of Cuyahoga, or, if it has or can acquire jurisdiction, in the United
States District Court for the Northern District of Ohio, and each of the parties
consents to the exclusive jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
b. Entire Agreement/Amendments. This Agreement contains the
entire understanding of the parties with respect to the employment of Employee
by the Company. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein. This Agreement may not be
altered, modified, or amended except by written instrument signed by the parties
hereto.
c. No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
d. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
e. Assignment. This Agreement, and all of Employee's rights and
duties hereunder, shall not be assignable or delegable by Employee. Any
purported assignment or delegation by Employee in violation of the foregoing
shall be null and void and of no force and effect. This Agreement may be
assigned by the Company to a person or entity which is an affiliate or a
successor in interest to substantially all of the business operations of the
Company. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such affiliate or successor
person or entity.
f. Set Off. The Company's obligation to pay Employee the amounts
provided and to make the arrangements provided hereunder shall be subject to
set-off, counterclaim or recoupment of amounts owed by Employee to the Company
or its Affiliates.
10
g. Successors; Binding Agreement. This Agreement shall inure to
the benefit of and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
h. Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered by hand or overnight courier or
three days after it has been mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below in this Agreement, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
If to the Company: DATATRAK International, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Facsimile No.: 000-000-0000
with a copy to: Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. XxXxx, Esq.
Facsimile No.: 000-000-0000
If to Employee:
To the most recent address of Employee set forth in the personnel records
of the Company.
i. Employee Representation. Employee hereby represents to the
Company that the execution and delivery of this Agreement by Employee and the
Company and the performance by Employee of Employee's duties hereunder shall not
constitute a breach of, or otherwise contravene, the terms of any employment
agreement or other agreement or policy to which Employee is a party or otherwise
bound.
j. Prior Agreements This Agreement supercedes all prior
agreements and understandings (including verbal agreements) between Employee and
the Company and/or its Affiliates regarding the terms and conditions of
Employee's employment with the Company.
k. Cooperation. Employee shall provide Employee's reasonable
cooperation in connection with any action or proceeding (or any appeal from any
action or proceeding) which relates to events occurring during Employee's
employment hereunder. This provision shall survive any termination of this
Agreement.
11
l. Withholding Taxes. The Company may withhold from any amounts
payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
m. Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
n. Deferred Compensation - Compliance with Section 409A.
Notwithstanding anything herein to the contrary, (i) if the Employee is a
"specified employee" as defined in Section 409A of the Internal Revenue Code of
1986, as amended, and regulations and guidance thereunder (the "Code"), and the
Company determines, based on the advice of counsel, that deferral of any
Severance Payment otherwise payable hereunder as a result of such termination of
employment is necessary to avoid or minimize the additional or accelerated tax
under Section 409A of the Code, then the Company will defer the payment
hereunder but only to the extent so necessary, until the date that is six months
following the Termination Date and (ii) if the Company determines, based on the
advice of counsel, that any other payments of money or other benefits due to
Employee hereunder could cause the application of an accelerated or additional
tax under Section 409A of the Code, such payments or other benefits shall be
deferred if deferral will make such payment or other benefits compliant under
Section 409A of the Code, or otherwise such payment or other benefits shall be
restructured, to the extent possible, in a manner, determined by the Board or
the Compensation Committee, that does not cause such an accelerated or
additional tax.
12
IN WITNESS WHEREOF, the parties hereto have duly executed this Employment
Agreement as of the day and year first above written.
DATATRAK INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & CEO
/s/ Xxx Xxx Xxxx
----------------------------------------
Xxx Xxx Xxxx
