EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") entered into as of this 18th day of
February, 2001, between SFBC Ft. Xxxxx, Inc., a Florida corporation (the
"Company") and Xxxxxx Xxxxxxxx, Ph.D. (the "Employee").
WHEREAS, in its business, the Company has acquired and developed
certain trade secrets, including but not limited to proprietary processes, sales
methods and techniques, and other like confidential business and technical
information including but not limited to technical information, design systems,
pricing methods, pricing rates or discounts, process, procedure, formula, design
of computer software, or improvement, or any portion or phase thereof, whether
patented or unpatentable, that is of any value whatsoever to the Company, as
well as certain unpatented information relating to the Company's Services, as
defined, information concerning proposed new Services, market feasibility
studies, proposed or existing marketing techniques or plans (whether developed
or produced by the Company or by any other entity for the Company), other
Confidential Information, as defined by Section 8, and information about the
Company's employees, officers, and directors, which necessarily will be
communicated to the Employee by reason of his employment by the Company; and
WHEREAS, the Company has strong and legitimate business interests in
preserving and protecting its investment in the Employee, its trade secrets and
Confidential Information, and its substantial relationships with suppliers, and
Customers, as defined, actual and prospective; and
WHEREAS, the Company desires to preserve and protect its legitimate
business interests further by restricting competitive activities of the Employee
during the term of employment and following (for a reasonable time) termination
of employment; and
WHEREAS, the Company desires to employ the Employee and to ensure the
continued availability to the Company of the Employee's services, and the
Employee is willing to accept such employment and render such services, all upon
and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement, and intending to be legally bound, the
Company and the Employee agree as follows:
1. Representations and Warranties. The Employee hereby represents and
warrants to the Company that he (i) is not subject to any written
nonsolicitation or noncompetition agreement affecting his employment with the
Company (other than any prior agreement with the Company or any affiliate), (ii)
is not subject to any written confidentiality or nonuse/nondisclosure agreement
affecting his employment with the Company (other than any prior agreement with
the Company or or any affiliate), and (iii) has brought to the Company no trade
secrets, confidential business information, documents, or other personal
property of a prior employer.
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2. Term of Employment.
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(a) Term. The Company hereby employs the Employee, and the Employee
hereby accepts employment with the Company for a period commencing on the date
of this Agreement and ending one year from the date of this Agreement (the
"Term"), automatically renewable for additional one year terms unless either
party gives the other at least 30 days written notice.
(b) Continuing Effect. Notwithstanding any termination of employment,
at the end of the term or otherwise, the provisions of Sections 7 and 8 shall
remain in full force and effect and the provisions of Section 8 shall be binding
upon the legal representatives, successors and assigns of the Employee.
3. Duties.
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(a) General Duties. The Employee shall serve as President of the
Company, with duties and responsibilities that are customary for such position.
Annexed as Schedule 3.1 is a copy of the job description and as Schedule 3.2 is
a copy of the Employee's goals and objectives and plan of action. The Employee
shall also perform services for any subsidiaries of SFBC International, Inc.,
the Company's parent (the "Parent"), as may be requested by a senior officer of
the Company or the Company's Board of Directors. The Employee shall use his best
efforts to perform his duties and discharge his responsibilities pursuant to
this Agreement competently, carefully and faithfully.
(b) Devotion of Time. The Employee shall devote all of his time,
attention and energies during normal business hours (exclusive of periods of
sickness and disability and of such normal holiday and vacation periods as have
been established by the Company) to the affairs of the Company. The Employee
shall not enter the employ of or serve as a consultant to, or in any way perform
any services with or without compensation to, any other persons, business or
organization without the prior consent of the board of directors of the Company.
(c) Location of Office. The Employee's principal business office shall
be at the Company's offices in Ft. Xxxxx, Florida, as it may change from time to
time. However, the Employee's job responsibilities shall include all business
travel necessary to the performance of his job, including travel to Miami-Dade
County, Florida where the Parent is located.
(d) Adherence to Inside Information Policies. The Employee acknowledges
that the Parent is publicly-held and, as a result, has implemented inside
information policies designed to preclude its employees and those of its
subsidiaries from violating the federal securities laws by trading on material,
non-public information or passing such information on to others in breach of any
duty owed to the Company, its Parent or any third party. The Employee shall
promptly execute any agreements generally distributed by the Company or the
Parent to its employees requiring such employees to abide by its inside
information policies.
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4. Compensation and Expenses.
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(a) Salary. For the services of the Employee to be rendered under this
Agreement, the Company shall pay the Employee an annual salary of $109,500
during the Term, payable in accordance with the Company's normal payroll
practices.
(b) Car Allowance: Employee shall receive a $500 per month car
allowance.
(c) Expenses. In addition to any compensation received pursuant to
Section 4(a) or (b), the Company shall reimburse or advance funds to the
Employee for all reasonable travel, entertainment and miscellaneous expenses
incurred in connection with the relocation of Employee and performance of his
duties under this Agreement, provided that the Employee properly provides a
written accounting of such expenses to the Company in accordance with the
Company's practices. Such reimbursement or advances shall be made in accordance
with policies and procedures of the Company in effect from time to time relating
to reimbursement of or advances to Employees.
5. Benefits.
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(a) Vacation. The Employee shall be entitled to four weeks of vacation
without loss of compensation or other benefits to which he is entitled under
this Agreement, to be taken at such times as the Employee may select and the
affairs of the Company may permit.
(b) Employee Benefit Programs. The Employee is entitled to participate
in any pension, 401(k), insurance or other employee benefit plan that is
maintained by the Company for its employees, including programs of life and
medical insurance and reimbursement of membership fees in professional
organizations.
(c) Insurance. The Company shall pay premiums on the Company's medical
insurance policy covering the Employee and dependents.
(d) Professional Dues. The Company shall reimburse the Employee for
reasonable costs of professional licenses and society dues related to his
employment.
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6. Termination.
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(a) General Provisions. The Company may terminate the Employee's
employment for Cause (as defined below) pursuant to the terms of this Agreement
at any time upon the giving of notice. On or before the termination of his
employment or prior to receiving any final compensation or expenses due him, the
Employee shall (a) return to the Company's principal executive offices, (b)
participate in an exit interview, and (c) execute a Certificate of Conclusion of
Employment, certifying that he has complied with his obligations and
acknowledging his continuing obligations under this Agreement. The Employee's
failure to comply with the requirements of Section 6 of this Agreement shall
constitute a material breach of this Agreement.
(b) Termination for Cause. The Company may terminate the Employee's
employment pursuant to the terms of this Agreement at any time for Cause by
giving written notice of termination. The Employee shall have 10 days from the
date of the notice to provide the Company with evidence that the Company is
mistaken as to "Cause" and that the Employee's behavior does not meet the
criteria for "cause" as defined herein. During such 10 day period the Employee
shall be suspended without pay; if employment is reinstated the Employee shall
be paid for the 10 day period and if the termination is upheld such termination
shall be effective upon the giving of written notice of termination. Upon any
such termination for Cause, the Employee shall have no right to compensation or
reimbursement under Section 4, or to participate in any employee benefit
programs under Section 5, except as provided by law, for any period subsequent
to the effective date of termination. For purposes of this Section 6(b), "Cause"
shall mean: (i) the Employee is convicted of a felony involving any subject
matter (ii) commits a felonious act; (iii) is convicted of a misdemeanor
involving the Employee's employment or the business of the Company; (iv) is
found after an internal investigation to have engaged in sexual misconduct which
is related to the Employee's employment or the business of the Company; (v) the
Employee, in carrying out his duties hereunder, has acted with gross negligence
or intentional misconduct resulting, in either case, in harm to the Company;
(vi) the Employee misappropriates Company funds or otherwise defrauds the
Company; (vii) the Employee breaches his fiduciary duty to the Company resulting
in profit to him, directly or indirectly; (viii) the Employee has been found to
have committed any act or failed to take any action which results in the
Parent's common stock being delisted for trading on the American Stock Exchange
or any other principal trading market or exchange; (ix) the Employee is
convicted of illegal possession or use of a controlled substance; (x) the
Employee engages in chronic absenteeism or drinking to excess; (xi) the Employee
fails or refuses to cooperate in any official investigation conducted by or on
behalf of the Company; or (xii) the Employee materially breaches any provision
of this Agreement including Section 3(d).
7. Non-Competition Agreement.
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(a) Competition with the Company. Until termination of his employment
and for a period of 12 months commencing on the date of termination, the
Employee, directly or indirectly including or, in association with or as a
stockholder, director, officer, consultant, employee, partner, joint venturer,
member or otherwise of or through any person, firm, corporation, partnership,
association or other entity ("any of the foregoing defined as an "Affiliated
Entity"), shall not compete with the Company, or its affiliates including the
Parent in the offer, sale or marketing of products or services that are
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competitive with the products or services offered by the Company, its affiliates
or the Parent, within any metropolitan area in the United States or elsewhere in
which the Company, its affiliate or the Parent, as applicable is then engaged in
the offer and sale of competitive products or services. In addition, the
Employee may not directly or indirectly including through any Affiliated Entity
obtain employment with or perform services for any Customer, as defined, of the
Company, any affiliate or the Parent during the period commencing on the date of
termination and continuing for 12 months thereafter; provided, however, the
foregoing provisions shall not prevent the Employee from accepting employment
with an enterprise engaged in two or more lines of business, one of which is the
same or similar to the Company's or the Parent's business (the "Prohibited
Business") if the Employee's employment is totally unrelated to the Prohibited
Business and if a Customer, the Customer does not terminate its agreements with
the Company; provided, further, the foregoing shall not prohibit Employee from
owning up to 5% of the securities of any publicly-traded enterprise provided the
Employee is not an employee, director, officer, consultant to such enterprise or
otherwise reimbursed for services rendered to such enterprise.
(b) Solicitation of Customers. During the periods in which the
provisions of Section 7(a) shall be in effect, the Employee, directly or
indirectly including through any Affiliated Entity, shall not seek Prohibited
Business from any Customer (as defined below) on behalf of any enterprise or
business other than the Company or any affiliate including the Parent, refer
Prohibited Business from any Customer to any enterprise or business other than
the Company or any affiliate including the Parent or receive commissions based
on sales or otherwise relating to the Prohibited Business from any Customer, or
any enterprise or business other than the Company or any affiliate including the
Parent. For purposes of this Agreement, the term "Customer" means any person,
firm, corporation, partnership, association or other entity to which the Company
or any of its affiliates including the Parent sold or provided goods or services
during the 24-month period prior to the time at which any determination is
required to be made as to whether any such person, firm, corporation,
partnership, association or other entity is a Customer, or who or which has
approached by or who or which has approached an employee of the Company or any
affiliate including the Parent for the purpose of soliciting business from the
Company or any affiliate including the Parent or the third party, as the case
may be.
(c) Solicitation of Employees. During the periods in which the
provisions of Section 7(a) shall be in effect, the Employee, directly or
indirectly including through any Affiliated Entity shall not solicit, hire or
contact any employee of the Company for the purpose of hiring them or causing
them to terminate their employment relationship with the Company.
(d) No Payment. The Employee acknowledges and agrees that no separate
or additional payment will be required to be made to him in consideration of his
undertakings in this Section.
(e) References to the Company in this Section 7 shall include the
Company's affiliates including the Parent.
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8. Non-Disclosure of Confidential Information.
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(a) Confidential Information. Confidential Information includes, but is
not limited to, trade secrets as defined by the common law and statute in
Florida or any future Florida statute, processes, policies, procedures,
techniques, designs, drawings, know-how, show-how, technical information,
specifications, computer software and source code, information and data relating
to the development, research, testing, costs, marketing and uses of the Services
(as defined herein), the Company's budgets and strategic plans, and the identity
and special needs of Customers, databases, data, all technology relating to the
Company's businesses, systems, methods of operation, client or Customer lists,
Customer information, solicitation leads, marketing and advertising materials,
methods and manuals and forms, all of which pertain to the activities or
operations of the Company, names, home addresses and all telephone numbers and
e-mail addresses of the Company's employees, former employees, clients and
former clients. In addition, Confidential Information also includes the identity
of Customers and the identity of and telephone numbers, e-mail addresses and
other addresses of employees or agents of Customers who are the persons with
whom the Company's employees and agents communicate in the ordinary course of
business. Confidential Information also includes, without limitation,
Confidential Information received from the Company's affiliates including the
Parent. For purposes of this Agreement, the following will not constitute
Confidential Information (i) information which is or subsequently becomes
generally available to the public through no act of the Employee, (ii)
information set forth in the written records of the Employee prior to disclosure
to the Employee by or on behalf of the Company which information is given to the
Company in writing as of or prior to the date of this Agreement, and (iii)
information which is lawfully obtained by the Employee in writing from a third
party (excluding any affiliates (which includes the Parent) of the Employee) who
did not acquire such confidential information or trade secret, directly or
indirectly, from the Employee or the Company. As used herein, the term
"Services" shall include all formulations, foods, drugs and medical devices for
which the Company has performed any clinical or pre-clinical research, testing,
protocol design, data management, medical writing or other services, during the
term of the Employee's employment.
(b) Legitimate Business Interests. The Employee recognizes that the
Company has legitimate business interests to protect and as a consequence, the
Employee agrees to the restrictions contained in this Agreement because they
further the Company's legitimate business interests. These legitimate business
interests include, but are not limited to (i) trade secrets; (ii) valuable
confidential business or professional information that otherwise does not
qualify as trade secrets including all Confidential Information; (iii)
substantial relationships with specific prospective or existing Customers or
clients; (iv) customer or client goodwill associated with the Company's
business; and (v) specialized training relating to the Company's technology,
methods and procedures.
(c) Confidentiality. For a period of two years following termination of
employment, or as otherwise required by client privilege, the Confidential
Information shall be held by the Employee in the strictest confidence and shall
not, without the prior written consent of the Company, be disclosed to any
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person other than in connection with the Employee's employment by the Company.
The Employee further acknowledges that such Confidential Information as is
acquired and used by the Company or its affiliates is a special, valuable and
unique asset. The Employee shall exercise all due and diligence precautions to
protect the integrity of the Company's Confidential Information and to keep it
confidential whether it is in written form, on electronic media or oral. The
Employee shall not copy any Confidential Information except to the extent
necessary to his employment nor remove any Confidential Information or copies
thereof from the Company's premises except to the extent necessary to his
employment and then only with the authorization of an officer of the Company.
All records, files, materials and other Confidential Information obtained by the
Employee in the course of his employment with the Company are confidential and
proprietary and shall remain the exclusive property of the Company or its
customers, as the case may be. The Employee shall not, except in connection with
and as required by his performance of his duties under this Agreement, for any
reason use for his own benefit or the benefit of any person or entity with which
he may be associated or disclose any such Confidential Information to any
person, firm, corporation, association or other entity for any reason or purpose
whatsoever without the prior written consent of an officer of the Company
(excluding the Employee, if applicable).
(d) References to the Company in this Section 8 shall include the
Company's affiliates including the Parent.
9. Equitable Relief.
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(a) The Company and the Employee recognize that the services to be
rendered under this Agreement by the Employee are special, unique and of
extraordinary character, and that in the event of the breach by the Employee of
the terms and conditions of this Agreement or if the Employee, shall cease to be
an employee of the Company for any reason and take any action in violation of
Section 7 and/or Section 8, the Company shall be entitled to institute and
prosecute proceedings in any court of competent jurisdiction referred to in
Section 9(b) below, to enjoin the Employee from breaching the provisions of
Section 7 or Section 8. In such action, the Company shall not be required to
plead or prove irreparable harm or lack of an adequate remedy at law or post a
bond or any security.
(b) Any action must be commenced in Miami-Dade County, Florida. The
Employee and the Company irrevocably and unconditionally submit to the exclusive
jurisdiction of such courts and agree to take any and all future action
necessary to submit to the jurisdiction of such courts. The Employee and the
Company irrevocably waive any objection that they now have or hereafter
irrevocably waive any objection that they now have or hereafter may have to the
laying of venue of any suit, action or proceeding brought in any such court and
further irrevocably waive any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Final
judgment against the Employee or the Company in any such suit shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment, a
certified or true copy of which shall be conclusive evidence of the fact and the
amount of any liability of the Employee or the Company therein described, or by
appropriate proceedings under any applicable treaty or otherwise.
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10. Conflicts of Interest. While employed by the Company, the Employee
shall not, directly or indirectly, unless approved in writing by a member of the
board of directors:
(a) participate as an individual in any way in the benefits of
transactions with any of the Company's suppliers or Customers, including,
without limitation, having a financial interest in the Company's suppliers or
Customers, or making loans to, or receiving loans, from, the Company's suppliers
or Customers;
(b) realize a personal gain or advantage from a transaction in which
the Company has an interest or use information obtained in connection with the
Employee's employment with the Company for the Employee's personal advantage or
gain; or
(c) accept any offer to serve as an officer, director, partner,
consultant, manager with, or to be employed in a technical capacity by, a person
or entity which does business with the Company.
(d) As used in Section 10(a), (b) or (c) (but not the introduction to
Section 10), the Company also includes its affiliates including the Parent.
11. Inventions, Ideas, Processes, and Designs. All inventions, ideas,
processes, programs, software, and designs (including all improvements) (i)
conceived or made by the Employee during the course of his employment with the
Company (whether or not actually conceived during regular business hours) and
for a period of six months subsequent to the termination or expiration of such
employment with the Company and (ii) related to the business of the Company,
shall be disclosed in writing promptly to the Company and shall be the sole and
exclusive property of the Company. An invention, idea, process, program,
software, or design including an improvement) shall be deemed related to the
business of the Company if (a) it was made with the Company's equipment,
supplies, facilities, or Confidential Information, (b) results from work
performed by the Employee for the Company, or (c) pertains to the current
business or demonstrably anticipated research or development work of the
Company. The Employee shall cooperate with the Company and its attorneys in the
preparation of patent and copyright applications for such developments and, upon
request, shall promptly assign all such inventions, ideas, processes, and
designs to the Company. The decision to file for patent or copyright protection
or to maintain such development as a trade secret shall be in the sole
discretion of the Company, and the Employee shall be bound by such decision. The
Employee shall provide as a schedule to this Employment Agreement, a complete
list of all inventions, ideas, processes, and designs, if any, patented or
unpatented, copyrighted or non-copyrighted, including a brief description, which
he made or conceived prior to his employment with the Company and which
therefore are excluded from the scope of this Agreement.
12. Indebtedness. If, during the course of the Employee's employment under
this Agreement, the Employee becomes indebted to the Company for any reason, the
Company may, if it so elects, set off any sum due to the Company from the
Employee and collect any remaining balance from the Employee.
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13. Assignability. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assign shall acquire all
or substantially all of the securities (via merger or otherwise) or assets and
business of the Company. The Employee's obligations hereunder may not be
assigned or alienated and any attempt to do so by the Employee will be void.
14. Severability.
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(a) The Employee expressly agrees that the character, duration and
geographical scope of the non-competition provisions set forth in this Agreement
are reasonable in light of the circumstances as they exist on the date hereof.
Should a decision, however, be made at a later date by a court of competent
jurisdiction that the character, duration or geographical scope of such
provisions is unreasonable, then it is the intention and the agreement of the
Employee and the Company that this Agreement shall be construed by the court in
such a manner as to impose only those restrictions on the Employee's conduct
that are reasonable in the light of the circumstances and as are necessary to
assure to the Company the benefits of this Agreement. If, in any judicial
proceeding, a court shall refuse to enforce all of the separate covenants deemed
included herein because taken together they are more extensive than necessary to
assure to the Company the intended benefits of this Agreement, it is expressly
understood and agreed by the parties hereto that the provisions of this
Agreement that, if eliminated, would permit the remaining separate provisions to
be enforced in such proceeding shall be deemed eliminated, for the purposes of
such proceeding, from this Agreement.
(b) If any provision of this Agreement otherwise is deemed to be
invalid or unenforceable or is prohibited by the laws of the state or
jurisdiction where it is to be performed, this Agreement shall be considered
divisible as to such provision and such provision shall be inoperative in such
state or jurisdiction and shall not be part of the consideration moving from
either of the parties to the other. The remaining provisions of this Agreement
shall be valid and binding and of like effect as though such provision were not
included.
15. Notices and Addresses. All notices, offers, acceptance and any
other acts under this Agreement (except payment) shall be in writing, and shall
be sufficiently given if delivered to the addressees in person, by Federal
Express or similar receipted delivery, by facsimile delivery or, if mailed,
postage prepaid, by certified mail, return receipt requested, as follows:
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To the Company: SFBC Ft. Xxxxx, Inc.
c/o Xx. Xxxxxxx X. Xxxxxx
00000 Xxxxxxxx Xxxx.
Xxxxx, XX 00000
Facsimile: (000) 000-0000
With a Copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, P.A.
0000 Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile (000)000-0000
To the Employee: Xxxxxx Xxxxxxxx, Ph.D.
SFBC/Ft. Xxxxx, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be evidence of successful facsimile delivery. Time shall
be counted to, or from, as the case may be, the delivery in person or by
mailing.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
17. Attorney's Fees. In the event that there is any controversy or
claim arising out of or relating to this Agreement, or to the interpretation,
breach or enforcement thereof, and any action or proceeding is commenced to
enforce the provisions of this Agreement, the prevailing party shall be entitled
to a reasonable attorney's fee, costs and expenses.
18. Governing Law. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
19. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
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20. Additional Documents. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
21. Section and Paragraph Headings. The section and paragraph headings in
this Agreement are for eference purposes only and shall not affect the meaning
or interpretation of this Agreement.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the date and year first above written.
SFBC FT. XXXXX, INC.
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By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx,
Executive Vice President
EMPLOYEE:
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_________________________________ By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, Ph.D.
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