EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement"), dated July 13, 2007, is made
and entered into by and between Assent Consulting, a California corporation
("Employer"), and Xxxxx Xxxxxx ("Employee").
WHEREAS, Assent Consulting (the "Company"), Employee, and the other
Stockholders of the Company are parties to a Stock Purchase Agreement dated the
date hereof (the "Purchase Agreement") pursuant to which ClinForce, LLC is
acquiring all of the issued and outstanding shares of capital stock of the
Company; and
WHEREAS, Employee is a Stockholder of the Company and Employer desires
to have the continuing benefit of his knowledge and experience and to employ
Employee; and
WHEREAS, Employee desires to be employed by Employer in the business of
staffing clinical trials and research professionals on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, IT IS AGREED by the parties hereto as follows:
1. Employment and Duties. Employer hereby offers employment to
Employee, and Employee hereby accepts employment by Employer, such employment
being terminable solely in accordance with the terms and conditions of this
Agreement. Employee's title will be Executive Vice President. In such
employment, Employee shall perform such services, and shall have such authority,
duties and responsibilities as shall be reasonably assigned to Employee from
time to time by the President of ClinForce, LLC and shall be consistent with
Employee's authority, duties and responsibilities with Company. Employee shall
report to Xxxx Xxxx, President of ClinForce, LLC. Employee shall diligently and
faithfully perform all duties assigned to the best of Employee's abilities in a
professional manner. Employee shall take actions that are reasonable and
consistent with his past practices as the former Stockholder of the Company and
which are expected to have results that are sustainable after the term of this
Agreement ends. Employee agrees to devote his full attention, time and efforts
to the business and affairs of the Employer in order to fully manage, promote
and further the business and interests of Employer. Employee agrees that
Employee will not hold any concurrent employment or business positions without
the prior express written consent of Employer; provided that the foregoing shall
not be construed as preventing Employee from making investments in other
businesses or enterprises so long as they do not interfere with his ability to
discharge his duties and responsibilities to Employer. In no event shall
Employee be required to transfer to a location without his prior written
consent.
2. Term of Employment; Compensation. Employee's employment hereunder
shall commence at 12:01 a.m. on the first day following the consummation of the
transactions contemplated in the Purchase Agreement, and shall end at 11:59 p.m.
on December 31, 2008 (the "Term"), unless renewed or as mutually agreed upon by
the parties or sooner terminated by Employer for Cause or without Cause or by
Employee for Good Reason in accordance with the terms and conditions set forth
in this Agreement. During the term hereof, Employer shall pay Employee an annual
salary of $160,000.00 (prorated for the remainder of fiscal year 2007 based upon
a 365-day year). Employee shall also be included or entitled to participate in
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such employee benefit programs as are maintained from time to time by Employer
on the same terms and conditions as similarly situated employees.
As used in this Agreement, "Cause" shall mean (1) the conviction of a felony or
any crime involving moral turpitude or the pleading of nolo contendere to any
such act, (2) the conviction of a crime involving any act or acts of dishonesty
which are intended to result or actually result, directly or indirectly, in gain
or personal enrichment of Employee or any related person or affiliated person or
Employer or are intended to cause harm or damage to Employer or any of its
Affiliates; (3) the illegal use of controlled substances, (4) the use of alcohol
so as to have a material adverse effect on the Employer, (5) the conviction of
the misappropriation or embezzlement of assets of Employer or any of its
Affiliates or (6) the breach of any material term or provision of this Agreement
that is not cured within thirty (30) days after written notice from Employer
stating the nature of the breach in reasonable detail.
Employee's employment under this Agreement may be terminated by the Employer
without Cause at any time subsequent to completion of the earnout period per the
Purchase Agreement. In the event of such termination, the Company shall be
obligated to pay Employee severance equal to twelve (12) months of his then
current base salary. If during the applicable time period Employee becomes
employed elsewhere or Employee derives income as a consultant, severance pay
shall be reduced by the amount of Employee's income during that period. The
Company shall not be obligated to make any payments to Employee under this
Section 2 until (i) Employee shall have delivered to the Company a release of
all claims (other than payments to be made under this Section 2) in form and
substance reasonably satisfactory to the Company and (ii) such release shall
have become effective and irrevocable under applicable law.
Employee may terminate his employment under this Agreement at any time for "Good
Reason". As used in this Agreement, "Good Reason" shall mean a breach by
Employer of its obligations under this Agreement or the Purchase Agreement, if
such breach remains unremedied within thirty (30) days after receipt of written
notice from Employee specifically describing such breach. If Employee terminates
his employment for "Good Reason", Employer shall continue to pay Employee his
full salary, bonus and allowances, and continue to provide all applicable
benefits at Employer's expense, for the remaining portion of the term of this
agreement.
3. Expense Reimbursement. Subject to such reasonable limitations as
shall be imposed by Employer from time to time including prior written approval,
and upon submission of such vouchers, receipts or other evidence as may be
required by Employer, Employee shall be entitled to receive reimbursement from
Employer, in accordance with Employer's reimbursement practices, for expenses
reasonably and necessarily incurred by Employee in the course of employment
hereunder.
4. Representations and Warranties. Employee hereby represents and
warrants to Employer that (i) there are no restrictions, agreements or
understandings whatsoever to which Employee is a party which would prevent or
make unlawful Employee's execution of this Agreement or Employee's employment
hereunder, (ii) Employee's execution of this Agreement and Employee's employment
hereunder shall not constitute a breach or violation of any law, contract,
agreement or understanding, oral or written, to which Employee is a party or by
which Employee is bound, (iii) Employee is free and able to execute this
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Agreement and to enter into employment with Employer, and (iv) this Agreement is
Employee's valid and binding obligation, enforceable in accordance with its
terms. The foregoing representations and warranties shall forever survive the
termination of this Agreement.
5. Covenants.
(a) Employee acknowledges, understands and agrees that (i) the
agreements and covenants Employee is providing in this Section 5 are reasonable
and necessary to Employer's protection of its legitimate interest, and any
corporation, general or limited partnership, limited liability company, joint
venture, estate, trust, association or other organization company, directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with Employer (in each instance, an "Affiliate"), (ii)
Employer and its Affiliates would not be able to protect Confidential
Information (as defined below) against unauthorized use and their other
legitimate business interests unless Employee agreed to the covenants contain in
this Section 5, (iii) Employer and its Affiliates may be irreparably damaged if
Employee was to disclose Confidential Information or use such confidential
Information in an activity competing or interfering with the business of
Employer or its Affiliates in violation of the terms of this Section below, (iv)
the scope and length and the geographical restrictions contained in this Section
5 are fair and reasonable, (v) this Agreement is not the result of overreaching,
duress or coercion of any kind, and (vi) the full, uninhibited and faithful
observance of each of the covenants contained in this Agreement will not cause
Employee any undue hardship, financial or otherwise.
(b) For the purposes hereof, "Confidential Information" shall mean
any and all information (whether written, graphic, oral or in any other form)
considered proprietary and confidential by Employer and its Affiliates that was
disclosed, directly or indirectly, to or known by Employee as a consequence of
or through retention by Employer, including information conceived, originated,
disclosed, discovered or developed by Employee or in collaboration with others)
relating to the past, present or future business of Employer or its Affiliates,
developed by Employee (or in collaboration with others), analyses, compilations,
studies or other documents prepared by Employee, potential transactions by
Employer or its Affiliates, Employer's or its Affiliates' methods of doing
business, specialized techniques developed by, for or through Employer or its
Affiliates, information about costs and salaries, profits, markets, sales
products, personnel information, pricing policies, operational methods, plans
for future development, research, ideas, expansion plans, designs, drawings,
financial affairs, marketing strategies, gross and net profits of Employer or
its Affiliates, the volume of business generated by Employer or its Affiliates,
technical processes, supplier/vendor, tenant or landlord information, general
and discreet business plans, pricing, leads, forecasts and any and all other
information not readily available to the public.
(c) Employee agrees that Employee shall not use or disclose to
anyone outside of Employer any Confidential Information, except for any
Confidential Information (i) lawfully received from another source free of
restriction and without breach of this Agreement, (ii) that becomes generally
available to the public without breach of this Agreement, (iii) known to the
receiving party at the time of disclosure, or (iv) independently developed by
the receiving party without resort to the Confidential Information. In the event
Employee is requested or required by law, judicial or governmental order or
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other legal process or pronouncement (including any discovery request), to
disclose any Confidential Information, Employee will give Employer prompt
written notice of such request or requirement so that Employer may seek an
appropriate protective order or other remedy. Employee will cooperate with
Employer to obtain such protective order or other remedy, which notice shall be
furnished to Employer not less than seven (7) days prior to any such disclosure
unless otherwise required by law, judicial or governmental order or other legal
process or pronouncement. In the event such order or other remedy is not
obtained, Employee will furnish only that portion of the Confidential
Information that, in the opinion of Employee's counsel, is legally required to
be disclosed and Employee will use Employee's best efforts (at Employer's
expense) to obtain court orders or other assurances that confidential treatment
will be accorded to any such Confidential Information which must, necessarily,
be disclosed.
(d) Employee covenants and agrees that he will not, and will cause
his Affiliates not to, directly or indirectly, at any time from the date of this
Agreement and unless employment is terminated by Employee for Good Reason
continuing for a period of two (2) years after the termination of his employment
hereunder for any reason, compete with Employer or any of its Affiliates,
directly or indirectly, whether for her own account or otherwise. As used in
this Section 5(d), to "compete" shall mean to, directly or indirectly, own,
manage, operate, join, control, be employed by, or become a director, officer,
employee, agent, broker, consultant, representative or shareholder of a
corporation or an owner of an interest in or an employee, agent, broker,
consultant, representative or partner of a partnership or in any other capacity
whatsoever of any other form of business association, sole proprietorship or
partnership, or otherwise be connected in any manner with the ownership,
management or operation of any Person that engages in a business similar to that
conducted by Employer or ClinForce, LLC.; provided, however, that nothing herein
shall prevent Employee or his Affiliates from acquiring up to two percent (2%)
of the securities of any company listed on a national securities exchange or
quoted on NASDAQ. It is specifically agreed that the period of two (2) years
following termination of this Agreement stated at the beginning of this
paragraph shall be computed by excluding from such computation any time during
which Employee is in violation of any provision of this paragraph.
(e) Employee agrees that, both during Employee's employment by
Employer and unless employment is terminated by Employee for Good Reason for a
period of two (2) years following the termination of his employment by Employer,
Employee will not, (i) interfere with the business of Employer by soliciting,
inducing, attempting to solicit or induce, by combining or conspiring with, or
attempting to do so, or in any other manner, to influence in the first instance
any employees, officers, directors, agents, consultants, representatives,
employees, suppliers, distributors, third party payors, referral sources,
tenants, landlords or business contacts (collectively, the "Business
Affiliates") of Employer or any of its Affiliates to terminate any Business
Affiliate's position as an employee, officer, director, agent, consultant,
representative, employee, supplier, distributor, third party payor, referral
source, tenant, landlord or business contact with Employer or any of its
Affiliates which may exist as of the date of termination of this Agreement or
(ii) induce or attempt to induce any party to any contract with Employer or its
Affiliates which may exist as of the date of termination of this Agreement to
terminate or materially and adversely modify its relationship with Employer or
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any of its Affiliates after the date hereof. It is specifically agreed that the
period of two (2) years following termination of this Agreement stated at the
beginning of this paragraph shall be computed by excluding from such computation
any time during which Employee is in violation of any provision of this
paragraph.
(f) During the term of this Agreement and after the termination of
Employee's employment hereunder for any reason, neither Employer nor Employee
will make any disparaging comments or statements to any employees, agents,
customers, clients, vendors, or any other persons about the other or about the
other's Affiliates.
6. Right to Equitable Relief. Because of the irreparable harm which
Employer could suffer as a result of a violation of any of the provisions set
forth in Section 5 above, which harm could not adequately be compensated for by
monetary damages, Employee acknowledges and agrees that, in the event of such a
violation or threatened violation, Employer shall be entitled to seek the
issuance of an immediate restraining order, injunction or other such appropriate
equitable order (without having to post a bond) by any court of competent
jurisdiction, in order to prevent or halt such violation or anticipated
violation. Every remedy of Employer shall be cumulative, and Employer, in its
sole discretion, may exercise any and all rights and remedies stated in this
Agreement, or otherwise available at law or in equity.
7. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed given when personally delivered or delivered by fax
(with confirmation) or similar means or three (3) business days after having
been mailed to such party, postage prepaid, by registered or certified mail,
return receipt requested with adequate postage affixed. Notices mailed to
Employer shall be mailed to Cross Country Healthcare, Inc., 0000 Xxxx xx
Xxxxxxxx Xxxx., X.X., Xxxx Xxxxx, Xxxxxxx 00000, Attention, Xxxxx X. Xxxx,
General Counsel. Notices mailed to the Employee shall be mailed to the most
recent address appearing on the records of Employer. Either party may from time
to time designate a different address for notices to be sent to such party by
giving the other party written notice hereunder of such different address.
8. Assignment. Employee acknowledges that the services to be performed
hereunder are unique and personal. Accordingly, Employee may not assign any of
Employee's rights or delegate any of his duties or obligations hereunder. The
rights and obligations of Employer under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of Employer.
9. Severability. In the event of the invalidity or the unenforceability
of any provision of this Agreement, the remaining provisions hereof shall not be
affected, and this Agreement shall be construed as if the invalid or
unenforceable provision were not a part hereof.
10. Modification. Except as otherwise provided by this Agreement, no
revocation, termination, waiver, modification or change of any of the provisions
of the Agreement shall be valid unless in writing and signed by both parties
hereto.
11. Waiver of Breach. The waiver of any breach of any term or condition
of this Agreement shall not be deemed to be a waiver of any continuing or
subsequent breach, nor constitute a waiver of any other term or condition of
this Agreement.
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12. Complete Understanding. This Agreement contains a complete
statement of the agreement between Employee and Employer and supersedes all
previous oral and written agreements between them concerning the subject matter
hereof.
13. Governing Law. The laws of the State of Delaware shall govern this
Agreement without giving effect to conflicts of laws provisions.
IN WITNESS WHEREOF, this Agreement has been duly executed effective as
of the date first above written.
ASSENT CONSULTING, a California
corporation
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
Title: President
By: /s/ Xxxxx Xxxxxx
----------------
Xxxxx Xxxxxx
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