EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made this 1st day of June, 1997, is by and between Xxxx
Xxxxxxx (herinafter "Employee") and Euro Bio-Pharm Holdings B.V., with a
registered office at Xxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
(hereinafter "Employer").
WHEREAS, Employer desires to employ Employee, and Employee desires to be
employed by Employer; and
WHEREAS, both parties wish to define and clarify all terms and conditions
of the employment relationship; and
WHEREAS, both parties wish to avoid any disputes over any terms and
conditions of the employment relationship, and to insure that any such disputes
are resolved expeditiously and inexpensively through arbitration instead of
litigation; and
NOW THEREFORE, INTENDING TO BE LEGALLY BOUND, in consideration of the
mutual covenants contained herein, it is hereby agreed as follows:
1. Position. Employer agrees to employ Employee in the position of
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President, International CRO. Employee shall perform such duties and accept all
responsibilities incidental to and commensurate with his position with Employer
or as may be assigned to him by Employer. Employee shall cooperate fully with
his Employer and not perform any duties or responsibilities which would in any
manner, directly or indirectly, limit or affect the ability of Employee to
perform the duties and responsibilities assigned to Employee by Employer.
Employee agrees to devote his entire skills and knowledge to Employer.
During the term of this Agreement and his employment with Employer, Employee
shall not undertake, directly or indirectly, any paid or unpaid secondary
activities for any firm, institution or company, whether as an employee,
consultant or in any other manner, without the prior written approval of the
Employer. Breach of this provision is a basis for termination of the Employee's
employment for cause.
It is understood by Employee and Employer that in order for Employee to
carry out his responsibilities as President, International CRO that Employee is
expected to allocate his time and energy between and among various countries and
operations where Employee and its affiliates operate, including Germany, France
and the United Kingdom. Employee agrees and consents to being named a Director
of the Employer.
2. Remuneration. Employer agrees that for performing his duties and
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responsibilities, it will pay Employee a base salary of DM 425,000 (four hundred
and twenty five thousand deutsche marks) per year, less any applicable
withholdings or deductions, with annual merit increases as mutually agreed to by
Employee and Employer (the "base salary"). Employee will also be eligible for
annual bonus and stock option awards according to the applicable bonus and
option plan for management employees (the "Plan"), which Plan may be changed
from year to year at the
discretion of the Employer. The Plan for 1997 contains a maximum bonus of 22.5%
of the base salary of Employee if all criteria and goals are met for the
calendar year.
Employee agrees and acknowledges that, consistent with his international
responsibilities, Employee's remuneration may be allocated among the entities
and countries in and for which Employee performs services pursuant to this
Agreement, and that Employee may be responsible for filing tax returns and
paying taxes in such countries.
3. Options. If approved by the Board of Directors, Employee shall be
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entitled to receive options for 75,000 shares of stock of IBAH, Inc., the parent
corporation of the Employer ("IBAH"), effective the date of the next scheduled
meeting of the Board of Directors of IBAH. Employer will endeavor to grant such
options in the most tax effective method permissable under the applicable plan
documents and local law.
4. Transportation. Employee shall be entitled to a receive a company car
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equivalent to a BMW 528e class or a car allowance to cover the expenses
associated with leasing an equivalent car.
5. Vacation. Employee shall be entitled to vacation as per the statutory
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requirements in Belgium. Employee shall plan his vacation in coordination with
the remaining members of the Employer's management team in a way that shall not
affect the interests of the Employer.
In case Employee cannot take his vacation in total or in part during any
calendar year, he may use his vacation during the first three months of the next
consecutive calendar year. Vacation of the preceding year shall be forfeited on
March 31 of the following calendar year.
6. Additional Benefits. In addition to the remuneration set forth above,
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Employee shall be entitled to participate in any of the Employer's standard
benefit policies or plans, including the pension plan, according to their terms.
These policies and plans may be modified or terminated from time to time by the
Employer, but not retroactively. The written terms of the policies or plans
shall govern any questions of eligibility, coverage or duration of coverage.
In addition to the Employer's standard benefit plans and policies, Employee
shall be entitled to receive up to an additional DM 3,408 per year to cover the
cost of a private life insurance policy of Employee.
7. Relocation. Employee shall be entitled to receive up to three months
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rent, at a rate of DM 2,090 per month, for his apartment in Germany, if
required, with the understanding that Employee agrees to terminate the lease of
that apartment as soon as practicable. Employee shall also be entitled to
receive reimbursement from Employer for documented reasonable and customary
costs of moving household goods to Belgium from Germany.
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Employer will pay the reasonable, documented costs of professional advice
required by Employee for his annual tax filings, provided that Employee hires
the tax advisors used by the Employer, unless the Employer approves in writing
the consultation with another advisor.
8. Term and Termination. The effective date of this Agreement is June 1,
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1997 (the "Effective Date"). This Agreement shall continue for an
indeterminate period of time.
Either party may terminate this Agreement at any time, with effect as of
the end of a calendar quarter, by giving six months prior written notice.
Without any notice being required, the employment shall terminate at the
end of the month during which the Employee shall attain age sixty-five (65).
In the case of a notice of termination, Employer shall be entitled to
release the Employee from his duties to render comparable services for Employer,
while continuing to pay his contractual remuneration through the end of the
applicable notice period. Such period of release shall be offset from the
Employee's pro rata vacation entitlement.
Any such release shall not affect or in any way diminish the obligations of
the Employee under this Agreement.
The right to terminate the Employee's employment immediately for cause
shall not be affected by the provisions above. Should a termination for cause
be legally invalid, it shall be regarded as an ordinary notice of termination
with effect to the earliest possible date.
9. No Prior Restriction. Employee warrants that he is not restricted by
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any restrictive covenant or confidentiality agreement from any prior employment
from performing all of the duties required by this Agreement. Should a prior
employer assert that Employee is so restricted, the Employee shall indemnify,
defend, and hold harmless the Employer from any reasonable attorneys' fees or
costs incurred in defending such claims and any damages resulting either from
final judgment or reasonable settlement of any such claims.
10. Covenant Not to Compete. For a period of 12 months after the
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termination of this Agreement, the Employee shall not render any services to any
contract research organization ("CRO") or company in competition to Employer's
business activities in any part of the territory in which the International CRO
of Employer operates (the "Territory") or in competition to the business
activities of any subsidiary or division of Employer in the Territory, whether
as an agent, employee, consultant or in any other manner, and he shall not run a
respective enterprise on his own or participate in such an enterprise. This
obligation of the Employee shall be related to any such competitive activities
in the Territory. It is also understood and agreed that the provisions of this
section shall not prevent Employee from undertaking future responsibilities as a
regular, full-time employee of a pharmaceutical company engaged in research and
development, manufacturing, marketing and sales or licensing of its own
proprietary products, but not in a CRO, directly or
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through any subsidiary or division.
The parties hereto agree that any rights and duties of Employer under this
non-competition agreement may be transferred to any subsidiary or division of
Employer.
11. Confidentiality. Employee will not at any time, whether during or
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after the termination of his employment, reveal to any person or entity any of
the trade secrets or confidential information concerning the organization,
business, or finances of the Employer or any of the affiliates of Employer.
Confidential information or trade secrets includes, but is not limited to,
operating procedures, salary structure/compensation information, pricing
strategies, investigator lists, budgets and other related data, computer
software, databases and programming, data files, client lists and related
information, financial information and projections, inventions, know-how,
products, services, techniques and any other information which, if divulged to a
third party could have an adverse impact on the Employer or its affiliates, or
on any third party to which the Employer or its affiliates owes a
confidentiality obligation, except as may be required in the ordinary course of
performing his duties as an employee of the Employer.
Further, Employee understands that client companies disclose confidential
information to the Employer and that the Employer agrees, in writing, to
maintain the confidentiality of this information. Employee will not at any
time, whether during or after the termination of his employment, reveal to any
person or entity any trade secrets or confidential information concerning the
organization, business or finances of any third party or client to which the
Employer owes a confidentiality obligation.
12. Developments. If at any time or times during his employment, the
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Employee (either alone or with others) makes, conceives, creates, discovers,
invents or reduces to practice any invention, modification, discovery, design,
development, improvement, process, software program, work of authorship,
documentation, formula, data, whether or not patentable or registrable under
copyright, trademark or similar statutes (including but not limited to the
Semiconductor Chip Protection Act or subject to analogous protection) (herein
called "Developments") that (a) relates to the business of the Employer or any
customer of or supplier to the Employer or any of the products or services being
developed, manufactured or sold by the Employer or which may be used in
relation therewith, (b) results from tasks assigned me by the Employer or (c)
results from the use of premises or personal property (whether tangible or
intangible) owned, leased or contracted for by the Employer, such Developments
and the benefits thereof are and shall immediately become the sole and absolute
property of the Employer and its assigns, as "work made for hire" or otherwise,
and Employee shall promptly disclose to the Employer (or any persons designated
by it) each such Development and, as may be necessary to ensure the Employer's
ownership of such Developments, Employee hereby assign any rights (including,
but not limited to, any copyrights and trademarks) he may have or acquire in the
Developments and benefits and/or rights resulting therefrom to the Employer and
its assigns without further compensation and shall communicate, without cost or
delay, and without disclosing to others the same, all available information
relating thereto (with all necessary plans and models) to the Employer.
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Employee will, during his employment and at any time thereafter, at the
request and cost of the Employer, promptly sign, execute, make and do all such
deeds, documents, acts and things as the Employer and its duly authorized agents
may reasonably require:
(a) to apply for, obtain, register and vest in the name of the
Employer alone (unless the Employer otherwise directs) letters patent,
copyrights, trademarks or other analogous protection in any country throughout
the world and when so obtained or vested to renew and restore the same; and
(b) to defend any judicial, opposition or other proceedings in
respect of such applications and any judicial, opposition or other proceedings
or petitions or applications for revocation of such letters patent, copyright,
trademark or other analogous protection.
In the event the Employer is unable, after reasonable effort, to secure his
signature on any application for letters patent, copyright or trademark
registration or other documents regarding any legal protection relating to a
Development, whether because of the physical or mental incapacity of Employee or
for any other reason whatsoever, Employee hereby irrevocably designates and
appoints the Employer and its duly authorized officers and agents as his agent
and attorney-in-fact, to act for and in his behalf and stead to execute and file
any such application or applications or other documents and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright or trademark registrations or any other legal protection
thereon with the same legal force and effect as if executed by Employee.
13. Debarment. Employee represents that he has never been (i) debarred or
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convicted of a crime for which a person can be debarred by the U.S. Food and
Drug Administration ("FDA") under 21 U.S.C. '335a ('"335a") or by any other
regulatory agency nor (ii) threatened to be debarred or indicted for a crime or
otherwise engaged in conduct for which a person can be debarred by the FDA under
'335a or by any other regulatory agency. Employee will promptly notify the
Employer in the event of any such debarment, conviction, threat or indictment
occurring during the term of his employment with Employer.
14. Arbitration of Disputes. Any claims based on this Agreement shall be
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raised in writing with the Employer within a period of six months after (i) the
due date of such claims or (ii) the termination of this employment, whichever
first occurs.
All disputes arising out of or concerning the interpretation or application
of this Agreement, including without being limited to any claims that the
application of this Agreement or the termination of the employment relationship
established by this Agreement violates any federal, state, or local law,
regulation, or ordinance shall be resolved timely and exclusively by arbitration
pursuant to the rules of the American Arbitration Association, except as
provided below. Arbitration must be demanded within thirty (30) days of the
rejection of any claim raised with the Employer pursuant to this section. The
arbitration opinion and award shall be final and binding on the parties and
enforceable by any court of competent jurisdiction. The parties shall share
equally
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all costs of arbitration excepting their own attorneys fees (unless and
to the extent ordered by the arbitrator(s) to pay the attorneys' fees of
prevailing party).
The parties recognize that this paragraph means that certain claims will be
tried before an impartial arbitrator or panel of arbitrators instead of before a
court and/or a jury, but desire the many benefits of arbitration over court
proceedings, including speed of resolution, lower costs and fees,and more
flexible rules of evidence. The arbitrator or arbitrators duly selected
pursuant to the AAA Rules shall have the same power and authority to order any
remedy for violation of a statute, regulation, or ordinance, as a court would
have; and shall have the same power to order discovery as a U.S. federal
district court has under the U.S. Federal Rules of Civil Procedure.
This clause is intended by the parties to be enforceable under the U.S.
Federal Arbitration Act. Should it be determined by any court of competent
jurisdiction that the Act does not apply, then it shall be enforceable under the
arbitration statute of the Commonwealth of Pennsylvania.
15. Employer Property. All documents and other materials made, compiled
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by or made available to Employee during the course of his employment and all
copies thereof in any form, whether or not they contain confidential
information, are and shall be the exclusive property of the Employer and shall
be returned/delivered to the Employer immediately upon termination of his
employment.
16. Direct Court Access. Notwithstanding Section 14 above, the Employer
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may proceed directly to any court of competent jurisdiction should the Employee
breach Sections 10,11,12 or 15 above and that breach cause irreparable injury to
the Employer.
17. Integration/Modification. This Agreement constitutes the entire
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integrated agreement between the parties, and supersedes any prior or
contemporaneous letters, statements, representations, warranties, understandings
or inducements of any kind. This Agreement may be modified only by a writing
signed by the parties and stating that it modified this Agreement.
18. Severability/Survival. Should any paragraph or portion thereof be
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found illegal or unenforceable to any extent or degree by any court of competent
jurisdiction, this shall not effect the validity and enforceability of the
remaining paragraphs hereof. The obligations of Sections
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9,10,11,12,14,15 and 16 of this Agreement shall survive and continue even after
the termination of the employment or this Agreement.
Euro Bio-Pharm Holdings B.V.
By: /s/ Xxxxxxxxx X. Xxxxxxx /s/ Xxxx Xxxxxxx
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Xxxxxxxxx X. Xxxxxxx Xxxx Xxxxxxx
Managing Director
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