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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") made effective as of
December 31, 2000 by and between Celeris Corporation (the "Company"), and Xxxxxx
X. Xxxxxx (the "Senior Manager").
In consideration of the mutual covenants contained in this Agreement,
the parties hereby agree as follows:
SECTION I
EMPLOYMENT
The Company agrees to employ the Senior Manager and the Senior Manager
agrees to be employed by the Company for the Period of Employment as provided in
Section III. A. below upon the terms and conditions provided in the Agreement.
SECTION II
POSITION AND RESPONSIBILITIES
During the Period of Employment, the Senior Manager agrees to serve as
Vice President of the Company and to be responsible for the typical management
responsibilities expected of a senior manager holding such positions and such
other responsibilities as may be assigned to Senior Manager from time to time by
the President/CEO of the Company.
SECTION III
TERMS AND DUTIES
A. Period of Employment.
The period of Senior Manager's employment under this Agreement will
commence as of December 31, 2000, and shall continue for a period of three (3)
years through December 31,2003, subject to extension or termination as provided
in this Agreement ("Period of Employment").
B. Duties.
During the Period of Employment, the Senior Manager shall devote most
of his business time, attention and skill to the business and affairs of the
Company and its subsidiaries. The Company agrees to grant the Senior Manager
some time away from his business duties for reasonable outside activities
typically consistent with this type position. The Senior Manager will perform
faithfully the duties which may be assigned to him from time to time by the
Company.
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SECTION IV
COMPENSATION AND BENEFITS
A. Compensation.
For all services rendered by the Senior Manager in any
capacity during the Period of Employment, the Senior Manager shall be
compensated as follows:
1. Base Salary.
The Company shall pay the Senior Manager an annual
base salary ("Base Salary") as follows: One hundred Eighty Thousand Two Hundred
Sixty-three ($180,263.00) Dollars.
Base Salary shall be payable in equal installments
according to the customary payroll practices of the Company but in no event less
frequently than once each month. The Base Salary shall be reviewed each fiscal
period and shall be subject to adjustment according to the policies and
practices adopted by the Company from time to time.
B. Annual Incentive Award.
The Senior Manager may be eligible for annual incentive
compensation awards ("Incentive Compensation Awards") in an amount to be
determined solely at the discretion of the Board of Directors commensurate with
the performance of Celeris, performance of the Senior Manager and mutually
agreed upon goals and objectives.
C. Additional Benefits.
The Senior Manager will be eligible to participate in all
employee benefit plans or programs and receive all benefits and perquisites for
which any salaried employees are eligible under any existing or future plan or
program established by the Company for salaried employees. The Senior Manager
will participate to the extent permissible under the terms and provisions of
such plans or programs in accordance with program provisions. Nothing in this
Agreement will preclude the Company from amending or terminating any of the
plans or programs applicable to salaried or Senior Managers as long as such
amendment or termination is applicable to all salaried employees or Senior
Managers.
SECTION V
BUSINESS EXPENSES
The Company will reimburse the Senior Manager for all reasonable travel
and other expenses incurred by the Senior Manager in connection with the
performance of his duties and obligations under this Agreement.
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SECTION VI
DISABILITY
A. In the event of disability of the Senior Manager during the
Period of Employment, the Company will pay the Senior Manager according to the
provisions of the Company's short and long term disability programs. However, in
the event the Senior Manager is disabled for a continuous period of six (6)
months after the Senior Manager first becomes disabled, the Company may
terminate the employment of the Senior Manager. In this case, normal
compensation will cease, except for earned but unpaid Base Salary and Incentive
Compensation Awards which would be payable on a pro-rated basis for the year in
which the disability occurred.
B. During the period the Senior Manager is receiving payments of
either regular compensation or disability insurance described in this Agreement
and as long as he is physically and mentally able to do so, the Senior Manager
will furnish information and assistance to the Company and from time to time
will make himself available to the Company to undertake assignments consistent
with his prior position with the Company and his physical and mental health. If
the Company fails to make a payment or provide a benefit required as part of the
Agreement, the Senior Manager's obligation to fulfill information and assistance
will end.
C. The term "disability" will have the same meaning as under any
disability insurance provided pursuant to this Agreement.
SECTION VII
EFFECT OF TERMINATION OF EMPLOYMENT
A. The President/CEO may at any time upon sixty (60) days prior
notice terminate Senior Manager's employment without cause (as "Cause" is
defined below) by giving Senior Manager notice of the effective date of
termination. In the event Senior Manager's employment is terminated without
cause, during the time frame of the agreement, the Company's sole obligation to
Senior Manager shall be (i) to pay Senior Manager a severance payment of one
times his base salary, paid out in equal installments over a period of twelve
(12) months plus any earned but unpaid bonus, which shall be paid as an
immediate lump sum. Further, this Agreement shall be terminable by the Company
in the event of the death or disability of the Senior Manager prior to the
expiration hereof.
B. If the Senior Manager's employment terminates due to a
Termination for Cause, death or disability, earned but unpaid Base Salary and
earned but unused PTO will be paid on a pro-rated basis for the year in which
the termination occurs. No other payments will be made or benefits provided by
the Company. No notice is required for a Termination for Cause.
C. For this Agreement, the following terms have the following
meanings:
1. "Termination for Cause" means termination of the
Senior Manager's employment by the Company's President/CEO acting in good faith
by written notice to the Senior Manager specifying the event relied upon for
such termination, and which is due to the Senior Manager's serious, willful
misconduct with respect to his duties under this Agreement, including
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but not limited to conviction for a felony, fraud, misappropriation or
embezzlement in connection with the Company's business, insubordination, neglect
of duties, repeated failure to meet stated goals, or conviction of a misdemeanor
involving moral turpitude or perpetration of a common law fraud, in each case
which has resulted or is likely to result in economic damage or public
embarrassment to the Company.
2. "Without Cause Termination" means termination of the
Senior Manager's employment by the Company (a) other than due to death,
disability, Termination for Cause or pursuant to Section X; or (b) upon
expiration of the Period of Employment as a result of the giving of notice by
the Company of its intent not to extend the Period of Employment as provided in
Section III. A.
SECTION VIII
OTHER DUTIES OF THE SENIOR MANAGER DURING
AND AFTER THE PERIOD OF EMPLOYMENT
A. The Senior Manager will, with reasonable notice during or
after the Period of Employment, furnish information as may be in his possession
and cooperate with the Company as may reasonably be requested in connection with
any claims or legal actions in which the Company is or may become a party.
B. The Senior Manager recognizes and acknowledges that all
information pertaining to the affairs, business, clients, customers or other
relationships of the Company, as hereinafter defined, is confidential and is a
unique and valuable asset of the Company. Access to and knowledge of this
information are essential to the performance of the Senior Manager's duties
under this Agreement. The Senior Manager will not during the Period of
Employment or after except to the extent reasonably necessary in performance of
the duties under this Agreement, give to any person, firm, association,
corporation or governmental agency any information concerning the affairs,
business, clients, customers or other relationships of the Company, except as
required by law. The Senior Manager will not make use of this type of
information for his own purposes or for the benefit of any person or
organization other than the Company. The Senior Manager will also use his best
efforts to prevent the disclosure of this information by others. All records,
memoranda, etc. relating to the business of the Company, whether made by the
Senior Manager or otherwise coming into his possession, are confidential and
will remain the property of the Company.
C. During the Period of Employment and for a twelve (12) month
period thereafter, the Senior Manager will not use his status with the Company
to obtain loans, goods or services from another organization on terms that would
not be available to him in the absence of his relationship to the Company.
During the Period of Employment and for a twelve (12) month period following
termination of the Period of Employment, other than termination due to a Without
Cause Termination, (i) the Senior Manager will not make any statements or
perform any acts intended to advance the interest of any existing or prospective
competitors of the Company in any way that will injure the interest of the
Company; (ii) the Senior Manager, without prior express written approval by the
President/CEO of the Company, will not directly or indirectly own or hold any
proprietary interest in or be employed by or assist, or receive compensation
from any party engaged in the clinical research business in the same
geographical areas where
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the Company has clients, or those clients do business, or the Company maintains
an office including both national and international operations; and (iii) the
Senior Manager, without express prior written approval from the President/CEO,
will not solicit any members of the then current clients of the Company or
discuss with any employee of the Company information or operation of any
business intended to compete with the Company. For the purposes of the
Agreement, proprietary interest means legal or equitable ownership, whether
through stock holdings or otherwise, of a debt or equity interest (including
options, warrants, rights and convertible interests) in a business firm or
entity, or ownership of more than 1% of any class of equity interest in a
publicly-held company. The Senior Manager acknowledges that the covenants
contained herein are reasonable as to geographic and temporal scope. For a
twelve (12) month period after termination of the Period of Employment for any
reason, the Senior Manager will not directly or indirectly hire any employee of
the Company or solicit or encourage any such employee to leave the employ of the
Company.
D. The Senior Manager acknowledges that his breach or threatened
or attempted breach of any provision of Section VIII would cause irreparable
harm to the Company not compensable in monetary damages and that the Company
shall be entitled, in addition to all other applicable remedies, to a temporary
and permanent injunction and a decree for specific performance of the terms of
Section VIII without being required to prove damages or furnish any bond or
other security.
E. The Senior Manager shall not be bound by the provisions of
Section VIII in the event of the default by the Company in its obligations under
this Agreement which are to be performed upon or after termination of this
Agreement.
F. Any reference in this Section VIII shall expressly be deemed
also to refer to the Company's subsidiaries.
SECTION IX
INDEMNIFICATION, LITIGATION
The Company will indemnify the Senior Manager to the fullest extent
permitted by the laws of the state of incorporation in effect at that time, or
certificate of incorporation and by-laws of the Company whichever affords the
greater protection to the Senior Manager. The Senior Manager will be entitled to
any insurance proceeds related to any award, or any fees or expenses incurred in
connection with any action, suit or proceeding to which he may be made a party
by reason of being a director or officer of the Company.
SECTION X
CHANGE IN CONTROL
A. The Senior Manager shall be eligible for the following
benefits if, during the Period of Employment there has been a Change in Control
and during the one-year period commencing on the Change in Control Date, the
Senior Manager has a Termination of Employment initiated (i) by the Company in a
Without Cause Termination or (ii) by the Senior Manager for Good Reason:
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(1) Cash Payment. the Senior Manager shall be entitled to
receive an amount of cash equal to one (1) year of the Senior Manager's Base
Salary in effect on the Change in Control Date. The payment shall be made in a
single lump sum upon the Senior Manager's Termination of Employment unless the
Senior Manager shall have elected another method on the signature page hereof.
(2) Long-Term Incentive Award: Equity-Based Compensation.
To the extent not already vested, any and all options, phantom units, restricted
stock and other awards or incentives granted to Senior Manager pursuant to any
such plan to purchase Company stock or which is measured by the current market
value of Company stock shall fully and immediately vest.
(3) Continuation of Benefits. To the extent legally
permitted, for a period of one (1) year following the Termination of Employment,
the Senior Manager shall be treated as if he or she had continued to be an
employee for all purposes under the Company's medical and dental plans, and,
following this period, the Senior Manager shall be entitled to receive
continuation coverage under Part 6 of Title I of ERISA ("COBRA" Benefits)
treating the end of this period as a termination of the Senior Manager's
employment (other than for gross misconduct). To the extent the foregoing is not
legally permitted, the Company shall pay to Senior Executive a lump sum in an
amount reasonably believed by it to permit Senior Manager to obtain similar
benefits pursuant to one or more private policies or plans.
B. A "Change in Control" shall be deemed to have occurred if
(i) any person, corporation, or other entity or group, including any "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, other than
any employee benefit plan then maintained by the Company, becomes the beneficial
owner of shares of the Company having 30 percent or more of the total number of
votes that may be cast for the election of Directors of the Company; (ii) as the
result of, or in connection with, any contested election that the Board of
Directors of the Company, or any tender or exchange offer, merger or other
business combination or sale of assets, or any combination of the foregoing (a
"Transaction"), the persons who were Directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors of
the Company or any successor to the Company or its assets, or (iii) at any time
(a) the Company shall consolidate or merge with any other Person and the Company
shall not be the continuing or surviving corporation, (b) any Person shall
consolidate or merge with the Company and the Company shall be the continuing or
surviving corporation and in connection therewith, all or part of the
outstanding Company stock shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other property, (c) the Company
shall be a party to a statutory share exchange with any other Person after which
the Company is a subsidiary of any other Person, or (d) the Company shall sell
or otherwise transfer fifty percent (50%) or more of the assets or earning power
of the Company and its subsidiaries (taken as a whole) to any Person or Persons,
or (e) the Company shall sell at least eighty percent (80%) of the capital stock
of the Company to a Person other than the Company or any direct or indirect
affiliate thereof, such that, after such sale, such person owns at least eighty
percent (80%)of such stock and neither the Company nor any affiliate thereof
directly or indirectly owns more than twenty percent (20%) of the capital stock
or other securities of the Company; provided, however, that a "Change of
Control" shall not occur as a result of any public offering or series of public
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offerings of the capital stock of the Company or any distribution, spin-off
other transfer to the Company's shareholders of the capital stock of the
Company.
C. The "Change in Control Date" shall mean the date immediately
prior to the effectiveness of the Change in Control.
D. The Senior Manager shall have "Good Reason" to terminate
employment within one (1) year of Change in Control if, without Senior Manager's
consent: (i) the Senior Manager's duties, responsibilities or authority are
materially reduced or diminished from those in effect on the Change in Control
Date: (ii) the Senior Manager's compensation or benefits are reduced by more
than five percent (5%) in the aggregate of those amounts in effect on the Change
in Control Date; (iii) the Company reduces by more than ten percent (10%) the
potential earnings of the Senior Manager under any performance based bonus or
incentive plan of the Company in effect on the Change in Control Date; (iv) the
Company requires that the Senior Manager's employment be based at a location
other than the location at the Change in Control Date; (v) any purchaser,
assign, surviving corporation, or successor of the Company or its business or
assets (whether by acquisition, merger, liquidation, consolidation,
reorganization, sale or transfer of assets or business, or otherwise) fails or
refuses to expressly assume in writing this Agreement and all of the duties and
obligations of the Company hereunder pursuant to Section XIII hereof; or (vii)
the Company breaches any of the provisions of this Agreement and such breach
continues for a period of thirty (30) days following written notice thereof by
Senior Manager.
SECTION XI
WITHHOLDING TAXES
The Company may directly or indirectly withhold from any payments under
this Agreement all federal, state, city or other taxes that shall be required
pursuant to any law or governmental regulation.
SECTION XII
EFFECTIVE PRIOR AGREEMENTS
This Agreement contains the entire understanding between the Company
and the Senior Manager with respect to the subject matter and supersedes any
prior employment or severance agreements between the Company and its affiliates,
and the Senior Manager. Senior Manager agrees that he is not entitled to any
further compensation, bonus, severance payments, options, or anything of value
from Celeris Corporation or any affiliate or other employer as a result of any
employment or severance agreement or otherwise.
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SECTION XIII
CONSOLIDATION, MERGER OR SALE OF ASSETS
Nothing in this Agreement shall preclude the Company from consolidating
or merging into or with, or transferring all or substantially all of its assets
to, another corporation which assumes this Agreement and all obligations and
undertakings of the Company hereunder. Upon such a Consolidation, Merger or Sale
of Assets, the term "the Company" as used will mean the other corporation and
this Agreement shall continue in full force and effect. This Section XIII is not
intended to modify or limit the rights of the Senior Manager hereunder,
including without limitation, the rights of Senior Manager under Section X.
SECTION XIV
MODIFICATION
This Agreement may not be modified or amended except in writing signed
by the parties. No term or condition of this Agreement will be deemed to have
been waived, except in writing by the party charged with waiver. A waiver shall
operate only as to the specific term or condition waived and will not constitute
a waiver for the future or act on anything other than that which is specifically
waived.
SECTION XV
GOVERNING LAW; ARBITRATION
This Agreement has been executed and delivered in the State of
Tennessee and its validity, interpretation, performance and enforcement shall be
governed by the laws of that state.
Any dispute among the parties hereto shall be settled by arbitration in
Nashville, Tennessee, in accordance with the then applicable rules of the
American Arbitration Association and judgment upon the award rendered may be
entered in any court having jurisdiction thereof. The arbitrator shall order the
unsuccessful party to pay all costs, legal expenses and fees of the successful
party.
SECTION XVI
NOTICES
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been made when delivered or
mailed first-class postage prepaid by registered mail, return receipt requested,
or when delivered if by hand, overnight delivery service or confirmed facsimile
transmission, to the following:
(a) If to the Company, at 0000 Xxxx Xxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000, or at such other address as may have been
furnished to the Senior Manager by the Company in writing, copy to Xxx Xxxxxxx,
Xxxxxx Xxxx Xxxxxxx & Manner, P.C., 1800 First American Center, 000 Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000; or
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(b) If to the Senior Manager, at ______________________,
or such other address as may have been furnished to the Company by the Senior
Manager in writing.
SECTION XVII
BINDING AGREEMENT
This Agreement shall be binding on the parties' successors, heirs and
assigns. In the event any payment called for herein is not paid when due it
shall not be deemed a default so long as it is cured within thirty (30) days. If
not cured, then all remaining obligations shall be accelerated and immediately
due and payable.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
By: /s/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
President & Chief Executive Officer
SENIOR MANAGER:
/s/ Xxxxxx X. Xxxxxx
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