Exhibit 10.12
EMPLOYMENT AND NON-COMPETITION AGREEMENT
BETWEEN
XXXXXX X. XXXXXXXX, M.D.
AND
INTERNATIONAL MEDICAL TECHNICAL CONSULTANTS, INC.
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 1st day
of April, 1997, by and between International Medical Technical Consultants,
Inc., a Kansas corporation (hereinafter called "Employer"), having its principal
office in the State of Kansas, and Xxxxxx X. Xxxxxxxx, M.D. (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 - IMTCI, 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 April 1,
2000 (the "First Termination Date"), unless sooner terminated pursuant to
Section 8 hereof. After the First Termination Date, employment hereunder may be
renewed, upon the same terms and conditions, for successive periods of one year
each, upon the delivery by either party, at least ninety (90) days prior to the
expiration of the First Termination Date or any successive term, as applicable,
of written notice to the other of a determination to renew such employment, but
only so long as the other party does not elect in a writing delivered to such
party within such 90-day period to refuse such renewal request. 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 8 of this
Agreement. Subject to Section 8(d) of this Agreement, the period during which
(a) Employee is employed under the
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terms of this Agreement and (b) this 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 (other than passive investments in public companies) 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) except as set forth in Exhibit A hereto but only so long as
it does not interfere with Employee's ability to discharge his
responsibilities to Employer hereunder, 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 B
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.
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4. Base Salary, Increases, Benefits, Expenses. For all services
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rendered by Employee under this Agreement and subject to Section 8 below, during
the Term, Employer shall provide Employee with the following:
(a) Commencing on the Effective Date, Employer shall pay to
Employee, in equal bi-monthly installments, a base salary of $175,000 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 1997 Bonus Plan, as
such 1997 Bonus Plan currently exists on the date of this Agreement. Employee's
bonus shall be earned on a monthly basis, but is to be paid annually.
(d) Employee shall receive a car allowance of $600.00 per month.
(e) Employee shall receive a club membership allowance of $100.00
per month.
(f) 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. Such Additional Benefits shall include but not be
limited to those benefits set forth on Exhibit C hereto. It is agreed that the
nature and amount of the Additional Benefits not set forth on Exhibit C, 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
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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.
(g) 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.
(h) 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.
(i) Employee shall be entitled to participate in the 1997
Incentive Stock Option Plan (the "ISO Plan") of PRA International, Inc., a
Delaware corporation and the parent company of Employer ("PRADE").
5. [Intentionally Omitted]
6. 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 PRADE and its subsidiaries and affiliates, including,
without limitation, Employer (collectively, the "Companies") and the markets and
industries in which they operate, 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 the
Companies operate (the "Confidential Information"), which are considered by
Employer and the other Companies 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
the other Companies, and hereby undertakes and agrees that he shall not, at any
time (whether during or after the
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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 or any other
Company, other than as may be permitted to Employee under this Agreement.
Notwithstanding the foregoing, Employee may, without violating this Section
6(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 or another Company 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,
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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 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.
7. Covenant Not to Compete. (a) Except for passive investments in
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public companies, Employee agrees that during the 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 any of the
Companies or any other person whose principal business is (or the principal
business of any of its affiliates is) competitive with any of the Companies or
who proposes to engage in a business competitive with any of the Companies, or
in any department or division of any other person where such department or
division is competitive with any of the Companies (where the nature of each
Company'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 any
of the Companies (where the nature of each Company's business, including the
services provided by such Company, 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 any of the Companies during the Noncompetition Period.
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(c) Employee agrees that he shall not, during the Noncompetition
Period (after the Term), other than on behalf of any of the Companies 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 any of the Companies (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.
(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 any of the Companies for any reason
whatsoever, or hire, any person who (i) was employed by any of the Companies
within one year prior to the time of the act of solicitation or inducement, or
(ii) is employed by any of the Companies at the time of the act of solicitation
or inducement.
(e) During and after the Term, Employee agrees not to disparage
any of the Companies. 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 7 are reasonable and necessary to protect the
legitimate interests of Employer and the other Companies, and that Employee
desires to agree to the provisions of this Section 7. In the event that any of
the provisions of this Section 7 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 7 (the "Other Person"), that, owing to the special, unique and
extraordinary nature of the matters covered by this Section 7, in the event of
any breach or threatened breach by Employee or the Other Person of any of the
provisions hereof, Employer or one or more other Companies 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 or such other Companies
shall be entitled to temporary and/or permanent injunctive relief against him
and any such Other Person, without the necessity of proving actual
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damages or of posting bond to enforce any of the provisions of this Section 7,
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 or such other Companies must prove actual damages,
and that Employer or such other Companies has an adequate remedy at law.
(h) Employee further agrees that the rights and remedies
described in this Section 7 are cumulative and shall be in addition to and not
in lieu of any other rights and remedies otherwise available under this
Agreement, or at law or in equity, including but not limited to monetary
damages.
(i) The provisions of this Section 7 shall inure to the benefit
of and be enforceable by each of the Companies.
8. Termination.
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(a) Basic Termination. In addition to the termination provisions
set forth in Section 8(b) and Section 8(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 9 hereof.
(b) Termination By Employer. The Term may be terminated by
Employer under the following circumstances (in each case, upon such termination,
Employer shall have no further obligation to Employee except as set forth in
Section 9 hereof):
(i) Disability. If during the Term, Employee shall be prevented
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
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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 8(b)(i).
(ii) For Good Cause. Employer may terminate Employee's
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 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 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 8(d) below).
(d) Survival of Sections. It is agreed that notwithstanding
anything contained in this Agreement to the contrary,
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Sections 6, 7, the applicable provisions of Sections 8(b)(ii), 9 and 10 of this
Agreement shall survive termination of the Term.
9. 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 8(a) of this
Agreement (expiration of the Term or the death of Employee), or be terminated by
Employer under Section 8(b)(i) of this Agreement (disability of Employee):
(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 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
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options and shares contemplated by this Section 9(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 8(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.
(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 8(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 February 1, 1999
or (z) for a period of twelve (12) months after the date on which the
Term is terminated, whichever period is longer.
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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 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 options held by Employee under the ISO Plan. The purchase
price of the options and/or shares contemplated by this
Section 9(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 9(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).
10. 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 or
any other Company's business, clients, customers, investors or lenders, or
concerning products, processes or technologies used by Employer or any other
Company 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.
11. 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
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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.
12. 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 agreements regarding employment (whether written or oral)
that 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.
13. Severability. The provisions of this Agreement shall be deemed
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severable, and, subject to Section 7(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.
14. Governing Law. This Agreement is to be governed by and
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interpreted under the laws of the State of Kansas, without regard to the
conflicts of laws provisions or rules of such State's law.
15. 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
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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.
16. 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:
If to Employer, to:
International Medical Technical Consultants, Inc.
c/o PRA International, Inc.
American Center
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: President
If to Employee, to:
Xxxxxx X. Xxxxxxxx, M.D.
0000 Xxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 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 16, or, if sent by Federal Express or
Airborne Courier, one business day after such sending.
17. 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.
18. 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
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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.
19. 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.
20. 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 condition, but the obligations of the parties with
respect thereto shall continue in full force and effect.
21. Indemnification. Employee shall be entitled to be indemnified by
---------------
Employer to the fullest extent permitted by the Kansas Stock Corporation Act
notwithstanding any limitations set forth in Employer's Articles of
Incorporation.
-16-
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
Employer: INTERNATIONAL MEDICAL
TECHNICAL CONSULTANTS, INC.
By: /s/ X.X. Xxxxxxxx
----------------------------------
Print Name: X.X. Xxxxxxxx
Print Title: Executive Vice President
Employee: /s/ Xxxxxx X. Xxxxxxxx, M.D.
----------------------------------
XXXXXX X. XXXXXXXX, M.D.
-17-
Exhibit A
Permitted Outside Activities
----------------------------
Positions Held:
Glaxo Consultant
HMR Consultant
Speakers Bureau:
Zeneca
Xxxxxxx
Schering
Glaxo
HMR
BI
Pfizer
Associated Groups:
Dockhorn Properties, L.L.C.
Xxxxxx X. Xxxxxxxx, M.D., P.A.
Hospital Staff Affiliations:
Columbia Overland Park Regional Medical Center
Shawnee Mission Medical Center
Xxxxxx Medical Center
-18-
Exhibit B
Boards of Directors on Which Employee Serves
--------------------------------------------
as of the Date of this Agreement
--------------------------------
American In-Vitro Allergy/Immunology Society, Board of Directors
American Association of Certified Allergists, Board of Governors
-19-
Exhibit C
Additional Benefits
-------------------
IMTCI pays the fees/licenses of the following medical organizations:
Medical Organization/License Current Fee
---------------------------- -----------
AAAI $340.00
ACAAI $265.00
American Academy of Pharm. $100.00
Physicians
American Academy of Pediatrics $ 55.00
American Medical Association $ 84.00
Kansas Thoracic Society $ 15.00
Kansas State Board of $150.00
Healing Arts (License)
Missouri State Allergy Association $ 58.00
Missouri State Dept. of Health $ 30.00
(License)
KU Medical Alumni Association $ 25.00
Kansas Medical Society $ 84.00
Xxxxxxx County Medical Society $100.00
American Association of Certified $ 75.00
Allergists
DEA (License) $ 70.00
Faculty of Pharmaceutical Medicine $171.75
of the Royal Colleges of Physicians
of the United Kingdom
American In-Vitro $150.00
Allergy/Immunology
IMTCI pays the expenses of attending the following medical meetings:
AAAI
ACAI
ATS
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
International Medical Technical Consultants, Inc., a Kansas corporation
(hereinafter called "Employer"), and Xxxxxx X. Xxxxxxxx, M.D. (hereinafter
called "Employee").
WHEREAS, Employer and Employee are parties to that certain Employment and
Non-Competition Agreement dated as of April 1, 1997 (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
----------------------------------
(as defined in Section 2 hereof), the Employment Agreement is hereby amended by
deleting Sections 9(a)(iv) and 9(c)(iv) in their entirety.
2. Effectiveness of Amendment. This Amendment shall become effective as
--------------------------
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
-2-
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
-------------------------
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 ACCORDANCE WITH THE LAW OF THE STATE OF KANSAS (EXCLUDING THE LAWS APPLICABLE
TO CONFLICTS OR CHOICE OF LAW).
5. Headings. Section headings in this Amendment are included herein for
--------
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.
INTERNATIONAL MEDICAL
TECHNICAL CONSULTANTS, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
XXXXXX X. XXXXXXXX, M.D.
