Exhibit 10.11
EXECUTION COPY
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EMPLOYMENT AND NON-COMPETITION AGREEMENT
BETWEEN
XXXXXXX X. XXXXXXXX
AND
PHARMACEUTICAL RESEARCH ASSOCIATES, INC.
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 16th day
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of October, 1996, by and between Pharmaceutical Research Associates, Inc., a
Virginia corporation (hereinafter called "Employer"), having its principal
office in the Commonwealth of Virginia, and Xxxxxxx X. Xxxxxxxx, (hereinafter
called "Employee").
WHEREAS, Employer and Employee desire to enter into an agreement for
the employment by Employer of Employee.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby covenant and
agree as follows:
1. Position. Employer hereby employs Employee and Employee hereby
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accepts employment in the position of Executive Vice-President, with appropriate
title, rank, status and responsibilities as determined from time to time by
Employer upon the terms and conditions hereinafter set forth.
2. Term. The period of employment under this Agreement shall begin
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on the date of this Agreement (the "Effective Date"), and shall end on November
1, 1998 (the "First Termination Date"), unless sooner terminated pursuant to
Section 7 hereof. After the First Termination Date, employment hereunder shall
be deemed to be renewed automatically, upon the same terms and conditions, for
successive periods of one year each, until either party, at least ninety (90)
days prior to the expiration of the First Termination Date or any successive
term, as applicable, shall give written notice to the other of a determination
not to renew such employment. Notwithstanding the foregoing, Employee's
employment hereunder shall be terminable at any time, and from time to time, in
accordance with the provisions of Section 7 of this Agreement. Subject to
Section 7(d) of this Agreement, the period during which (a) Employee is
employed under the terms of this Agreement and (b) this
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Agreement is in force (other than with respect to the provisions that survive
termination of this Agreement), shall be known hereafter as the "Term".
3. Duties.
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(a) During the Term, Employee agrees to use his best efforts in the
business of Employer and to devote his full time, skill, attention and energies
to the business of Employer, and shall not, during the Term, be engaged in any
other business activity which shall be competitive with the business of Employer
or which may (i) interfere with Employee's ability to discharge his
responsibilities to Employer, or (ii) detract from the business of Employer.
The Board of Directors of Employer (the "Board") shall have the power to
determine the specific duties that shall be performed by Employee and the means
and manner by which those duties shall be performed.
(b) In furtherance of the restrictions on the activities of Employee
set forth in Section 3(a) above, during the Term, Employee agrees:
(i) not to work either on a part-time or independent contracting
basis for any other company, business or enterprise without the prior
written consent of the Board; and
(ii) not to serve on the board of directors or comparable
governing body of any other material business, civic or community
corporation or similar entity without the prior written consent of the
Board (excluding those boards of directors on which Employee serves as of
the date of this Agreement, which boards, if any, are listed on EXHIBIT A
hereto).
(c) Employee agrees to use his reasonable efforts to impart his skill
and knowledge relating to the business of Employer to such individuals as are
designated by Employer, and to train such individuals in the aspects of the
business with which Employee is familiar. In addition, at the request of
Employer and without additional compensation, Employee shall use his best
efforts to record and document his knowledge relating to the business of
Employer.
4. Base Salary, Increases, Benefits, Expenses. For all services
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rendered by Employee under this Agreement and subject to Section 7 below, during
the Term, Employer shall provide Employee with the following:
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(a) Commencing on the Effective Date, Employer shall pay to Employee,
in equal bi-monthly installments, a base salary of $125,000 per year.
(b) Employee shall be eligible for salary increases, which may be
based on performance and/or cost-of-living factors, as determined under the
provisions of any salary policy of Employer that is generally applicable to
Employer's employees, provided that any such increases shall be reviewed and
approved in advance by the Compensation Committee of the Board (the
"Compensation Committee"), and Employee shall be entitled to such other
increases in compensation as are otherwise imposed by the Compensation
Committee, in its discretion, from time to time.
(c) Employee shall participate in Employer's 1996 Bonus Plan, as such
1996 Bonus Plan currently exists on the date of this Agreement.
(d) Employee shall participate in Employer's standard benefits
programs, which presently include health, life and disability insurance, as well
as those additional benefits (the "Additional Benefits") currently offered to
Employer's executive staff, including additional life and disability insurance,
health club membership and monthly car allowance. It is agreed that the nature
and amount of the Additional Benefits, if any, shall be determined from time to
time by the Compensation Committee, in its discretion. Employer may, at its
election, maintain policies of life and disability insurance on Employee, with
Employer or an affiliate of Employer as beneficiary, and Employee shall
cooperate as necessary to obtain such policies and to keep them in force.
Employee shall be entitled to a total of twenty (20) days of paid vacation per
year. Employee shall be covered by the holiday policy of the Employer, and,
unless inconsistent with applicable law, by any other pension or retirement
plan, disability benefit plan or any other benefit plan or arrangement of
Employer (other than a medical or life insurance plan) presently or hereafter
existing for the benefit of officers or employees of Employer generally, and
determined by the Compensation Committee to be applicable to Employee.
(e) Subject to such conditions as Employer may from time to time
determine, Employer shall pay or reimburse Employee for reasonable expenses
incurred by Employee in connection with the business of Employer and the
performance of Employee's duties hereunder.
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(f) It is understood and agreed that the Compensation Committee will
meet quarterly to review compensation matters of Employer, and will (on at least
an annual basis) set all annual bonus targets, salary increases and benefits to
which Employee shall be entitled to participate.
(g) It is the intention of Employer to have the Compensation Committee
recommend to the Board of Directors (the "PRADE Board") of PRA International,
Inc., a Delaware corporation and the parent company of Employer ("PRADE"), to
create, shortly after the date of this Agreement, an incentive based option plan
for key employees of Employer (the "ISO Plan"). It is expected that the ISO
Plan will consist of options for common stock of PRADE and will have key terms,
subject to alteration and amendment in the sole discretion of the PRADE Board in
consultation with the Compensation Committee, substantially similar to those set
forth on EXHIBIT B hereto as well as those contemplated by Section 8 of this
Agreement. At such time as the ISO Plan is created, Employee shall be entitled
to participate therein.
5. Confidential Information and Certain Property Matters.
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(a) Employee hereby acknowledges that, in the course of his employment
under this Agreement, he will be given access to or otherwise will come into
contact with and/or will possess, and that with respect to Employer's business
he already possesses, information, knowledge, contacts and experience relating
to the businesses, operations, properties, assets, liabilities and financial
condition of Employer and the markets and industries in which it operates,
including, without limitation, information relating to business plans and ideas,
trade secrets, intellectual property, know-how, formulas, processes, research
and development, methods, policies, materials, results of operations, financial
and statistical data, personnel data and customers in and related to the markets
and industries in which Employer operates (the "Confidential Information"),
which are considered by Employer to be valuable, secret, confidential and
proprietary. Employee hereby acknowledges and agrees that the Confidential
Information is valuable, secret, confidential and proprietary to Employer, and
hereby undertakes and agrees that he shall not, at any time (whether during or
after the expiration of the Term), or for any purpose, make public, disclose,
divulge, furnish, release, transfer, sell or otherwise make available to any
person any of the Confidential Information, or otherwise use any of the same or
allow any of the same to be used for any purpose including, but not limited to,
contacting for any purpose the personnel, customers or suppliers of Employer,
other than as
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may be permitted to Employee under this Agreement. Notwithstanding the
foregoing, Employee may, without violating this Section 5(a), disclose
Confidential Information if (i) such disclosure is required to comply with a
valid court order or any administrative law order or decree, (ii) Employee gives
Employer advance written notice of the required disclosure so that Employer may,
if it wishes, seek an appropriate protective order and (iii) Employee, in any
event, requests that any disclosed information be afforded confidential
treatment, to the greatest extent possible.
(b) Employee hereby agrees to promptly and fully disclose to Employer
all Inventions made or conceived by him that would be deemed applicable, useful
or otherwise beneficial to or in respect of, the current business of Employer,
in whole or in part, during his employment with Employer. For the purposes of
this Agreement, "Inventions" include, but are not limited to, customer list
compilations, machinery, apparatus, products, processes, results of research and
development (including without limitation results that constitute trade secrets,
ideas and writings), computer hardware, information systems, software (including
without limitation source code, object code, documentation, diagrams and flow
charts) and any other discoveries, concepts and ideas, whether patentable or not
(including without limitation processes, methods, formulas, and techniques, as
well as improvements thereof or know-how related thereto, concerning any present
or prospective business activities of Employer). Any and all Inventions shall
be the absolute property of Employer or its designees, and Employee acknowledges
that he shall have no interest whatsoever in such Inventions. At the request of
Employer and without additional compensation, Employee (i) shall make
application in due form for United States letters patent and foreign letters
patent on such Inventions, and shall assign to Employer all his right, title and
interest in such Inventions, (ii) shall execute any and all instruments and do
any and all acts necessary or desirable in connection with any such application
for letters patent or in order to establish and perfect in Employer the entire
right, title and interest in such Inventions, patent applications or patents and
(iii) shall execute any instruments necessary or desirable in connection with
any continuations, renewals or reissues thereof or in the conduct of any related
proceedings or litigation. Except as authorized by Employer in writing,
Employee shall not disclose, directly or indirectly, to any person other than
Employer, any information relating to any Invention or any patent application
relating thereto.
(c) Employee hereby acknowledges and agrees that the work performed by
Employee pursuant to his employment by Employer will be specifically ordered or
commissioned by Employer, and that such work shall be considered a "work for
hire" as defined in the
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Copyright Revision Act of 1976 (the "Act"), granting Employer full ownership to
the work and all rights comprised therein. Should any work not fall within the
definition of a "work for hire" as set forth in such Act, Employee hereby
transfers and assigns to Employer full ownership of the copyright to the work
and all rights comprised therein. Employee shall sign all applications for
registration of such copyright as are requested by Employer, and shall sign all
other writings and instruments and perform all other acts necessary or desirable
to carry out the terms of this Agreement.
6. Covenant Not to Compete. (a) Employee agrees that during the
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Term and for a period of two years thereafter (the "Noncompetition Period"), he
shall not directly or indirectly own, manage, operate, join, advise, consult,
control or participate in the ownership, management, operation or control of, or
be connected in any manner with, any business under any name similar to the name
of Employer or any other person whose principal business is (or the principal
business of any of its affiliates is) competitive with Employer or who proposes
to engage in a business competitive with Employer, or in any department or
division of any other person where such department or division is competitive
with Employer (where the nature of Employer's business is measured (i) if the
competitive act in question occurs during the Term, at the time the competitive
act in question is made by Employee, and (ii) if the competitive act in question
occurs after the Term, at the time Employee's employment is terminated
hereunder). During the Noncompetition Period, Employee agrees that he shall not
offer to any person any services that compete with or are substantially similar
to those provided by Employer (where the nature of Employer's business,
including the services provided by Employer, are measured (1) if the offer is
made during the Term, at the time the offer is made by Employee, and (2) if the
offer is made after the Term, at the time Employee's employment is terminated
hereunder).
(b) Employee agrees that he shall not engage in unfair competition
with Employer during the Noncompetition Period.
(c) Employee agrees that he shall not, during the Noncompetition
Period (after the Term), other than on behalf of Employer and consistent with
his duties as an employee of Employer, directly or indirectly solicit the trade
of, or trade with, any person who is a client, customer or supplier of Employer
(where all such clients, customers and suppliers are measured at the time
Employee's employment is terminated hereunder) unless Employee receives the
prior written consent of the Board to do so.
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(d) Employee agrees that he shall not, during the Noncompetition
Period (after the Term), directly or indirectly, solicit or induce (or attempt
to solicit or induce) to leave the employ of Employer for any reason whatsoever,
or hire, any person who (i) was employed by Employer within one year prior to
the time of the act of solicitation or inducement, or (ii) is employed by
Employer at the time of the act of solicitation or inducement.
(e) During and after the Term, Employee agrees not to disparage
Employer, the parent of Employer, or any of the subsidiaries or affiliates of
Employer. During and after the Term, Employer agrees not to disparage the
character of Employee.
(f) Employee hereby specifically acknowledges and agrees that the
provisions of this Section 6 are reasonable and necessary to protect the
legitimate interests of Employer, and that Employee desires to agree to the
provisions of this Section 6. In the event that any of the provisions of this
Section 6 should ever be held to exceed the time, scope or geographic
limitations permitted by applicable law, it is hereby declared to be the
intention of the parties hereto that such provision be reformed to reflect the
maximum time, scope and geographic limitations that are permitted by such law.
(g) Employee hereby acknowledges and agrees for himself, and for any
person participating with him in any breach or threatened breach of this Section
6 (the "Other Person"), that, owing to the special, unique and extraordinary
nature of the matters covered by this Section 6, in the event of any breach or
threatened breach by Employee or the Other Person of any of the provisions
hereof, Employer would suffer substantial and irreparable injury, which could
not be fully compensated by monetary award alone, and Employer would not have
adequate remedy at law. Therefore, Employee agrees that, in such event,
Employer shall be entitled to temporary and/or permanent injunctive relief
against him and any such Other Person, without the necessity of proving actual
damages or of posting bond to enforce any of the provisions of this Section 6,
and he hereby waives for himself and for any such Other Person the defenses,
claims, or arguments that the matters are not special, unique, and
extraordinary, that Employer must prove actual damages, and that Employer has an
adequate remedy at law.
(h) Employee further agrees that the rights and remedies described in
this Section 6 are cumulative and shall be in addition to and not in lieu of any
other rights and remedies otherwise
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available under this Agreement, or at law or in equity, including but not
limited to monetary damages.
7. Termination.
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(a) Basic Termination. In addition to the termination provisions set
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forth in Section 7(b) and Section 7(c) hereof, the Term shall terminate
pursuant to the applicable provisions of Section 2 hereof and immediately upon
the death of Employee. Upon termination of the Term under the applicable
provisions of Section 2 hereof or upon the death of Employee, Employer shall
have no further obligation to Employee except as set forth in Section 8 hereof.
(b) Termination By Employer. The Term may be terminated by Employer
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under the following circumstances (in each case, upon such termination, Employer
shall have no further obligation to Employee except as set forth in Section 8
hereof):
(i) Disability. If during the Term, Employee shall be prevented
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from performing his duties for a continuous period of one hundred and
eighty (180) days by reason of disability which renders Employee physically
or mentally incapable (excluding infrequent and temporary absences due to
illness) of performing substantially all of his duties under this
Agreement, Employer may terminate Employee's employment hereunder. If
after a period of disability commences (but prior to termination of
Employee's employment), Employee returns to work for a period of at least
twenty (20) consecutive work days, the period of disability shall be deemed
to terminate and not be counted towards any period of subsequent
disability. For purposes of this Agreement, Employer, upon the advice of a
qualified and impartial physician, shall determine whether Employee has
become physically or mentally incapable of performing substantially all of
his duties under this Agreement. Employer shall give Employee (or his
guardian, as applicable) thirty (30) days' written notice of termination of
the Term under this Section 7(b)(i).
(ii) For Good Cause. Employer may terminate Employee's
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employment at any time for Good Cause (as defined below), by giving
reasonable notice under the circumstances to Employee. "Good Cause" shall
include, without limitation, (A) a material breach of this Agreement by
Employee (where Employee fails to cure such breach within five (5) days
after being notified in writing by Employer of such breach), (B) Employee's
failure to
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perform his assigned duties without an excuse that is reasonably
acceptable to Employer, (C) Employee engages in an act (or causes an act)
that has a material adverse impact on the reputation, business, business
relationships or financial condition of Employer, (D) the conviction of
Employee of a felony or any crime involving moral turpitude, fraud or
misrepresentation, (E) misappropriation or embezzlement by Employee of
funds or assets of Employer, and (F) Employee's willful refusal to perform
specific directives of the Board which are consistent with the scope,
ethics and nature of Employee's duties and responsibilities hereunder.
Notwithstanding the foregoing, "Good Cause" shall not include a situation
whereby Employer asks Employee to relocate to another city and Employee
declines to do so. Termination by Employer for Good Cause hereunder based
on a material breach of this Agreement or for other wrongful acts committed
by Employee against Employer, shall not abrogate the rights and remedies of
Employer in respect of the breach or wrongful act giving rise to such
termination.
(c) Termination by Employee. The Term may be terminated by Employee
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upon thirty (30) days' written notice given to Employer after a material breach
hereof by Employer (where Employer fails to cure such breach within five (5)
days after being notified in writing by Employee of such breach). Termination
by Employee hereunder shall not abrogate the rights and remedies of Employee in
respect of the breach giving rise to such termination. Upon termination by
Employee following a material breach by Employer, Employee shall have no further
duties or obligations to Employer under this Agreement (except as contemplated
by Section 7(d) below).
(d) Survival of Sections. It is agreed that notwithstanding anything
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contained in this Agreement to the contrary, Sections 5, 6, the applicable
provisions of Sections 7(b)(ii), 8 and 9 of this Agreement shall survive
termination of the Term.
8. Payments by, Obligations of, and Events Affecting the Respective
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Parties in Event of Termination.
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(a) Should the Term terminate under Section 7(a) of this Agreement
(expiration of the Term or the death of Employee), or be terminated by Employer
under Section 7(b)(i) of this Agreement (disability of Employee):
(i) Employee shall be entitled to receive:
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(A) any and all accrued but unpaid base salary compensation
due to Employee as of the date on which the Term is terminated shall
be paid within fifteen (15) days of such date; plus
(B) severance payments equal to the sum of (y) six months
base salary (as it would normally be paid) plus (z) an additional six
months base salary less the fair market value (as of the date on which
the Term is terminated) of any options held by Employee under the ISO
Plan which have vested and any shares held by Employee as a result of
the exercise by Employee of vested options held by Employee under the
ISO Plan (such fair market value to be determined by the Board in good
faith).
(ii) Benefits pursuant to any of Employer's employee benefit
plans shall be payable in accordance with the terms of the instruments
applicable thereto.
(iii) All unvested options held by Employee under the ISO Plan
will automatically terminate (under the terms of the ISO Plan).
(iv) In the event the Term is terminated due to the death of
Employee, PRADE shall have the right, in its sole discretion (under the
terms of the ISO Plan), to purchase from the estate of Employee (within
ninety (90) days of the date on which the Term is terminated), vested
options held by Employee under the ISO plan and/or any shares held by the
estate of Employee as a result of the exercise by Employee (or his estate)
of vested options held by Employee under the ISO Plan. The purchase price
of the options and shares contemplated by this Section 8(a)(iv) shall be
the fair market value of such vested options and/or shares as of the date
on which the Term is terminated (as determined by the PRADE Board in good
faith).
(b) Should the Term be terminated by Employer under Section
7(b)(ii) of this Agreement (for Good Cause):
(i) Employee shall be entitled to receive (within fifteen (15)
days of the date on which the Term is terminated) any and all accrued but
unpaid base salary compensation due to Employee as of the date on which the
Term is terminated.
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(ii) Benefits pursuant to any of Employer's employee benefit
plans shall be payable in accordance with the terms of the instruments
applicable thereto.
(iii) All unvested options held by Employee under the ISO Plan
will automatically terminate (under the terms of the ISO Plan).
(iv) All vested options held by Employee under the ISO Plan that
are not exercised by Employee within ninety (90) days of the date on which
the Term is terminated, will automatically terminate (under the terms of
the ISO Plan).
(c) Should the Term be terminated by Employee under Section 7(c)
of this Agreement:
(i) Employee shall be entitled to receive:
(A) Any and all accrued but unpaid base salary compensation
due to Employee as of the date on which the Term is terminated
(payable within fifteen (15) days of the date on which the Term is
terminated); plus
(B) full base salary (payable monthly at the same time
Employee would otherwise be entitled to receive such base salary if
Employee were still employed by Employer) (y) through November 1, 1998
or (z) for a period of twelve (12) months after the date on which the
Term is terminated, whichever period is longer.
(ii) Benefits pursuant to any of Employer's employee benefit
plans shall be payable in accordance with the terms of the instruments
applicable thereto.
(iii) All unvested options held by Employee under the ISO Plan
will automatically vest as of the date on which the Term is terminated
(under the terms of the ISO Plan).
(iv) Within ninety (90) days of the date on which the Term is
terminated, Employee shall have the option (under the terms of the ISO
Plan) to require PRADE to repurchase (during such ninety (90) day
period) vested options held by Employee under the ISO Plan and/or
shares of PRADE's common stock previously issued pursuant to the
exercise of
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options held by Employee under the ISO Plan. The purchase price of the
options and/or shares contemplated by this Section 8(c)(iv) shall be
the fair market value of such vested options and/or shares as of the
date on which the Term is terminated (as determined by the PRADE Board
in good faith). Notwithstanding the foregoing, the obligation of PRADE
to repurchase the options and/or shares referenced in this Section
8(c)(iv) shall only apply to the extent PRADE has funds legally and
readily available to make such repurchase (with the availability of
the funds being determined by the PRADE Board in good faith).
9. Records. Upon termination of Employee's employment with Employer
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for any reason under this Agreement, Employee shall promptly deliver to Employer
any and all correspondence, mailing lists, drawings, blueprints, manuals,
letters, records, notes, notebooks, reports, flow-charts, programs, proposals,
computer tapes, discs and diskettes which are in Employee's possession or under
his control, and any and all documents concerning or relating to Employer's
business, clients, customers, investors or lenders, or concerning products,
processes or technologies used by Employer which are in Employee's possession or
under his control, and, without limiting the foregoing, shall promptly deliver
to Employer any and all documents or materials which are in Employee's
possession or under his control containing or constituting Confidential
Information.
10. Arbitration. Except with respect to matters involving equitable
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remedies (in which case any such matter may be brought in a court of competent
jurisdiction), all disputes between Employer and Employee hereunder, or
otherwise arising out of the employment or termination of employment of
Employee, shall be settled by arbitration before a three-member panel pursuant
to the rules of the American Arbitration Association, in Washington, D.C. The
award rendered by the arbitrators shall be conclusive and binding upon the
parties hereto. Each party shall pay its own expenses of arbitration and the
expenses of the arbitrators shall be equally shared.
11. Entire Agreement. This Agreement (together with EXHIBIT A and
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EXHIBIT B hereto) supersedes any prior agreement between the parties hereto with
respect to the subject hereof; constitutes the entire agreement between the
parties hereto with respect to the subject hereof; and replaces in its or their
entirety (and stands as a written amendment thereto or termination thereof, as
required) any and all employment or other agreements (whether written or oral)
that
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Employee may have in place with Employer as of the Effective Date. No amendment,
alteration or modification of this Agreement shall be valid unless in each
instance such amendment, alteration or modification is expressed in a written
instrument duly executed in the name of the party or parties making such
amendment, alteration or modification.
12. Severability. The provisions of this Agreement shall be deemed
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severable, and, subject to Section 6(f) of this Agreement, if any part of any
provision is held to be illegal, void, voidable, invalid, nonbinding or
unenforceable in its entirety or partially or as to any party, for any reason,
such provision may be changed, consistent with the intent of the parties hereto,
to the extent reasonably necessary to make the provision, as so changed, legal,
valid, binding and enforceable. If any provision of this Agreement is held to
be illegal, void, voidable, invalid, nonbinding or unenforceable in its entirety
or partially or as to any party, for any reason, and if such provision cannot be
changed consistent with the intent of the parties hereto to make it fully legal,
valid, binding and enforceable, then such provision shall be stricken from this
Agreement, and the remaining provisions of this Agreement shall not in any way
be affected or impaired, but shall remain in full force and effect.
13. Governing Law. This Agreement is to be governed by and
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interpreted under the laws of the Commonwealth of Virginia, without regard to
the conflicts of laws provisions or rules of such State's law.
14. Headings; Form of Words. The headings contained in this
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Agreement have been inserted for the convenience of reference only, and neither
such headings nor the placement of any term hereof under any particular heading
shall in any way restrict or modify any of the terms or provisions hereof.
Terms used in the singular shall be read in the plural, and vice versa, and
terms used in the masculine gender shall be read in the feminine or neuter
gender when the context so requires. The term "person" as used herein refers to
a natural person, a corporation, a limited liability company, a partnership, a
joint venture, or other entity or association, as the context requires.
15. Notices. All notices, requests, consents, payments, demands and
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other communications required or contemplated under this Agreement ("Notices")
shall be in writing and (a) personally delivered, (b) deposited in the United
States mail, registered or certified mail, return receipt requested, with
postage prepaid, or (c) sent by Federal Express or Airborne Courier (for next
business day delivery), shipping prepaid, as follows:
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If to Employer, to:
Pharmaceutical Research Associates, Inc.
0000 Xxx Xxx Xxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx, CEO
If to Employee, to:
Xxxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
or such other persons or address as any party may request by notice given as
aforesaid. Notices shall be deemed given and received at the time of personal
delivery or, if sent by U.S. mail, five (5) business days after the date mailed
in the manner set forth in this Section 15, or, if sent by Federal Express or
Airborne Courier, one business day after such sending.
16. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Successors and Assigns. All the terms and provisions of this
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Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors, assigns, heirs and representatives of the parties
hereto, whether so expressed or not. Neither this Agreement nor any of the
rights and obligations hereunder shall be assigned, delegated, sold,
transferred, sublicensed or otherwise disposed of, by operation of law or
otherwise, without the prior written consent of the other party hereto.
18. Cooperation. Each party to this Agreement agrees to cooperate
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with the other party hereto to carry out the purpose and intent of this
Agreement, including without limitation the execution and delivery to the
appropriate party of all such further documents as may reasonably be required in
order to carry out the terms of this Agreement.
19. Waiver. Any waiver of any provision hereof (or in any related
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document or instrument) shall not be effective unless made expressly and in a
writing executed in the name of the party sought to be charged. The failure of
any party to insist, in any one or more instances, on performance of any of the
terms or conditions of this Agreement shall not be construed as a waiver or
relinquishment of any rights granted hereunder or of the future performance of
any such term, covenant or
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condition, but the obligations of the parties with respect thereto shall
continue in full force and effect.
20. Indemnification. Employee shall be entitled to be indemnified by
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Employer to the fullest extent permitted by the Virginia Stock Corporation Act
notwithstanding any limitations set forth in Employer's Articles of
Incorporation.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
Employer: PHARMACEUTICAL RESEARCH
ASSOCIATES, INC.
By: /s/ Xxxxx Xxxxxx
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Print Name: Xxxxx Xxxxxx
Print Title: President
/s/ Xxxxxxx X. Xxxxxxxx
Employee: -------------------------
XXXXXXX X. XXXXXXXX
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EXHIBIT A
BOARDS OF DIRECTORS ON WHICH EMPLOYEE SERVES AS OF THE DATE OF THIS AGREEMENT
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Vedcorp, L.C.
Virginia Capital, L.P.
Front Royal, Inc.
LTC Americas, Inc.
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EXHIBIT B
KEY TERMS OF ISO PLAN
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Class of Shares: Options will be for shares of PRADE's Common Stock.
Number of Shares: Maximum number of shares issuable under the ISO Plan will
be approximately 323,000.
Exercise Price: $11.683 per share (in cash, or by cash or cashless exercise
on death/disability).
Vesting: 25% of the options under the ISO Plan will vest over a four-
year period from the date of grant (the "Grant Date"), with
the first 25% vesting on the first anniversary of the Grant
Date, and each additional 25% vesting on each successive
anniversary of the Grant Date through the fourth anniversary
thereof.
Notwithstanding the foregoing, 50% of the options under the
ISO Plan will vest automatically upon any extraordinary
event in which any purchaser(s) (whether taken individually
or as a group), under that certain Stock Purchase Agreement,
dated September 13, 1996, by and among PRADE, Employer, and
Carlyle Partners II, L.P. (together with certain Affiliates;
the "Stock Purchase Agreement"), receives an Internal Rate
of Return (as such term is defined in that certain
Stockholders' Agreement attached as Exhibit C to the Stock
Purchase Agreement; "IRR") greater than 25% (to the extent
that exercise of any options under the ISO Plan do not
reduce such IRR below 25%).
In addition to the foregoing, 25% of the options under the
ISO Plan will vest automatically upon any extraordinary
event in which the above stated IRR for any such
Purchaser(s) (whether taken individually or as a group) is
greater than 33%.
Grant of Options: Allocation of the options under the ISO Plan will be
determined by the PRADE Board in consultation with the
Compensation Committee.
Additional: The ISO Plan shall also contain the provisions contemplated
by Section 8 of the Employment
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Agreement, with respect to automatic vesting, rights of
repurchase, etc.
Note: Capitalized terms used herein without definition shall have
the meanings ascribed thereto in the attached Employment
Agreement.
AMENDMENT NO. 1 TO
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT AND NON-COMPETITION AGREEMENT (the
"Amendment") is made as of the 14th day of November 1997 by and between
Pharmaceutical Research Associates, Inc., a Virginia corporation (hereinafter
called "Employer"), and Xxxxxxx X. Xxxxxxxx (hereinafter called "Employee").
WHEREAS, Employer and Employee are parties to that certain Employment and
Non-Competition Agreement dated as of October 16, 1996 (the "Employment
Agreement"; capitalized terms used and not otherwise defined in this Amendment
shall have the respective meanings assigned to them in the Employment
Agreement); and
WHEREAS, the parties hereto have agreed to amend the Employment Agreement
on the terms and conditions contained herein so that the terms of such
Employment Agreement conform to the terms and conditions of that certain Amended
and Restated Option Agreement (the "Option Agreement") by and between Employee
and Employer's parent, PRA International, Inc., a Delaware corporation
("International"), which Option Agreement is being executed concurrently
herewith.
NOW THEREFORE, in consideration of the premises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Amendments to Employment Agreement. From and after the Effective Date
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(as defined in Section 2 hereof), the Employment Agreement is hereby amended by
deleting Sections 8(a)(iv) and 8(c)(iv) in their entirety.
2. Effectiveness of Amendment. This Amendment shall become effective as
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of the consummation on or before January 31, 1998 of an initial public offering
of common stock of International approved by the Public Offering Committee of
the International Board (the "Effective Date") upon the execution and delivery
of this Amendment by each of the parties hereto. In the event such an initial
public offering is not consummated on or before January 31, 1998, this Amendment
shall be null and void. At all times on and after the Effective Date, each
reference in the Employment Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import, shall mean and be a reference to the
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Employment Agreement as amended by this Amendment. Except as, and to the
extent, specifically amended by this Amendment, the Employment Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
3. Execution in Counterparts. This Amendment may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF VIRGINIA (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
5. Headings. Section headings in this Amendment are included herein for
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convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment No. 1
to Employment Agreement as a sealed instrument as of the date first set forth
above.
PHARMACEUTICAL RESEARCH
ASSOCIATES, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
