EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") entered into as of this 4/th/
day of March, 2002, between SFBC International, Inc., a Delaware corporation
(the "Company") and Xxxxx Xxxxx (the "Employee").
WHEREAS, in its business, the Company has acquired and developed certain
trade secrets, including but not limited to proprietary processes, sales methods
and techniques, and other like confidential business and technical information
including but not limited to technical information, design systems, methods of
recruiting subjects, pricing methods, pricing rates or discounts, process,
procedure, formula, design of computer software or improvement of any portion or
phase thereof, whether patented or not, that is of any value whatsoever to the
Company, as well as certain unpatented information relating to the Company's
Services, as defined herein, information concerning proposed new Services,
market feasibility studies, proposed or existing marketing techniques or plans
(whether developed or produced by the Company or by any other entity for the
Company), other Confidential Information, as defined by Section 8, and
information about the Company's employees, officers, and directors, which
necessarily will be communicated to the Employee by reason of his employment by
the Company; and
WHEREAS, the Company has strong and legitimate business interests in
preserving and protecting its investment in the Employee, its trade secrets and
Confidential Information, and its substantial relationships with suppliers, and
Customers, as defined herein, actual and prospective; and
WHEREAS, the Company desires to preserve and protect its legitimate
business interests further by restricting competitive activities of the Employee
during the term of employment and following (for a reasonable time) termination
of employment; and
WHEREAS, the Company initially retained the services of the Employee to
provide assistance to the Company's Chief Executive Officer in finalizing the
Company's financial statements for the fiscal quarter ending on December 31,
2001, and to perform such other duties as the Company's Chief Executive Officer
requested.
WHEREAS, the Company now desires to employ the Employee and to ensure the
continued availability to the Company of the Employee's services, and the
Employee is willing to accept such employment and render such services, all upon
and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth in this Agreement, and intending to be legally bound, the Company and
the Employee agree as follows:
1. Representations and Warranties. The Employee hereby represents and
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warrants to the Company that he (i) is not subject to any written
nonsolicitation or noncompetition agreement affecting his employment with the
Company (other than any prior agreement with the Company or any Affiliate), (ii)
is not subject to any written confidentiality or nonuse/nondisclosure agreement
affecting his employment with the Company (other than any prior agreement with
the Company or or any Affiliate), and (iii) has brought to the Company no trade
secrets, confidential business information, documents, or other personal
property of a prior employer.
2. Term of Employment.
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(a) Term. The Company hereby employs the Employee, and the Employee
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hereby accepts employment with the Company for a period commencing on the
announcement date of the results of the Company's operations for the fiscal
quarter ending December 31, 2001 and ending three years from the date of said
announcement date (the "Term") subject to Section 6, automatically renewable for
additional one year terms unless either party gives the other at least 90 days
written notice.
(b) Continuing Effect. Notwithstanding any termination of employment,
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at the end of the term or otherwise, the provisions of Sections 7 and 8 shall
remain in full force and effect and the provisions of Section 8 shall be binding
upon the legal representatives, successors and assigns of the Employee.
3. Duties.
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(a) General Duties. The Employee shall serve as Vice President of
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Finance and Chief Financial Officer of the Company, with duties and
responsibilities that are customary for such position. The Employee shall report
directly to the Company's Chief Executive Officer or as otherwise directed by
the board of directors. The Employee shall use his best efforts to perform his
duties and discharge his responsibilities pursuant to this Agreement
competently, carefully and faithfully.
(b) Devotion of Time. The Employee shall devote all of his time,
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attention and energies during normal business hours (exclusive of periods of
sickness and disability and of such normal holiday and vacation periods as have
been established by the Company) to the affairs of the Company. The Employee
shall not enter the employ of or serve as a consultant to, or in any way perform
any services with or without compensation to, any other persons, business or
organization without the prior consent of the board of directors of the Company.
(c) Location of Office. The Employee's principal business office shall
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be at the Company's Miami, Florida office. However, the Employee's job
responsibilities shall include all business travel necessary to the performance
of his job.
(d) Adherence to Inside Information Policies. The Employee
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acknowledges that the Company is publicly-held and, as a result, has implemented
inside information policies designed to preclude its employees and those of its
subsidiaries from violating the federal securities laws by trading on material,
non-public information or passing such information on to others in breach of any
duty owed to the Company or any third party. The Employee shall promptly
execute any agreements generally distributed by the Company to its employees
requiring such employees to abide by its inside information policies.
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4. Compensation and Expenses.
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(a) Salary. For the services of the Employee to be rendered under this
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Agreement, the Company shall pay the Employee an annual salary of $170,000
during the Term, payable in accordance with the Company's normal payroll
practices.
(b) Expenses. In addition to any compensation received pursuant to
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Section 4(a) the Company shall reimburse or advance funds to the Employee for
all reasonable travel, entertainment and miscellaneous expenses incurred in
connection with the performance of his duties under this Agreement.
(c) Automobile. The Company shall pay the Employee a monthly
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automobile allowance of $600 per month.
(d) Professional Dues. The Company shall reimburse the Employee for
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reasonable costs of professional licenses and dues related to his employment.
5. Benefits. Except for accrued vacation under Section 5(a), and the
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benefits described under Section 5(c), no other benefits are available during
the first 90 days of this Agreement.
(a) Vacation. The Employee shall be entitled to 15 days of vacation
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per year without loss of compensation or other benefits to which he is entitled
under this Agreement, to be taken at such times as the Employee may select and
the affairs of the Company may permit.
(b) Employee Benefit Programs. The Employee is entitled to participate
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in any pension, 401(k), insurance or other employee benefit plan that is
maintained by the Company for its employees, including programs of life and
medical insurance and reimbursement of membership fees in professional
organizations.
(c) Insurance. The Company shall pay the premiums on the Company's
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medical insurance policy covering the Employee and on the Employee's $1,000,000
term life insurance policy. Also, the Company shall pay up to an amount of
$7,500 per year for the Employee's uninsured medical expenses.
6. Termination.
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(a) General Provisions. Upon the Employee's termination from his
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employment, the Employee shall have no right to compensation or reimbursement
under Section 4 or to participate in any employee benefit programs under Section
5, except as provided for by law for any period subsequent to the effective date
of termination. On or before the termination of his employment or prior to
receiving any final compensation or expenses due him, the Employee shall (a)
return to the Company's principal executive offices, (b) participate in an exit
interview, and (c) execute a Certificate of Conclusion of Employment, certifying
that he has complied with his obligations and acknowledging his continuing
obligations under this Agreement. The Employee's failure to comply with the
requirements of Section 6 of this Agreement shall constitute a material breach
of this Agreement.
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(b) Termination for Cause. The Company may terminate the Employee's
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employment pursuant to the terms of this Agreement at any time for Cause (as
defined below) by giving written notice of termination. Such termination shall
become effective upon the giving of such notice. Upon any such termination for
Cause, the Employee shall have no right to compensation, or reimbursement under
Section 4, or to participate in any Employee benefit programs under Section 5,
except as provided by law, for any period subsequent to the effective date of
termination. For purposes of this Section 6(b), "Cause" shall mean: (i) the
Employee is convicted of a felony which is related to the Employee's employment
or the business of the Company; (ii) the Employee, in carrying out his duties
hereunder, has been found in a civil action to have committed gross negligence
or intentional misconduct resulting, in either case, in material harm to the
Company; (iii) the Employee has been found in a civil action to have materially
breached any provision of Section 6 or Section 7 and to have caused material
harm to the Company; or (iv) the Employee on more than one occasion fails to
comply with the directives of the Company's board of directors. The term "found
in a civil action" shall not apply until all appeals permissible under the
applicable rules of procedure or statutes have been determined and no further
appeals are permissible.
(c) Special Termination. In the event that (i) the Employee, with or
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without change in title or formal corporate action, shall no longer exercise all
of the duties and responsibilities and shall no longer possess substantially all
the authority set forth in Section 3; (ii) the Company materially breaches this
Agreement or the performance of its duties and obligations hereunder; or (iii)
any entity or person not now an executive officer or director of the Company
becomes either individually or as part of a group the beneficial owner of 30% or
more of the Company's common stock, the Employee, by written notice to the
Company, may elect to deem the Employee's employment hereunder to have been
terminated by the Company without cause, in which event the Employee shall be
entitled at the time of termination to compensation equal to an amount of one
years Base Salary under this Agreement and benefits payable pursuant to Section
5 herein for such one-year period and all of Employee's remaining unvested
options, if any, shall vest immediately upon such termination.
7. Non-Competition Agreement.
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(a) Competition with the Company. Until termination of his employment and
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for a period of 12 months commencing on the date of termination, the Employee,
directly or indirectly or, in association with or as a stockholder, director,
officer, consultant, employee, partner, joint venturer, member or otherwise of
or through any person, firm, corporation, partnership, association or other
entity ("any of the foregoing defined as an "Affiliated Entity") shall not
compete with the Company or its Affiliates, within any metropolitan area in the
United States or elsewhere in which the Company or its subsidiaries
(collectively, the "Affiliates") is then engaged in the offer and sale of
competitive Services. Provided, however, the foregoing provisions shall not
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prevent the Employee acting as a chief financial officer or from accepting
employment with an enterprise engaged in two or more lines of business, one of
which is the same or similar to the Company's business (the "Prohibited
Business") if the Employee's employment is totally unrelated to the Prohibited
Business; provided, further, the foregoing shall not prohibit Employee from
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owning up to 5% of the securities of any publicly-traded enterprise provided the
Employee is not an employee, director, officer, consultant to such enterprise or
otherwise reimbursed for services rendered to such enterprise. In addition, the
Employee may not, directly or indirectly including through any Affiliated
Entity, obtain employment with or perform
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services for any Customer, as defined, of the Company during the period
commencing on the date of termination and continuing for 12 months thereafter.
(b) Solicitation of Customers. During the periods in which the
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provisions of Section 7(a) shall be in effect, the Employee, directly or
indirectly including through any Affiliated Entity, shall not seek Prohibited
Business from any Customer (as defined below) on behalf of any enterprise or
business other than the Company, refer Prohibited Business from any Customer to
any enterprise or business other than the Company or receive commissions based
on sales or otherwise relating to the Prohibited Business from any Customer, or
any enterprise or business other than the Company . For purposes of this
Agreement, the term "Customer" means any person, firm, corporation, partnership,
association or other entity to which the Company sold or provided goods or
services during the 24-month period prior to the time at which any determination
is required to be made as to whether any such person, firm, corporation,
partnership, association or other entity is a Customer, or who or which has
approached by or who or which has approached an employee of the Company for the
purpose of soliciting business from the Company or the third party, as the case
may be.
(c) Solicitation of Employees. During the periods in which the
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provisions of Section 7(a) shall be in effect, the Employee, directly or
indirectly including through any Affiliated Entity shall not solicit, hire or
contact any employee of the Company for the purpose of hiring them or causing
them to terminate their employment relationship with the Company .
(d) No Payment. The Employee acknowledges and agrees that no separate
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or additional payment will be required to be made to him in consideration of his
undertakings in this Section.
(e) References to the Company in this Section 7 shall include the
Company's Affiliates.
8. Non-Disclosure of Confidential Information.
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(a) Confidential Information. Confidential Information includes, but
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is not limited to, trade secrets as defined by the common law and statute in
Florida or any future Florida statute, processes, policies, procedures,
techniques including recruiting techniques, designs, drawings, know-how, show-
how, technical information, specifications, computer software and source code,
information and data relating to the development, research, testing, costs,
marketing and uses of the Services (as defined herein), the Company's budgets
and strategic plans, and the identity and special needs of Customers, databases,
data, all technology relating to the Company's businesses, systems, methods of
operation, client or Customer lists, Customer information, solicitation leads,
marketing and advertising materials, methods and manuals and forms, all of which
pertain to the activities or operations of the Company, names, home addresses
and all telephone numbers and e-mail addresses of the Company's employees,
former employees, clients and former clients. In addition, Confidential
Information also includes the identity of Customers and the identity of and
telephone numbers, e-mail addresses and other addresses of employees or agents
of Customers who are the persons with whom the Company's employees and agents
communicate in the ordinary course of business. For purposes of this Agreement,
the following will not constitute Confidential Information (i) information which
is or subsequently becomes generally available to the public through no act of
the Employee, (ii) information set forth in the written records of the Employee
prior to disclosure to the Employee by or on behalf of the Company which
information is given to the Company in writing as of or prior to the date of
this Agreement, and (iii) information which is
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lawfully obtained by the Employee in writing from a third party (excluding any
Affiliates of the Employee) who did not acquire such confidential information or
trade secret, directly or indirectly, from the Employee or the Company. As used
herein, the term "Services" shall include all clinical or pre-clinical research,
testing, protocol design, data management, medical writing, clinical or
analytical laboratory services or other services relating to proposed or actual
formulations, foods, drugs and medical devices engaged in by the Company during
the Term of the Employee's employment.
(b) Legitimate Business Interests. The Employee recognizes that the
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Company has legitimate business interests to protect and as a consequence, the
Employee agrees to the restrictions contained in this Agreement because they
further the Company's legitimate business interests. These legitimate business
interests include, but are not limited to (i) trade secrets; (ii) valuable
confidential business or professional information that otherwise does not
qualify as trade secrets including all Confidential Information; (iii)
substantial relationships with specific prospective or existing Customers or
clients; (iv) Customer or client goodwill associated with the Company's
business; and (v) specialized training relating to the Company's Services,
technology, methods and procedures.
(c) Confidentiality. For a period of two years following termination
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of employment, or as otherwise required by client privilege, the Confidential
Information shall be held by the Employee in the strictest confidence and shall
not, without the prior written consent of the Company, be disclosed to any
person other than in connection with the Employee's employment by the Company.
The Employee further acknowledges that such Confidential Information as is
acquired and used by the Company is a special, valuable and unique asset. The
Employee shall exercise all due and diligence precautions to protect the
integrity of the Company's Confidential Information and to keep it confidential
whether it is in written form, on electronic media or oral. The Employee shall
not copy any Confidential Information except to the extent necessary to his
employment nor remove any Confidential Information or copies thereof from the
Company's premises except to the extent necessary to his employment and then
only with the authorization of an officer of the Company. All records, files,
materials and other Confidential Information obtained by the Employee in the
course of his employment with the Company are confidential and proprietary and
shall remain the exclusive property of the Company or its Customers, as the case
may be. The Employee shall not, except in connection with and as required by
his performance of his duties under this Agreement, for any reason use for his
own benefit or the benefit of any person or entity with which he may be
associated or disclose any such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
without the prior written consent of an officer of the Company (excluding the
Employee, if applicable).
(d) References to the Company in this Section 8 shall include the
Company's Affiliates.
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9. Equitable Relief.
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(a) The Company and the Employee recognize that the services to be
rendered under this Agreement by the Employee are special, unique and of
extraordinary character, and that in the event of the breach by the Employee of
the terms and conditions of this Agreement or if the Employee, shall cease to be
an employee of the Company for any reason and take any action in violation of
Section 7 and/or Section 8, the Company shall be entitled to institute and
prosecute proceedings in any court of competent jurisdiction referred to in
Section 9(b) below, to enjoin the Employee from breaching the provisions of
Section 7 or Section 8. In such action, the Company shall not be required to
plead or prove irreparable harm or lack of an adequate remedy at law or post a
bond or any security.
(b) Any action must be commenced in Miami-Dade County, Florida. The
Employee and the Company irrevocably and unconditionally submit to the exclusive
jurisdiction of such courts and agree to take any and all future action
necessary to submit to the jurisdiction of such courts. The Employee and the
Company irrevocably waive any objection that they now have or hereafter
irrevocably waive any objection that they now have or hereafter may have to the
laying of venue of any suit, action or proceeding brought in any such court and
further irrevocably waive any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Final
judgment against the Employee or the Company in any such suit shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment, a
certified or true copy of which shall be conclusive evidence of the fact and the
amount of any liability of the Employee or the Company therein described, or by
appropriate proceedings under any applicable treaty or otherwise.
10. Conflicts of Interest. While employed by the Company, the Employee
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shall not, directly or indirectly, unless approved in writing by the President:
(a) participate as an individual in any way in the benefits of
transactions with any of the Company's suppliers or Customers, including,
without limitation, having a financial interest in the Company's suppliers or
Customers, or making loans to, or receiving loans, from, the Company's suppliers
or Customers;
(b) realize a personal gain or advantage from a transaction in which
the Company has an interest or use information obtained in connection with the
Employee's employment with the Company for the Employee's personal advantage or
gain; or
(c) accept any offer to serve as an officer, director, partner,
consultant, manager with, or to be employed in a technical capacity by, a person
or entity which does business with the Company.
(d) As used in Section 10(a), (b) or (c), the Company also includes
its Affiliates.
11. Inventions, Ideas, Processes, and Designs. All inventions, ideas,
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processes, programs, software, and designs (including all improvements) (i)
conceived or made by the Employee during the course of his employment with the
Company (whether or not actually conceived during regular business hours) and
for a period of six months subsequent to the termination or expiration of such
employment with the Company and (ii) related to the business of the Company,
shall be disclosed in writing promptly to the Company and shall be the sole and
exclusive property of the Company. An invention, idea,
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process, program, software, or design including an improvement) shall be deemed
related to the business of the Company if (a) it was made with the Company's
equipment, supplies, facilities, or Confidential Information, (b) results from
work performed by the Employee for the Company, or (c) pertains to the current
business or demonstrably anticipated research or development work of the
Company. The Employee shall cooperate with the Company and its attorneys in the
preparation of patent and copyright applications for such developments and, upon
request, shall promptly assign all such inventions, ideas, processes, and
designs to the Company. The decision to file for patent or copyright protection
or to maintain such development as a trade secret shall be in the sole
discretion of the Company, and the Employee shall be bound by such decision. The
Employee shall provide as a schedule to this Agreement, a complete list of all
inventions, ideas, processes, and designs, if any, patented or unpatented,
copyrighted or non-copyrighted, including a brief description, which he made or
conceived prior to his employment with the Company and which therefore are
excluded from the scope of this Agreement.
12. Indebtedness. If, during the course of the Employee's employment under
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this Agreement, the Employee becomes indebted to the Company for any reason, the
Company may, if it so elects, set off any sum due to the Company from the
Employee and collect any remaining balance from the Employee.
13. Assignability. The rights and obligations of the Company under this
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Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assign shall acquire all
or substantially all of the securities (via merger or otherwise) or assets and
business of the Company. The Employee's obligations hereunder may not be
assigned or alienated and any attempt to do so by the Employee will be void.
14. Severability.
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(a) The Employee expressly agrees that the character, duration and
geographical scope of the non-competition provisions set forth in this Agreement
are reasonable in light of the circumstances as they exist on the date hereof.
Should a decision, however, be made at a later date by a court of competent
jurisdiction that the character, duration or geographical scope of such
provisions is unreasonable, then it is the intention and the agreement of the
Employee and the Company that this Agreement shall be construed by the court in
such a manner as to impose only those restrictions on the Employee's conduct
that are reasonable in the light of the circumstances and as are necessary to
assure to the Company the benefits of this Agreement. If, in any judicial
proceeding, a court shall refuse to enforce all of the separate covenants deemed
included herein because taken together they are more extensive than necessary to
assure to the Company the intended benefits of this Agreement, it is expressly
understood and agreed by the parties hereto that the provisions of this
Agreement that, if eliminated, would permit the remaining separate provisions to
be enforced in such proceeding shall be deemed eliminated, for the purposes of
such proceeding, from this Agreement.
(b) If any provision of this Agreement otherwise is deemed to be
invalid or unenforceable or is prohibited by the laws of the state or
jurisdiction where it is to be performed, this Agreement shall be considered
divisible as to such provision and such provision shall be inoperative in such
state or jurisdiction and shall not be part of the consideration moving from
either of the parties to the other. The remaining provisions of this Agreement
shall be valid and binding and of like effect as though such provision were not
included.
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15. Notices and Addresses. All notices, offers, acceptance and any other
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acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
To the Company: SFBC International, Inc.
00000 Xxxxxxxx Xxxx.
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxx
Chief Executive Officer
With a Copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx, LLP
0000 Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile (000) 000-0000
To the Employee: Xxxxx Xxxxx
SFBC International, Inc.
00000 Xxxxxxxx Xxxx.
Xxxxx, XX 00000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be evidence of successful facsimile delivery. Time
shall be counted to, or from, as the case may be, the delivery in person or by
mailing.
16. Counterparts. This Agreement may be executed in one or more
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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. The execution of this
Agreement may be by actual or facsimile signature.
17. Attorney's Fees. In the event that there is any controversy or claim
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arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding is commenced to enforce the
provisions of this Agreement, the prevailing party shall be entitled to a
reasonable attorney's fee, costs and expenses.
18. Governing Law. This Agreement and any dispute, disagreement, or issue
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of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
19. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
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terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
20. Additional Documents. The parties hereto shall execute such additional
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instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
21. Section and Paragraph Headings. The section and paragraph headings in
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this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the date and year first above written.
SFBC INTERNATIONAL, INC.
____________________ By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Chief Executive Officer
EMPLOYEE:
____________________ By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
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