Contract
Exhibit 99.1
111108
THIS
EMPLOYMENT AGREEMENT (the "Agreement"), made and entered into as of the 12th day
of November, 2008, by and between etrials, Inc., a Delaware corporation (the
"Company") (where the context permits, references to the Company also shall
include etrials Worldwide, Inc., a Delaware corporation ("EWI"), of which
etrials, Inc. is a wholly-owned subsidiary, and etrials Worldwide Limited, a
corporation of England and Wales which is a sister company to etrials, Inc., and
any future direct or indirect subsidiary of etrials Worldwide, Inc.); and
Xxxxxxx Xxxxx Xxxxxxxxx ("Employee");
W I T N E
S S E T H :
WHEREAS,
the Company is an eClinical software and services company providing software and
system solutions to the pharmaceutical, biotechnology, and medical device
industries for the primary purpose of optimizing the clinical trial process (the
"Company's Business");
WHEREAS,
the Company desires to employ Employee as its President and Chief Executive
Officer ("CEO"), and Employee desires to accept such employment;
WHEREAS,
during the course of Employee's employment with the Company, the Company shall
make available to Employee confidential information relating to the Company's
Business, and in this connection, the Company and Employee have reached an
agreement concerning a confidentiality and noncompetition arrangement;
and,
WHEREAS,
the Company and Employee now desire to set forth the terms and conditions of
Employee's employment in a written agreement and, for that purpose, the Company
and Employee have agreed to enter into this Agreement.
NOW,
THEREFORE, for and in consideration of the premises and mutual promises,
covenants, and conditions hereinafter set forth, and for other good and valuable
considerations, the receipt and sufficiency of which hereby are acknowledged,
the Company and Employee hereby agree as follows:
1. Relationship and
Duties.
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(a) Employment. Effective
November 12, 2008 (the "Effective Date"), the Company agrees to employ Employee,
and Employee accepts employment with the Company, upon the terms and conditions
stated herein. As an employee of the Company, Employee will serve as
the Company's President and CEO. In such position, Employee shall (i)
be subject to the direction of the Company's Board of Directors;
(ii) perform such duties and exercise such authority as is customary for
persons holding such position; and (iii) have such other duties and
responsibilities as shall be assigned to him from
time-to-time. Subject to meeting applicable disclosure requirements,
the Board of Directors will (x) appoint Employee to the Board of EWI; and (y) at
all meetings of stockholders of EWI during the term hereof at which Employee's
board seat is the subject of an election, recommend to the stockholders of EWI
that they vote their shares in favor of the election of Employee to the Board;
provided that
the Board Members determine the recommendation is consistent with their
fiduciary duties and would not cause any harm to the Company, including a
violation of law or loss of listing on NASDAQ or other securities
exchange. Employee acknowledges and agrees that his position requires
him to live near the location of the principal place of business of the Company,
and Employee hereby agrees to maintain his primary residence within a fifty (50)
mile radius of the Company's current principal place of business during the term
of this Agreement.
(b) Standards of Performance and
Conduct. During his employment, Employee shall
(i) faithfully and diligently discharge his duties and responsibilities
under this Agreement; (ii) perform in a reasonably competent manner the
duties associated with his position with the Company; (iii) use his best
efforts to implement the policies and procedures of the Company currently in
effect or as established from time-to-time by the Company; and (iv) devote
his full working time, attention, and efforts to the diligent performance of his
duties herein specified and not accept employment with any other individual,
corporation, or other entity, or engage as a corporate officer or employee in
any other venture for profit, which may interfere in any way with Employee's
performance of his duties hereunder; provided, however, that
Employee shall not be restricted from personally and for his own account dealing
and investing in real estate, securities, and other forms of investments for his
own benefit. In the execution of his duties under this Agreement,
Employee shall perform his duties in a manner that is consistent with the
requirements of the Delaware General Corporation Law and in accordance with all
rules and regulations of NASDAQ or such other market on which securities of the
Company are traded during the term of this Agreement. Moreover,
Employee shall comply at all times and in all material respects with any code of
conduct or other personnel policies and procedures adopted by the Company, as
the same are in effect and as amended or supplemented from time-to-time, and
with all applicable federal and state statutes and all rules, regulations,
administrative orders, statements of policy, and other pronouncements or
standards promulgated thereunder.
2. Term. The
term of this Agreement and Employee's employment under this Agreement shall
commence on the Effective Date and shall continue thereafter until otherwise
terminated pursuant to Section 4.
3. Compensation.
(a) Base
Salary. For all services rendered by Employee under this
Agreement, the Company shall pay to Employee a salary of Three Hundred
Twenty-Five Thousand and No/100 Dollars ($325,000.00) per year (the "Base
Salary"), such Base Salary to be payable in accordance with the Company's
ordinary payroll practices, but no less frequently than monthly.
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(b) Bonus. In
addition to the Base Salary described above, Employee shall be eligible for an
annual bonus of up to One Hundred Seventy-Five Thousand and No/100 Dollars
($175,000.00), based upon factors to be determined, in writing, by the
Compensation Committee of the Company's Board of Directors. Any part
of the bonus which is subject to being earned based on annual financial
performance of the Company shall not be deemed to be earned until after
confirmation of achievement of such performance criteria in the audited
financial statements of the Company. Employee shall receive a bonus
for fiscal year 2008 in the amount of $175,000, prorated for the number of
calendar days from the date of this Agreement through December 31, 2008;
provided that, such 2008 bonus shall not be subject to any performance criteria,
but shall be subject to the terms and conditions of this Agreement with respect
to bonuses. In accordance with the terms and conditions established
by the Compensation Committee or the Board of Directors, the Company reserves
the right to pay up to fifty percent (50%) of any bonus under this Section 3(b),
including any prorated bonus, in fully vested shares of common stock of the
Company. Notwithstanding anything in this Agreement to the contrary,
all bonuses hereunder will be paid no later than March 15th of the following
calendar year to which the bonus relates; provided, however, that in the event a
payment under this Section 3(b) cannot be paid by March 15th due to
administrative or other delay (for example, a delay in the audit of the
financial statements of the Company), Employee shall have no claim for damages
against the Company for such delay if such payment under this Section 3(b) is
made by the Company to Employee within the statutory time period under Section
409A of the Code (as hereinafter defined).
(c) Stock
Options. The Board of Directors or the Compensation Committee
of the Board of Directors, at its first meeting following execution and delivery
of this Agreement, shall grant Employee incentive stock options, to the extent
incentive stock options can be granted pursuant to applicable law, to acquire
Three Hundred Fifty Thousand (350,000) shares of the Company's common
stock. Such options shall be governed by the terms of the Company's
2005 Performance Equity Plan, as amended (the "Performance Equity Plan"), if the
options are granted pursuant to the Performance Equity Plan, or if the Board of
Directors of the Company determines the options should be governed by the
Performance Equity Plan. The exercise price for such options shall be
the fair market value of the Company's common stock on the date of grant
determined by the Board of Directors or the Compensation Committee of the Board
of Directors in accordance with the normal procedures of the Company and in
compliance with the requirements of Treasury Regulation §
1.409A-1(b)(5)(iv)(A). Such options shall vest quarterly in arrears
over a four (4) year period from the date of grant. Such options
shall be evidenced by a separate stock option agreement in a form approved by
the Compensation Committee or the Board of Directors of the Company and
consistent with the terms of this Agreement, and such options shall not be owned
by Employee until execution and delivery of such stock option
agreement.
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(d) Restricted
Stock. The Board of Directors or the Compensation Committee of
the Board of Directors, at its first meeting following execution and delivery of
this Agreement, shall grant Employee One Hundred Thousand (100,000) shares of
restricted common stock of the Company. Employee shall pay all taxes
resulting from the grant and/or vesting of such restricted stock and shall be
required to pay the amounts of all withholding due to the Company no later than
the time set forth in the restricted stock agreement referred to
below. The Company may, but shall not be required to, withhold such
taxes from cash compensation otherwise payable to Employee. Such restricted
stock shall be governed by the terms of the Company's Performance Equity Plan
then in effect, if the restricted stock is granted pursuant to the Performance
Equity Plan, or if the Board or Directors of the Company determines the
restricted stock should be governed by the Performance Equity
Plan. The purchase price for such restricted stock shall be the par
value of the Company's common stock. Such restricted stock shall vest
quarterly in arrears over a four (4) year period from the date of
grant. Such restricted stock grant shall be evidenced by a separate
restricted stock agreement in a form approved by the Compensation Committee or
the Board of Directors of the Company and consistent with the terms of this
Agreement, and such restricted stock shall not be owned by Employee until
execution and delivery of such restricted stock agreement.
(e) Other
Benefits.
(i) Benefit
Plans. During the term hereof, Employee shall be eligible to
participate in any and all employee benefit programs maintained by or for the
Company that are generally available to and which cover all the Company's
officers at Employee's job level or classification, subject to the rules
applicable to such plans or programs prevailing from time to
time. Except as otherwise specifically provided herein, Employee's
participation in such plans and programs shall be subject to and in accordance
with the terms and conditions (including eligibility requirements) of such plans
and programs, resolutions of the Company's Board of Directors establishing such
programs and plans, and the Company's normal practices and established policies
regarding such plans and programs. Employee acknowledges that the
terms and provisions of the Company's employee benefit plans and programs from
time to time may be determined only by reading the actual plan documents under
which the Company or the plan administrator, as applicable, may make certain
administrative determinations with discretion, and that the Company reserves the
right to modify or terminate each plan or program and any benefits provided
thereunder.
(ii) Annual Vacation
Leave. During the term hereof, all matters pertaining to the
entitlement to, and the accrual and scheduling of, vacation leave shall be
determined under the Company's standard leave policies and procedures in effect
from time to time; provided, however, that the
minimum amount of annual vacation leave to which Employee shall be entitled
shall be four (4) weeks.
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(iii) Expense
Reimbursement. Subject to the conditions described below,
during the term hereof, the Company shall reimburse Employee for reasonable
business expenses incurred by Employee in the performance of his duties under
this Agreement, provided that those expenses are of a type that are reimbursable
under employee expense reimbursement policies adopted by the Company from time
to time. As a condition of reimbursement, Employee shall promptly
submit verification of the nature and amount of such expenses in accordance with
the Company's reimbursement policies and in sufficient detail to comply with
rules and regulations promulgated by the Internal Revenue Service.
(f) Material Terms To Inducement
Of Employment. Employee hereby represents that the options to
be granted to Employee pursuant to Section 3(c) hereof and the restricted stock
to be granted to Employee pursuant to Section 3(d) hereof are material terms of
this Agreement, were a material part of the inducement to become employed by the
Company and Employee would not have accepted employment with the Company but for
such stock options and restricted stock. All matters related to such
options and restricted stock must be approved by a majority of the Directors of
the Company who are “Independent” as defined in NASDAQ rules.
(g) Effect of Code Section
409A.
(i) Notwithstanding
anything contained in this Agreement to the contrary, terms shall be
interpreted consistently with Section 409A of the Code, and the regulations
thereunder. In the case of a termination of Employee's employment for
any reason, any payments due and owing to Employee in connection with such
termination shall only be made if such termination constitutes a "separation
from service" under Section 409A and if the Company determines that
Employee is a "specified employee" within the meaning of Section 409A of the
Code on the date of such termination (the "Separation from Service Date"), then
(a) any payments
which the Company is obligated to pay to Employee under this Agreement that
would result in a tax, interest, and/or penalties under Section 409A if paid
during the first six months after the Separation from Service Date shall be
delayed and accumulated by the Company and the accumulated amount shall be
payable to Employer in a lump sum on the date that is six months and one week
after the Separation from Service Date, with any additional payments for
which the Company is obligated after that six-month period being payable on
the same schedule as Employee's Base Salary was being paid by the Company
on the Separation from Service Date, and (b) any lump-sum payment which
the Company is obligated to pay to Employee under this Agreement that would
result in a tax, interest, and/or penalties under Section 409A if paid during
the first six months after the Separation from Service Date shall be delayed and
be payable to Employee in a lump sum on the date that is six months and one week
after the Separation from Service Date. The purpose of this paragraph
is to comply with Section 409A.
(ii) To
the extent Employee is entitled to a series of installment payments under any of
the provisions of this Agreement, such series of installment payments shall be
treated as a series of separate payments for purposes of Section 409A, as
applicable.
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(iii) To
the extent Employee is entitled to the reimbursement of any expense or in kind
benefit under the provisions of this Agreement that is subject to Section 409A,
the right to such reimbursement or benefit shall not be subject to exchange for
another benefit and such reimbursement shall be paid by the Company no later
than March 15th of the following calendar year to which the expense is incurred;
provided, however, that in the event a reimbursement payment under this
Agreement cannot be paid by March 15th due to administrative or other delay,
Employee shall have no claim for damages against the Company for such delay if
such reimbursement payment is made by the Company to Employee within the
statutory time period under Section 409A of the Code. Except as otherwise
provided in Section 409A, in no event shall the amount of the reimbursement or
provision of benefits to Employee for one tax year affect the amount of the
reimbursement or provision of benefits to Employee in another tax
year.
(h) Withholding. Except
as otherwise provided, all compensation hereunder shall be subject to customary
deductions and withholding taxes and such other deductions and withholdings as
are required by law.
4. Termination.
(a) By the Company Without
Cause. The Company may terminate this Agreement and Employee's
employment under this Agreement at any time for any reason upon notice to
Employee. Upon any such termination by the Company, Employee shall be
entitled to receive Base Salary compensation earned through the effective date
of such termination, and, thereafter, the Company shall have no further
obligations hereunder; provided, however, that
Employee may be eligible for additional benefits as provided in Section 5
below.
(b) By the Company For
Cause. The Company may terminate this Agreement and Employee's
employment under this Agreement at any time for cause (as defined below) upon
notice to Employee. Upon any such termination by the Company,
Employee shall have no further rights under this Agreement and shall be entitled
only to receive Base Salary compensation earned through the effective date of
such termination. For purposes of this Agreement, the Company shall
have "cause" to terminate this Agreement upon:
(i) A
determination by the Company, in good faith, that Employee (A) has breached
in any material respect any of the terms or conditions of this Agreement or any
Company policy or has discriminated against any employee, customer, or other
person covered by any anti-discrimination laws, regulations, or policies;
(B) has failed in any material respect to perform or discharge his duties
or responsibilities of employment in the manner provided herein; or (C) is
engaging or has engaged in conduct involving moral turpitude, willful
misconduct, or conduct which is detrimental in any material respect to the
standing, reputation, or business prospects of the Company or which has had, or
likely will have, a material adverse effect on the Company's Business or
reputation; provided, however, that such a
breach or failure shall not give the Company "cause" to terminate this Agreement
if such breach or failure is capable of being corrected or cured and, in fact,
is corrected or cured by Employee to the Company's reasonable satisfaction
(which shall not be unreasonably withheld by the Company) within thirty (30)
days following written notice thereof to Employee;
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(ii) Employee's
commission (based on reasonable evidence) during his employment with the Company
of a felony or any act of fraud, embezzlement, theft, or personal dishonesty
(whether or not such act or charge results in criminal indictment, charges,
prosecution, or conviction);
(iii) The
use of alcohol by Employee that adversely affects his job performance or
reflects negatively upon the Company, his ability to fulfill the
responsibilities of his position, or the safety of employees, customers, or
others affiliated with the Company; or
(iv) Employee's
use of any controlled substance (except pursuant to the direction of a
physician), as defined at 21 U.S.C. § 802 and listed on
Schedules I through V of 21 U.S.C. § 812, as revised from
time-to-time, or as defined by other federal or state laws or
regulations.
(c) By Employee Without Good
Reason. Employee may terminate this Agreement and his
employment under this Agreement at any time for any reason upon thirty (30)
days' written notice to the Company. The Company, in its sole
discretion, may elect for Employee not to serve out part or all of the notice
period, in which case Employee's employment shall terminate
immediately. Upon any termination under this Section 4(c), Employee
shall be entitled only to Base Salary compensation earned through the final day
of Employee's active employment and, thereafter, the Company shall have no
further obligations hereunder.
(d) By Employee For Good
Reason. Employee may terminate this Agreement and his
employment under this Agreement at any time for Good Reason (as defined below)
upon delivery of written notice to the Company, which notice shall specify the
grounds constituting Good Reason. Upon any such termination by the
Employee for Good Reason, Employee shall be entitled to receive Base Salary
compensation earned through the effective date of such termination, and,
thereafter, the Company shall have no further obligations hereunder; provided, however, that
Employee may be eligible for additional benefits as provided in Section 5
below. For purposes of this Section 4(d), Employee shall have Good
Reason to terminate his employment upon the occurrence of any of the following
without Employee's consent:
(i) Employee's
Base Salary is materially reduced;
(ii) Employee
suffers any material reduction in his responsibilities with the Company such
that Employee no longer reports directly to the Board or no longer serves as
CEO;
(iii) Employee
is transferred to a job location which is more than 50 miles (by most direct
highway route) from the Company's current principal place of business;
or
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(iv) the
Company materially breaches the terms of this Agreement;
provided, however, that the
foregoing shall not constitute Good Reason unless Employee provides the Company
with written notice thereof within thirty (30) days of the first occurrence of
the condition being claimed to constitute Good Reason, and such condition
continues uncorrected for thirty (30) or more days after such written
notice. For purposes of this Section 4(d), "material" reduction or
"materially" reduced shall be any reduction that satisfies the requirements of a
separation from service for Good Reason under Section 409A and other applicable
Internal Revenue Service rules and regulations.
(e) Death or Permanent
Disability. Subject to the Company's obligations and
Employee's rights under Title I of the Americans with Disabilities Act and the
Family and Medical Leave Act, if applicable, and any other applicable federal or
state laws, this Agreement and Employee's employment hereunder shall terminate
automatically upon Employee's death or permanent disability. Upon any
termination under this Section 4(e), Employee or his estate, as appropriate,
shall be entitled to receive any Base Salary compensation Employee shall have
earned prior to the date of termination but which remains
unpaid. Permanent disability for purposes of this Agreement shall
mean a physical or mental condition of Employee which renders Employee incapable
of performing his normal and regular employment duties and which condition shall
be medically determined to be of permanent duration as defined by the Company's
group disability policy (or, if no such policy is in effect, as defined by the
Company). Employee agrees to submit to such medical examinations as
may be requested by the Company or the Company's disability insurer with regard
to the issue of disability of Employee.
If
Employee's termination of employment is due to death or permanent disability
hereunder, subject to Employee executing and delivering to the Company the
documents set forth in Section 5(b)(i) and 5(b)(ii) below, a prorated bonus
shall be payable to Employee through the effective date of termination for death
or permanent disability, as applicable, if Employee would have otherwise been
due such bonus had he remained employed based upon the performance criteria set
by the Board; provided, however, that if any
part of such bonus is based on the final audited financial statements of the
Company, such prorated bonus will be paid no later than March 15th of the
following calendar year to which the bonus relates, and in the event payment of
such prorated bonus cannot be paid by March 15th due to administrative or other
delay (for example, a delay in the audit of the financial statements of the
Company), Employee shall have no claim for damages against the Company for such
delay if such payment of the prorated bonus is made by the Company to Employee
within the statutory time period under Section 409A of the Code (as hereinafter
defined);
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(f) Director
Resignation. Upon termination of Employee's employment under
this Agreement for any reason, Employee shall be deemed to have immediately
resigned from the Company's Board of Directors, and Employee hereby agrees to
submit a letter to the Company confirming such resignation.
5. Compensation Upon
Termination Without Cause or For Good Reason.
(a) Severance. Upon
any termination by the Company without cause under Section 4(a) or by Employee
for Good Reason under Section 4(d), and upon Employee's satisfaction of the
terms and conditions set forth in Section 5(b), Employee shall be entitled to
the following benefits:
(i) the
Company shall pay Employee an amount equal to Employee's Base Salary for twelve
(12) months payable in accordance with the Company's normal payroll schedule
over the twelve-month period following the effective date of termination (the
"Severance Period"), subject to customary deductions and withholding taxes and
such other deductions and withholdings as are required by law;
(ii) a
prorated bonus payable through the date of termination under Section 4(a) or
4(d), if Employee would have otherwise been due such bonus had he remained
employed based upon the performance criteria set by the Board; provided,
however, that if any part of such bonus is based on the final audited financial
statements of the Company, such prorated bonus will be paid no later than March
15th of the following calendar year to which the bonus relates, and in the event
payment of such prorated bonus cannot be paid by March 15th due to
administrative or other delay (for example, a delay in the audit of the
financial statements of the Company), Employee shall have no claim for damages
against the Company for such delay if such payment of the prorated bonus is made
by the Company to Employee within the statutory time period under Section 409A
of the Code (as hereinafter defined); and
(iii)
the Company shall provide continuing coverage for Employee and his eligible
dependents, under the Company's medical and dental benefit plans, programs, and
policies then in effect if permitted until the earlier of the expiration of the
Severance Period or the date that Employee becomes eligible for substantially
equivalent coverage and benefits under the plan and programs of a subsequent
employer, provided that if by the terms of such benefit plans, Employee or his
family cannot be covered after termination of employment, and if Employee
chooses to exercise his rights to purchase continued health insurance coverage
under the Company's health insurance plan pursuant to the Consolidated Omnibus
Budget Reconciliation Act ("COBRA"), then the Company shall reimburse Employee
for the cost of such continued insurance coverage until the earlier of the
expiration of the Severance Period or the date that Employee becomes eligible
for substantially equivalent coverage and benefits under the plan and programs
of a subsequent employer.
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(b) Liability Release;
Non-Disparagement; Compliance With Section 4(f). In order to
qualify for any payment or other benefit under Section 5(a), Employee must
execute and deliver to the Company (i) a written mutual liability release and
mutual non-disparagement agreement in form and substance reasonably acceptable
to the Company; and (ii) a letter to the Company resigning from the Board of
Directors pursuant to Section 4(f) hereof. For purposes of paragraph
(i) above, Employee recognizes and agrees that any liability release on the part
of the Company shall be given only if consistent with any fiduciary duties and
obligations imposed on the Board or Directors or Company by applicable federal
and state statutes and all rules, regulations, administrative orders, statements
of policy, judicial and other pronouncements or standards promulgated
thereunder.
6. Noncompetition.
(a) General. Employee
hereby acknowledges and agrees that (i) the Company's Business, which is
Internet-based, operates in a national, international, and global market; (ii)
the Company will make a significant investment in the development of its
business in this region, and specifically in the geographic area identified as
the "Relevant Market" (as defined below) and, as a result, will have a valuable
economic interest in its business in the Relevant Market which it is entitled to
protect; (iii) in the course of Employee's service as an employee of the
Company, Employee has been and will continue to be exposed to, and has and will
continue to gain substantial knowledge of and familiarity with, Information (as
defined below), all of which constitutes valuable assets and privileged
information belonging to the Company; and (iv) in order to protect the Company's
interest in its business, it is reasonable and necessary to place certain
restrictions on Employee's ability to compete against the
Company. For that purpose, and in consideration of the Company's
agreements contained herein, Employee covenants and agrees as provided
below.
(b) Covenant Not to
Compete. During the "Restriction Period" (as defined below),
Employee shall not "Compete" (as defined below), directly or indirectly, with
the Company in the Relevant Market.
(c) Definitions.
(i) Compete. The
term "Compete" means to engage in or assist any person or entity whose business
is competitive with the Company's Business, whether as a director, officer,
partner, member, manager, owner, employee, agent, consultant, or otherwise, in
employment or other work similar to Employee's duties with the Company during
the one-year period immediately preceding the termination of Employee's
employment with the Company; provided, however, that,
following the termination of Employee's employment with the Company, passive
ownership of not more than two percent (2%) of the outstanding securities of a
publicly-traded entity which is engaged in competition with the Company's
Business shall not constitute "Competing" as defined herein.
(ii) Restriction
Period. The term "Restriction Period" means the period of
Employee's employment with the Company and the one (1) year period commencing on
the effective date of any termination of Employee's employment with the Company,
whether such termination is voluntary or involuntary or with or without
cause.
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(iii) Relevant
Market. The term "Relevant Market" shall be defined as the
following divisible and severable territorial divisions:
A. the
state or states within the United States in which the Company has engaged or
engages in the Company's Business and in which Employee has performed services
on behalf of the Company;
B. the
state or states within the United States in which the Company has engaged or
engages in the Company's Business;
C. the
United States and its territories;
D. the
United States and its territories, the United Kingdom, Ireland, and any other
country in which the Company has engaged or engages in the Company's
Business;
E. the
world.
(iv) Information. The
term "Information" shall be defined as all confidential and proprietary
information (whether in written, electronic, visual, oral, or other form)
relating to the Company's Business, including but not limited to:
A. all
program code and documentation, software, research and development,
specifications, design concepts, copyrights, trademarks, trade secrets, patents,
inventions, development tools and procedures, internal reports and
communications, test data, the nature and results of research and development
activities, and plans for the development or acquisition of future products or
product enhancements by the Company or its customer(s);
B. the
nature and type of the service rendered by the Company and the fees paid by the
Company's customers for products and services;
C. marketing
techniques, marketing plans, mailing lists, purchasing information, price lists,
pricing policies, quoting procedures, financial information, customer and
prospect names and requirements, customer data and preferences, customer site
information, pricing strategies, and other materials or information relating to
the manner in which the Company or its customer does business;
D. any
other materials or information related to the activities of the Company or the
Company's Business which are not generally known to others engaged in similar
businesses or activities;
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E. any
other materials or information that have been created, discovered, or developed
by, or otherwise become known to, the Company that have commercial value in the
business in which the Company is engaged; and,
F. any
materials or information received by the Company or Employee from third parties
in confidence (or subject to nondisclosure covenants).
7. Nonsolicitation and
Nondisclosure.
(a) General. During
the course of Employee's employment with the Company, Employee has been and
shall continue to be given, and has obtained and shall continue to obtain,
Information pertaining to the Company's customers and prospective customers for
the purpose of furthering the Company's Business, and has contacted and
solicited and will continue to contact and solicit the Company's customers and
prospective customers, who or which are located throughout the United States of
America and the world. Employee also acknowledges that the Company has spent and
shall continue to spend considerable amounts of time, effort, and company
resources in providing Employee with, and that Employee has and will continue to
participate in the development of, Information. Employee acknowledges
and agrees that the Company has a right to and does regard all such Information
as proprietary, and a trade secret or confidential, and has a right to protect
it from disclosure and misuse. To protect the Company from Employee's
use, disclosure, or exploitation of the Information, and to provide assurance to
the Company that it safely may continue to provide Employee with Information
relating to the Company's customers, prospective customers, and the Company's
Business, Employee expressly covenants and agrees that Employee shall not do any
of the following without the Company's prior written consent (which may be
withheld in the Company's sole discretion).
(b) Covenant of
Nonsolicitation. During the Restriction Period, either
directly, indirectly, or through any person or entity, other than on behalf of
the Company, Employee shall not:
(i) solicit
or accept any business competitive with the Company's Business from any person
or entity who or which was or is a customer of the Company and with whom or
which Employee had or has had "Material Contact" (as defined below) on behalf of
the Company within the one-year period immediately preceding the termination of
Employee's employment with the Company (a "Serviced Customer");
(ii) solicit
or accept any business competitive with the Company's Business from any person
or entity who or which was or is a prospective customer of the Company and with
whom or which Employee had or has had Material Contact on behalf of the Company
within the one-year period immediately preceding the termination of Employee's
employment with the Company (a "Marketed Prospective Customer");
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(iii) divert
or attempt to divert any Serviced Customer or Marketed Prospective Customer to
any person or business entity competitive with the Company;
(iv) employ
or seek to employ, retain or seek to retain, or advise or recommend to any other
person or business entity that such person/entity employ or seek to employ or
retain or seek to retain, any executive level employee of the Company (including
but not limited to any project managers or senior sales people) or consultant of
the Company serving the Company in a similar capacity, or solicit, induce,
recruit, or encourage any such employee or consultant to terminate his or her
relationship with the Company; or,
(v) seek
to employ or seek to retain, or advise or recommend to any other person or
business entity that such person/entity seek to employ or seek to retain, any
other employee or consultant of the Company, or solicit, induce, recruit, or
encourage any such employee or consultant to terminate his or her relationship
with the Company.
For
purposes of this Agreement, Employee will be deemed to have had "Material
Contact" with a person or business entity if, in the course of Employee's
employment with the Company, Employee obtained Information concerning the person
or entity, or Employee had personal dealings with the person or entity regarding
matters related to the Company's Business.
(c) Covenant of
Nondisclosure. Directly or indirectly, at any time, whether
during Employee's employment with the Company or after the termination of
Employee's employment with the Company for any reason, Employee shall not
divulge, use, disclose, publish, or communicate to any person or entity, any
confidential information of any kind, nature, or description relating to the
Company's Business, including but not limited to the Information; provided, however, that during
Employee's employment with the Company, Employee may disclose such information
as permitted by the Company for the limited purpose of performing Employee's job
duties, but only to the extent authorized by the Company, or as is required by
law to be disclosed. During Employee's employment with the Company or
after the termination of Employee's employment with the Company for any reason,
Employee shall not use the Information to the detriment of the Company or its
principals, shareholders, officers, directors, or employees, particularly in any
manner competitive with the Company, in any unlawful manner, or to interfere
with or attempt to terminate or otherwise adversely affect any business
relationship of the Company with a customer or prospective
customer.
The
foregoing obligation of confidentiality and nondisclosure shall not apply
when:
(i) Public
Domain. The Information was in the public domain at the time
of disclosure to Employee, or at any time after disclosure has become a part of
the public domain by publication or otherwise through sources other than
Employee, directly or indirectly, and without fault on the part of Employee in
failing to keep such Information confidential;
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(ii) Requirement of Law or
Order. Disclosure is required by law or court order, provided
Employee gives the Company prior written notice of any such disclosure so that
the Company may seek to contest such disclosure or seek a protective
order;
(iii) Agreement. Disclosure
is made with the prior written agreement of the senior management of the
Company; or,
(iv) Third Party
Disclosure. The Information is lawfully disclosed to Employee
after the termination of Employee's employment by a third party who is under no
obligation of confidentiality to the Company with respect to such
Information.
8. Records. All
notes, data, tapes, reference materials, sketches, drawings, memoranda, models,
records, any other documentation in any way relating to any of the information
referred to in Sections 6 and 7 hereof (including without limitation, any
Information) or to the Company's Business shall belong exclusively to the
Company, and Employee agrees to turn over to the Company all such materials and
all copies of such materials in Employee's possession or then under Employee's
control at the request of the Company or, in the absence of such request, upon
the termination of Employee's employment with the Company.
9. Reasonableness and
Enforceability.
(a) EMPLOYEE
HAS READ AND CAREFULLY CONSIDERED THE TERMS OF THIS AGREEMENT, HAS HAD THE
OPPORTUNITY TO CONTACT EMPLOYEE'S OWN LEGAL COUNSEL TO ADVISE EMPLOYEE REGARDING
THE TERMS OF THIS AGREEMENT, AND EMPLOYEE NOW AGREES THAT THE TERMS OF THIS
AGREEMENT ARE FAIR AND REASONABLE AND ARE REASONABLY REQUIRED FOR THE PROTECTION
OF THE INTEREST OF THE COMPANY AND THE COMPANY’S
STOCKHOLDERS. EMPLOYEE FURTHER AGREES THAT THE RESTRICTIONS AND
COVENANTS OF THIS AGREEMENT WILL NOT IMPAIR THE ABILITY OF EMPLOYEE TO SECURE
EMPLOYMENT SO AS TO BE ABLE TO MAKE A REASONABLE LIVING. The
provisions of this Agreement shall be enforceable notwithstanding the existence
of any claim or cause of action of Employee against the Company whether
predicated on this Agreement or otherwise.
(b) Employee
acknowledges and agrees that his right to receive the payments set forth in
Section 5(a) (to the extent Employee is otherwise entitled to such payments)
shall be conditioned upon Employee's compliance with the restrictions set forth
in Sections 6 and 7.
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(c) The
Company and Employee agree that the terms of Sections 6 and 7 hereof are the
only contractual covenants of non-competition and non-solicitation binding on
Employee (but the Company is not hereby waiving any duties Employee may have as
an officer or director of the Company under applicable
law). Notwithstanding the foregoing, Employee acknowledges that he is
subject to any damages or remedy provisions found herein or in the Plan
(including, but not limited to, the damages and remedy provisions of Section
13.3(a) of the Plan) in the event of his violation of Section 6 or 7 hereof
(which sections supersede clauses (i), (ii) and (iii) of such Section 13.3(a)
for all purposes of determining the applicability of such damages and remedy
provisions). .
10. Arbitration. Any dispute or claim arising
out of or in connection with any provision of this Agreement shall be resolved
exclusively by an arbitration committee applying the laws of North Carolina
whose decision shall be binding on the parties without further action or
recourse. The parties agree that the arbitration committee shall be
comprised of three (3) individuals, each of whom shall be a resident of the
State of North Carolina. Each party shall name one (1) person to
serve on the arbitration committee, and the two (2) persons so selected shall
choose a third person to serve on the committee. The decision of any
two (2) members of the committee shall be the decision of the
committee. In the event that the members of the arbitration committee
for any reason are not chosen within thirty (30) days from the date a party
hereto gives notice of claim for arbitration, any party hereto thereafter shall
have the right to apply to an appropriate court for the appointment by the
court, pursuant to N.C. Gen. Stat. § 1-569.11, to the committee of three (3)
qualified and disinterested arbitrators. To assist the committee in
its function as arbitrator, the committee may engage an attorney, certified
public accountant, and any other person to be of assistance in the arbitration
of any matter before the committee. The expenses of the committee,
including those of persons engaged to be of assistance to the committee, shall
be shared by the parties in proportions to be determined by the arbitration
committee. The arbitration award shall not include punitive damages,
factual findings, or conclusions of law, but such arbitration award may include
attorney fees in an amount determined by the arbitration
committee. Any award rendered by the arbitration committee shall be
final and binding and judgment may be entered upon it in any North Carolina
court of competent jurisdiction. Except as herein provided, the
provisions of Article 45C of Chapter 1 of the North Carolina General Statutes
shall apply in arbitration proceedings. Notwithstanding the
foregoing, the parties may apply to any court of competent jurisdiction for
preliminary or interim equitable relief, or to compel arbitration in accordance
with this section, without breach of this arbitration provision.
11. Specific Enforcement;
Damages; Attorneys' Fees. Employee acknowledges that a remedy
at law for any breach or threatened breach by Employee of the provisions of this
Agreement would be inadequate to protect the Company against the consequences of
such breach, and Employee therefore agrees that (a) the Company shall be
entitled to injunctive relief in case of any such breach or threatened breach
without posting any bond, and (b) Employee shall account for and pay over to the
Company all monetary damages suffered by the Company as the result of any
transactions constituting a breach of any of the provisions of this
Agreement. Employee further agrees that in the event he breaches this
Agreement, Employee shall pay all reasonable attorneys' fees allowed by law
incurred by the Company in enforcing the terms of this Agreement and in seeking
damages for its breach, or both, together with all court costs.
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12. Waiver. The
failure of any party to enforce at any time any of the provisions of this
Agreement shall not be construed as a waiver of such provisions or of the right
of such party thereafter to enforce any such provisions. Waiver by
any party hereto of any breach or default by the other parties of any of the
terms and provisions of this Agreement shall not operate as a waiver of any
other breach or default, whether similar to or different from the breach or
default waived.
13. Successor
Employers. Employee hereby authorizes the Company to provide a
copy of this Agreement to any and all future employers, and to notify any and
all future employers that the Company intends to exercise its legal rights
arising out of or in conjunction with this Agreement and/or any breach or any
inducement of breach of it.
14. Reformation/Severability of
Agreement. If any provision of this Agreement shall for any
reason be adjudged by any court of competent jurisdiction or arbiter to be
illegal, invalid, or otherwise unenforceable, such judgment shall not affect,
impair, or invalidate the remainder of this Agreement but shall be confined in
its operation to the provision of this Agreement directly involved in the
controversy in which such judgment shall have been rendered. The
invalid or unenforceable provision shall be reformed so that each party shall
have the obligation to perform reasonably alternatively to give the other party
the benefit of its bargain. In the event the invalid or unenforceable
provision cannot be reformed, the other provisions or applications of this
Agreement shall be given full effect, and the invalid or unenforceable provision
shall be deemed struck.
15. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the Company and Employee, their respective subsidiaries,
affiliates, principals, members, managers, directors, officers, successors and
assigns, heirs, legatees, executors, administrators, and personal
representatives, as applicable; provided, however, that the
agreements of Employee are personal to Employee, and Employee shall not assign
Employee's obligations, responsibilities, and benefits hereunder. The
Company shall have the right to assign its obligations, responsibilities, or
benefits hereunder.
16. Governing Law; Venue;
Consent to Personal Jurisdiction. This Agreement is executed
in the State of North Carolina, and Employee agrees that without regard to
principles of conflicts of laws, the internal laws of the State of North
Carolina shall govern and control the validity, interpretation, performance, and
enforcement of this Agreement. Any lawsuit brought under the terms of
this Agreement shall have exclusive venue in the state and federal courts of
Wake County, North Carolina; provided, however, that with
respect to any proceeding for injunctive relief the Company may, at its option,
bring the proceeding before a court where Employee resides at the time of such
proceeding. Employee hereby consents to the personal jurisdiction of
such courts.
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17. Notice. Any
notice required hereunder shall be deemed sufficient and service thereof
completed upon receipt, refusal, or nondelivery of same if same shall be in
writing and hand-delivered or addressed to the addressee at the last known post
office address thereof, in the case of Employee, or the registered office of the
Company, in the case of the Company, and mailed certified or registered mail,
with return receipt requested, postage prepaid.
18. Entire
Agreement. This Agreement contains the entire agreement and
understandings by and between the Company and Employee with respect to the
covenants herein described, and no representations, promises, agreements, or
understandings, written or oral, not herein contained shall be of any force or
effect. No change or modification hereof shall be valid or binding
unless the same is in writing and signed by the parties hereto. No
waiver of any provision of this Agreement shall be valid unless the same is in
writing and signed by the party against whom such waiver is sought to be
enforced; moreover, no valid waiver of any other provision of this Agreement at
any time shall be deemed a waiver of any other provision of this Agreement at
such time nor will it be deemed a valid waiver of such provision at any other
time.
19. Section
Headings. The section headings are for convenience of
reference only and shall not be construed as terms of this
Agreement.
20. Survival of
Covenants. The provisions set forth in Sections 4 through 20
of this Agreement shall survive the termination of this Agreement and shall
survive termination of Employee's employment with the Company.
21. Right to Serve on a
Board. Notwithstanding anything in this Agreement to the
contrary, during the term of this Agreement, Employee may serve on the board of
directors of one (1) nonpublic company, as approved by the Board of Directors
(such approval shall not be unreasonably withheld), for as long as the Board of
Directors of the Company determines that such position does not interfere or
conflict with the duties of Employee to the Company or cause other harm to the
business of the Company.
[Remainder
of page intentionally left blank. Signatures
follow.]
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed in its
corporate name in such form as to be binding, and Employee has executed this
Agreement by subscribing his name and adopting as his seal the typewritten word
"SEAL" appearing beside his name, all effective as of the Effective
Date.
ETRIALS,
INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
III
Xxxxxx
X. Xxxxxxxxx III
Its: Chief
Financial Officer
EMPLOYEE:
/s/ Xxxxxxx Xxxxx
Xxxxxxxxx (SEAL)
Xxxxxxx
Xxxxx Xxxxxxxxx
Residence
Address:
0000
Xxxxx Xxxxx Xx
Xxxx,
XX. 00000
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