Exhibit 10.8
EMPLOYMENT AND NON-COMPETITION AGREEMENT
BETWEEN
▇▇▇▇▇ ▇▇▇▇
AND
PHARMACEUTICAL RESEARCH ASSOCIATES INC.
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 27th day
of October, 2004 (the "Effective Date"), by and between Pharmaceutical Research
Associates Inc., a Canadian corporation ("Employer"), which is a wholly-owned
subsidiary of PRA International, a Delaware corporation ("PRA International"),
and ▇▇▇▇▇ ▇▇▇▇ ("Employee").
WHEREAS Employee previously entered into an Employment and
Non-Competition Agreement with Employer effective upon June 19, 2004 (the "June
19, 2004 Employment and Non-Competition Agreement");
WHEREAS Employer and Employee desire to enter into a new employment and
non-competition agreement containing new and additional consideration as
described below herein, including but not limited to the Long Term Incentives
stated in Section 4(c) and the Termination Payments in Section 7(g)(B);
WHEREAS by entering into this Agreement, the terms of the Employee's
employment with Employer will be governed by the terms and conditions of this
Agreement, and any other prior agreements between Employee and Employer or
Employer's affiliates relating to the Employee's employment with the Employer or
any of its affiliated entities will be superseded by the terms of this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth below, which consideration is acknowledged by both parties
to be good and sufficient, the parties hereto agree as follows:
1. Position. Employer hereby agrees to employ Employee as of the
Effective Date (as defined herein) and Employee hereby accepts employment as of
the Effective Date in the position of EXECUTIVE VICE PRESIDENT AND CHIEF
SCIENTIFIC OFFICER with appropriate title, rank, status and responsibilities as
determined from time to time by the President and CEO of Employer ("President
and CEO") upon the terms and conditions hereinafter set forth.
2. Employment Period.
(a) The period of employment under this Agreement shall begin on the
Effective Date and shall end on February 28, 2006, unless terminated sooner
pursuant to Section 7 of this Agreement.
(b) The period during which Employee is employed under the terms of
this Agreement is the "Employment Period."
3. Duties. The President and CEO shall have the power to determine the
specific duties that shall be performed by Employee and the means and manner by
which those duties shall be performed, but such duties shall be consistent with
the executive position of Employee.
(a) During the Employment Period, Employee agrees to use his best
efforts in the business of Employer and to devote his full time, skill,
attention and energies to the business of Employer, allowing, however, time for
Permitted Activities as specified in Section 3(c) below. Employee shall not be
engaged in any other business activity which shall be competitive with the
business of Employer (except for activities associated with the Phase I business
of Global Biomedical Capital Corp. as such activities were conducted as of June
19, 2002) or which may (i) interfere with Employee's ability to discharge his
responsibilities to Employer; or (ii) detract from the business of Employer.
Employee shall not:
(i) work either on a part-time or independent contracting basis
for any other company, business or enterprise without the prior written
consent of the President and CEO (excluding (A) teaching, (B) clinical
practice in neuropsychology, (C) activities of Global Biomedical
Capital Corp. or any of its subsidiaries that do not compete with the
business of Employer or any of its affiliates, and (D) those
professional societies, boards or academic appointments on which
Employee serves as of the date of this Agreement listed on Exhibit A
hereto (collectively, the "Permitted Activities"); or
(ii) serve on the board of directors or comparable governing
body of any other material business, civic or community corporation or
similar entity without the prior written consent of the President and
CEO (excluding those positions Employee holds and boards of directors
on which Employee serves as of the date of this Agreement, which
positions and boards, if any, are listed on Exhibit A hereto),
such consent which shall not be unreasonably withheld.
(b) Employee agrees to use his reasonable efforts to impart his
skill and knowledge relating to the business of Employer to such individuals as
are designated by Employer, and to train such individuals in the aspects of the
business with which Employee is familiar. In addition, at the request of
Employer and without
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additional compensation, Employee shall use his best efforts to record and
document his knowledge relating to the business of Employer.
(c) Not withstanding any other provision of this Agreement to the
contrary, in no event shall Employee's commitments, obligations and services
with respect to Permitted Activities (i) exceed thirteen (13) business days each
quarter and (ii) together with the paid time off and vacation days described in
Section 4(d) below, exceed 52 business days each year.
4. Compensation. For all services rendered by Employee under this
Agreement, for, and in consideration of, Employee's agreements and undertaking
contained in this Agreement (including, without limitation, those contained in
Sections 9 and 10 below), and, subject to Sections 7 and 8 below, during the
Employment Period, Employer shall provide Employee with the following:
(a) Base Salary. Employer shall pay to Employee, in equal bi-monthly
installments, a base salary of CAD$375,000 per year, less relevant withholdings.
Employee shall be eligible for salary increases, which may be based on
performance and/or competitive market factors, as determined under the
provisions of any salary policy of Employer that is generally applicable to
Employer's employees, provided that any such increases shall be reviewed and
approved in advance by the Compensation Committee of the Board of Directors of
Employer (the "Board"). Employee shall be eligible for such other increases in
compensation as are otherwise imposed by the Board, in its discretion, from time
to time.
(b) Bonus. Employee shall participate in an Executive Bonus Plan
approved by the Board with a minimum annual bonus target of CAD$145,000 less
relevant withholdings. The performance criteria will be determined by the
Compensation Committee of the Board.
(c) Long Term Incentives. Employee shall participate under the terms
of the PRA International 2004 Incentive Award Plan ("Incentive Award Plan"),
according to the terms set forth in Exhibit B.
(d) Review. It is understood and agreed that the Compensation
Committee of the Board will review compensation matters of Employer on a regular
basis, and will (on at least an annual basis) set all annual bonus targets,
salaries and benefits in which Employee shall be eligible to participate.
5. Benefits. Employee shall be eligible to participate in Employer's
standard benefits programs, which presently include health, life and disability
insurance, and those additional benefits (the "Additional Benefits") currently
offered to Employer's executive staff, including club membership and monthly car
allowance, as described in Exhibit C. It is agreed that the terms of Employer's
standard benefits programs may be amended from time to time by Employer, in its
discretion, provided that there is no material reduction in any of the standard
benefits programs. It is further agreed that the
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nature and amount of the Additional Benefits, if any, shall be determined from
time to time by the Compensation Committee of the Board, in its discretion,
provided that no Additional Benefits (as defined above) will be materially
reduced. Employee shall be entitled to a total of twenty-seven (27) days of paid
time off per year (which number of days shall include any days off associated
with the Permitted Activities, however, paid time off will not accrue to
Employee and Employee will not be entitled to a payout for unused paid time off
in the event of employment termination except as may be required by applicable
legislation. In addition, such paid time off may not be carried forward to a
subsequent year, except as may be required by applicable legislation. In
addition to the paid time off, Employee shall be entitled to twenty-five (25)
days of vacation per year, unless inconsistent with applicable law, and which
cannot be carried forward to a subsequent year, except as may be required by
applicable legislation. Employee shall be covered by the holiday policy of the
Employer and by any other pension or retirement plan, disability benefit plan or
any other benefit plan or arrangement of Employer determined by the Board to be
applicable to Employee.
6. Expense Reimbursement. Subject to such conditions as Employer may
from time to time determine and pursuant to Employer's travel policy then in
place for executives, Employer shall reimburse Employee for reasonable expenses
incurred by Employee in connection with the business of Employer and the
performance of Employee's duties hereunder.
7. Termination. This Agreement may be terminated under the following
circumstances, having the consequences described in Sections 7 and 8:
(a) Death of Employee. This Agreement shall terminate immediately
upon the death of Employee. Should this Agreement be terminated pursuant to this
Section 7(a), Employee shall be entitled to Termination Payments as provided for
in Section 7(g), it being understood that no further payment in respect to such
termination for Death of Employee shall be made or required.
(b) Termination by Employer for Disability of Employee. If during
the Employment Period, Employee shall be prevented from performing his duties
for a continuous period of one hundred and eighty (180) days by reason of
disability that renders Employee physically or mentally incapable of performing
substantially all of his duties under this Agreement (excluding infrequent and
temporary absences due to illness), Employer may terminate Employee's employment
hereunder. If after a period of disability commences (but prior to termination
of Employee's employment), Employee returns to work for a period of at least
twenty (20) consecutive work days, the period of disability shall terminate and
not be counted towards any period of subsequent disability. For purposes of this
Agreement, Employer, upon the advice of a qualified and impartial physician, at
Employer's expense, shall determine whether Employee has become physically or
mentally incapable of performing substantially all of his duties under this
Agreement. Employer shall give Employee (or his guardian, as applicable) sixty
(60) days' written notice of termination of the Employment Period under this
Section 7(b). Should the Employee be terminated pursuant to this Section 7(b),
Employee shall be
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entitled to Termination Payments as provided for in Section 7(g), it being
understood that no further payment in respect to such termination by Employer
for disability of Employee shall be made or required.
(c) Termination by Employer for Cause. Employer may terminate
Employee's employment at any time for Cause. For purposes of this Agreement,
"Cause" includes, but is not limited to: (i) a material breach of this Agreement
by Employee (where Employee fails to cure such breach within ten (10) business
days after being notified in writing by Employer of such breach); (ii)
Employee's willful failure to perform his material assigned duties without an
excuse that is reasonably acceptable to Employer; (iii) Employee engages in an
act (or causes an act) that has a material adverse impact on the reputation,
business, business relationships or financial condition of Employer; (iv) the
conviction of Employee for a criminal or summary conviction offence that is
related to Employee's employment; (v) misappropriation or embezzlement by
Employee of funds or assets of Employer; or (vi) Employee's willful refusal to
perform specific directives of the President and CEO which are consistent with
the scope, ethics and nature of Employee's duties and responsibilities
hereunder. Notwithstanding the foregoing, "Cause" shall not include a situation
whereby Employer asks Employee to be based at any office or location or to
relocate to any location other than within 20 miles of Employee's then current
location and Employee declines to do so. Termination by Employer for Cause
hereunder shall not abrogate the rights and remedies of Employer in respect of
the breach or wrongful act giving rise to such termination. In the event of
termination by Employer for Cause, Employee shall receive any and all accrued
but unpaid base salary compensation and vacation pay due to Employee as of the
Termination Date, it being understood that no further payment in respect to such
termination for Cause shall be made or required.
(d) Termination by Employer without Cause. This Agreement may be
terminated by Employer for reasons other than death, disability or Cause upon
sixty (60) days' written notice given to Employee or, at the sole discretion of
Employer, sixty (60) days' base salary in lieu of notice. Should the Employee be
terminated pursuant to this Section 7(d), Employee shall be entitled to
Termination Payments as provided for in Section 7(g), it being understood that
no further payment in respect to such termination without Cause shall be made or
required.
(e) Termination by the Employee without Good Reason. This Agreement
may be terminated by Employee upon sixty (60) days' written notice given to
Employer. The sixtieth (60th) day after giving of such notice shall be the
Employee's Termination Date. In the event of termination by Employee without
Good Reason, Employee shall receive any and all accrued but unpaid base salary
compensation and (including accrued paid time off, as applicable) due to
Employee as of the Termination Date.
(f) Termination by Employee for Good Reason. This Agreement may be
terminated by Employee at any time for Good Reason. For purposes
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of this Agreement, "Good Reason" shall mean (i) any material breach of this
Agreement by Employer (where Employer fails to cure such breach within ten (10)
business days after being notified in writing by Employee of such breach); (ii)
the diminution, without Employee's written consent, of Employee's position,
title, authority, duties or responsibilities as indicated in this Agreement; or
(iii) the Company requiring the Employee, without Employee's written consent, to
be based at any office or location or to relocate to any location other than
within 20 miles of Employee's then current location. Termination by Employee
hereunder in this Section 7(f) shall not abrogate the rights and remedies of
Employee in respect of the breach giving rise to such termination.
(g) Termination Payments.
A. If Employee's employment is terminated pursuant to Section
7(a) (Employee's Death), 7(b) (by Employer for Employee's Disability), 7(d) (by
Employer without Cause) or 7(f) (by Employee for Good Reason) (each of the
circumstances in this Section 7(g)(A) being known as a "Termination Event"),
Employer shall provide Employee (or, in the case of his death, his estate, heirs
or legal representatives) the following (collectively, the "Termination
Payments"):
(i) any and all accrued but unpaid base salary compensation
(including accrued paid time off, as applicable) due to Employee
as of the date on which the Employment Period ends (the
"Termination Date"), which shall be paid on the Termination
Date; and
(ii) Employee's full base salary (payable bi-monthly at the
same time Employee would otherwise receive such base salary if
Employee were still employed by Employer) for twelve (12) months
after the Termination Date; and
(iii) health benefits for twelve (12) months after the
Termination Date pursuant to any of Employer's health benefit
plan under which Employee was receiving coverage during
the Employment Period, provided such continued participation is
permitted under the terms of the plans and by applicable law.
B. If a Termination Event (other than the death of Employee as
specified in Section 7(a)) occurs within twelve months after a Change in
Control, then Employee is entitled to the Termination Payments as stated in
Section 7(g)(A)(i) (ii) and (iii) above, except that the period for which salary
and benefits are provided in Sections 7(g)(A)(ii) and (iii) shall be twenty-four
(24) months, and all payments to be made pursuant to those sections shall be
paid to Employee in a lump sum within fifteen (15) days after the Termination
Event. For purposes of this Section and this Agreement, "Change in Control"
shall mean: (i) the sale of all or substantially all of the assets of PRA
International; or (ii) the consummation of a merger or consolidation of PRA
International with any other corporation other than (A) a merger or
consolidation which would result in the voting securities of PRA International
outstanding immediately prior thereto continuing to represent more than fifty
percent (50%) of the combined voting power of the voting securities of PRA
International, or such surviving entity, outstanding immediately after such
merger or consolidation, or (B) a merger or consolidation effected to implement
a recapitalization of PRA International (or similar transaction) in which no
"person" (as defined below) acquires more than thirty percent (30%) of the
combined voting power of PRA International's then-outstanding securities; or
(iii) any "person," as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than (1)
PRA International or (2) any corporation owned, directly or indirectly, by PRA
International or the shareholders of PRA International in substantially the same
proportions as their ownership of stock in PRA International), becomes after the
Effective Date the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of PRA International
representing thirty percent (30%) or more of the combined voting power of PRA
International's then outstanding securities.
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C. The severance amounts in Sections 7(g)(A) and 7(g)(B) above
are inclusive of any payments and/or benefit continuation that may be required
by applicable employment standards legislation and have been agreed upon with
reference to Employee's length of service with Employer. Employee further agrees
that except as set out in the Agreement, Employee is not entitled to any further
notice, pay in lieu of notice, or other payments in respect of a termination
under Section 7.
D. Employer's obligation to make any Termination Payments
provided in Section 7(g)(A) and (B) over and above Employee's employment
standards legislation is conditioned upon Employee's execution of a general
release in the reasonable form provided by Employer at the Termination Date.
(h) Tax Provisions. In the event that any payments under this
Agreement or any other compensation, benefit or other amount from Employer for
the benefit of Employee are subject to the tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") or, if applicable, the
Canadian equivalent thereof (including any applicable interest and penalties,
the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced
(except for required tax withholdings) and Employer shall pay to Employee by the
earlier of the date such Excise Tax is withheld from payments made to Employee
or the date such Excise Tax becomes due and payable by Employee, an additional
amount (the "Gross-Up Payment") such that the net amount retained by Employee
(after deduction of any Excise Tax on the Parachute Payments, taxes based upon
the Tax Rate (as defined below) upon the payment provided for by this Section
7(h) and Excise Tax upon the payment provided for by this Section 7(h)), shall
be equal to the amount Employee would have received if no Excise Tax had been
imposed. A tax counsel chosen by the Employer's independent auditors, provided
such person is reasonably acceptable to the Employee ("Tax Counsel"), shall
determine in good faith whether any of the Parachute Payments are subject to the
Excise Tax and the amount of any Excise Tax, and Tax Counsel shall promptly
notify Employee of its determination. Employer and Employee shall file all tax
returns and reports regarding such Parachute Payments in a manner consistent
with Employer's reasonable good faith determination. For purposes of determining
the amount of the Gross-Up Payment, Employee shall be deemed to pay taxes at the
Tax Rate applicable at the time of the Gross-Up Payment. In the event that the
Excise Tax is subsequently determined to be less than the amount taken into
account hereunder at the time a Parachute Payment is made, Employee shall repay
to Employer promptly following the date that the amount of such reduction in
Excise Tax is finally determined the portion of the Gross-Up Payment
attributable to such reduction (without interest). In the event that the Excise
Tax is determined to exceed the amount taken into account hereunder at the time
a Parachute Payment is made (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up Payment),
Employer shall pay the Employee an additional amount with respect to the
Gross-Up Payment in respect of such excess (plus any interest or penalties
payable in respect of such excess) at the time that the amount of such excess is
finally determined. Employer shall reimburse Employee for all reasonable fees,
expenses, and costs related to determining the reasonableness of Employer's
position in connection with this paragraph and preparation of any tax return
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or other filing that is affected by any matter addressed in this paragraph, and
any audit, litigation or other proceeding that is affected by any matter
addressed in this Section 7(h) and an amount equal to the tax on such amounts at
Employee's Tax Rate. For the purposes of the foregoing, "Tax Rate" means the
Employee's effective tax rate based upon the combined federal and state and
local income, earnings, Medicare and any other tax rates applicable to Employee,
all at the highest marginal rate of taxation in the country and state of
Employee's residence on the date of determination, net of the reduction in
federal income taxes which could be obtained by deduction of such state and
local taxes.
8. Survival of Sections of this Agreement. Without regard to the reason
for termination of this Agreement or the employment of Employee, and
notwithstanding anything contained in this Agreement to the contrary, it is
expressly understood and agreed that Employee's obligations under Sections 9,
10, 11 and 12 of this Agreement shall survive termination of this Agreement in
any and all events.
9. Confidential Information and Certain Property Matters.
(a) Employee recognizes that information, knowledge, contacts and
experience relating to the businesses, operations, properties, assets,
liabilities and financial condition of Employer and the markets and industries
in which it operates, including, without limitation, information relating to
business plans and ideas, trade secrets, intellectual property, know-how,
formulas, processes, research and development, methods, policies, materials,
results of operations, financial and statistical data, personnel data and
customers in and related to the markets and industries in which Employer
operates ("Confidential Information"), is considered by Employer to be valuable,
secret, confidential and proprietary. Employee hereby acknowledges and agrees
that the Confidential Information is valuable, secret, confidential and
proprietary to Employer, and further agrees that he shall not, at any time
(whether during or after the Employment Period), make public, disclose, divulge,
furnish, release, transfer, sell or otherwise make available to any person any
of the Confidential Information, or otherwise use or disclose any of the same or
allow any of the same to be used or disclosed for any purpose, other than as may
be permitted to Employee under this Agreement. Notwithstanding the foregoing,
Employee may, without violating this Section 9(a), disclose Confidential
Information if (i) such disclosure is required to comply with a valid court
order or any administrative law order or decree; (ii) Employee gives Employer
advance written notice of the required disclosure so that Employer may, if it
wishes, seek an appropriate protective order; and (iii) Employee, in any event,
requests that any disclosed information be afforded confidential treatment, to
the greatest extent possible.
(b) Employee shall fully disclose to Employer all Inventions made or
conceived by him during the Employment Period that would be deemed applicable,
useful or otherwise beneficial to or in respect of the current business of
Employer, in whole or in part. "Inventions" include, but are not limited to,
customer list compilations, machinery, apparatus, products, processes, results
of research and
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development (including without limitation results that constitute trade secrets,
ideas and writings), computer hardware, information systems, software (including
without limitation source code, object code, documentation, diagrams and flow
charts) and any other discoveries, concepts and ideas, whether patentable or not
(including without limitation processes, methods, formulas, and techniques, as
well as improvements thereof or know-how related thereto, concerning any present
or prospective business activities of Employer), but do not include Inventions
made or conceived during or as a result of Employee's Permitted Activities
except if any such Inventions are related to the business of Employer or any of
its affiliates. Any and all Inventions shall be the absolute property of
Employer or its designees, and Employee acknowledges that he shall have no
interest whatsoever in such Inventions. At the request of Employer and without
additional compensation, Employee (i) shall make application in due form for
United States letters patent and Canada and foreign letters patent on such
Inventions, and shall assign to Employer all his right, title and interest in
such Inventions; (ii) shall execute any and all instruments and do any and all
acts necessary or desirable in connection with any such application for letters
patent or in order to establish and perfect in Employer the entire right, title
and interest in such Inventions, patent applications or patents; and (iii) shall
execute any instruments necessary or desirable in connection with any
continuations, renewals or reissues thereof or in the conduct of any related
proceedings or litigation. Except as authorized by Employer in writing, Employee
shall not disclose, directly or indirectly, to any person other than Employer,
any information relating to any Invention or any patent application relating
thereto.
(c) Employee hereby acknowledges and agrees that the work performed
by Employee pursuant to his employment by Employer will be specifically ordered
or commissioned by Employer, and that such work shall be considered a performed
"contract of service" as defined in the Copyright Act, R.S.C. 1985.c. C-42 (the
"Act") granting Employer full ownership to the work and all rights comprised
therein. In addition, Employee hereby waives in favor of Employer any and all
moral rights in the work as that term is defined in the Act that Employer now
has or in the future may have. Should any work not fall within the definition of
a "contract of service" as set forth in such Act, Employee hereby transfers and
assigns to Employer full ownership of the copyright to the work and all rights
comprised therein. Employee shall sign all applications for registration of such
copyright as are requested by Employer, and shall sign all other writings and
instruments and perform all other acts necessary or desirable to carry out the
terms of this Agreement.
10. Non-Competition and Non-Solicitation
(a) Employee agrees that during the Employment Period and for a
period of twelve (12) months after Employee's employment with Employer ceases,
for whatever reason (the "Noncompetition Period"), Employee will not, within the
country where Employee's office with Employer was located at the Termination
Date, whether as owner, manager, officer, director, employee, consultant or
otherwise, be engaged or employed by a Competing CRO to provide Customer
Services that are the
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same or substantially similar to the Customer Services that Employee performed
for Employer at any time during the twenty-four (24) months prior to the
Termination Date.
Employer acknowledges and agrees that ownership by Employee of not more than one
percent (1.0%) of the shares of any corporation having a class of equity
securities actively traded on a securities exchange or on the Nasdaq Stock
Market shall not be deemed, in and of itself, to violate the prohibitions set
forth in this section.
For the purposes of this Agreement, the term "CUSTOMER SERVICES" means any
product or service provided by Employer to a third party for remuneration,
including, but not limited to, on a contract or outsourced basis, assisting
pharmaceutical or biotechnology companies in developing and taking drug
compounds, biologics, and drug delivery devices through appropriate regulatory
approval processes, (i) during the Employment Period or (ii) about which
Employee has material knowledge and that Employee knows Employer will provide or
has contracted to provide to third parties during the twelve (12) months
following the Employment Period. "CUSTOMER" means any person or legal entity
(and its subsidiaries, agents, employees and representatives) about whom
Employee has acquired material information based on employment with Employer and
as to whom Employee has been informed that Employer provides or will provide
Customer Services. "COMPETING CRO" means any of the following entities and their
affiliates and successors to the extent that and for so long as those said
entities, affiliates, and successors directly compete with Employer in the
provision of Customer Services to Customers: ▇▇▇▇▇▇▇ River Laboratories
International, Inc., Covance Inc., ICON plc, ▇▇▇▇▇▇ International Inc., MDS
Pharma Services, PAREXEL International Corporation, Pharmaceutical Product
Development, Inc., PharmaNet, Quintiles Transnational Corp., and United
HealthCare Corporation.
(b) Employee agrees that he shall not, during the Noncompetition
Period, directly or indirectly, whether as owner, manager, officer, director,
employee, consultant or otherwise, solicit the business of, or accept business
from any Customer of Employer at the Termination Date of this Agreement, unless
the business being solicited or accepted is not in competition with or
substantially similar to Employer's Customer Services.
(c) Employee agrees that he shall not, during the Noncompetition
Period, directly or indirectly, solicit or induce (or attempt to solicit or
induce) to leave the employ of Employer or any of its affiliates for any reason
whatsoever any person employed by Employer or any of its affiliates at the time
of the act of solicitation or inducement.
(d) During and after the Employment Period, Employee agrees not to
disparage Employer or any of its affiliates. During and after the Employment
Period, the officers with whom Employer worked in the twenty four (24) months
prior to the Termination Date agrees not to disparage the character of Employee.
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(e) Employee hereby specifically acknowledges and agrees that the
provisions of this Section 10 are reasonable and necessary to protect the
legitimate interests of Employer, and that Employee desires to agree to the
provisions of this Section 10. In the event that any of the provisions of this
Section 10 should ever be held to exceed the time, scope or geographic
limitations permitted by applicable law, it is hereby declared to be the
intention of the parties hereto that such provision be reformed to reflect the
maximum time, scope and geographic limitations that are permitted by such law.
(f) Employee hereby acknowledges and agrees that, owing to the
special, unique and extraordinary nature of the matters covered by this Section
10, in the event of any breach or threatened breach by Employee of any of the
provisions hereof, Employer would suffer substantial and irreparable injury,
which could not be fully compensated by monetary award alone, and Employer would
not have adequate remedy at law. Therefore, Employee agrees that, in such event,
Employer shall be entitled to temporary and/or permanent injunctive relief
against Employee, without the necessity of proving actual damages or of posting
bond to enforce any of the provisions of this Section 10, and Employee hereby
waives the defenses, claims, or arguments that the matters are not special,
unique, and extraordinary, that Employer must prove actual damages, and that
Employer has an adequate remedy at law.
(g) Employee further agrees that the rights and remedies described
in this Section 10 are cumulative and shall be in addition to and not in lieu of
any other rights and remedies otherwise available under this Agreement, or at
law or in equity, including but not limited to monetary damages.
(h) Notwithstanding any other provision of this Agreement, Employee
further agrees that in the event of any breach by Employee of any of the
provisions of this Section 10, all obligations and liabilities of Employer under
this Agreement (including, but not limited to, Sections 6 and 7 hereof) shall
immediately terminate and be extinguished with the exception of any payments
owing under applicable employment standards legislation. For greater certainty,
a breach of Section 10 by Employee does not relieve Employee from compliance
with the terms of this Agreement.
(i) Employee agrees that Employer shall have the right to disclose
this Agreement or its contents to any future employer of Employee for the
purpose of providing notice of the post-employment restrictions contained
herein. Employer shall provide Employee with written notice if and when Employer
discloses the existence of this Agreement to any future employer of Employee.
11. Records. Upon termination of this Agreement for any reason,
Employee shall promptly deliver to Employer all property of Employer then in
Employee's possession or under his control, including but not limited to: (i)
any and all correspondence, mailing lists, drawings, blueprints, manuals,
letters, records, notes,
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notebooks, reports, flow-charts, programs, proposals, computer tapes, discs and
diskettes; (ii) any and all documents concerning or relating to Employer's
business, clients, customers, investors or lenders, or concerning products,
processes or technologies used by Employer; and (iii) any and all documents or
materials containing or constituting Confidential Information.
12. Arbitration. Except with respect to any attempt to obtain
preliminary injunctive relief to enforce the post-employment restrictive
provisions of this Agreement (in which case any such matter may be brought
initially in a court of competent jurisdiction for purposes of resolving any
request for preliminary injunctive relief), all disputes between Employer and
Employee hereunder, or otherwise arising out of the employment or termination of
employment of Employee, including but not limited to disputes arising under any
applicable employment discrimination law, shall be settled by arbitration
pursuant to the rules of the American Arbitration Association, in Vancouver,
British Columbia. Arbitration hereunder shall be by a single arbitrator
appointed by mutual agreement of the parties. The single arbitrator shall have
the authority to summarily dismiss any claim or claims brought in arbitration
prior to a hearing on the merits. The award rendered by the arbitrator shall be
conclusive and binding upon the parties hereto. Each party shall pay its own
expenses of arbitration and the expenses of the arbitrator shall be equally
shared.
13. Full Settlement; Mitigation, Costs after a Change in Control. In no
event shall Employee be obligated to seek other employment or take any other
action by way of mitigation of the amounts (including amounts for damages for
breach) payable to Employee under any of the provisions of this Agreement, and
such amounts shall not be reduced whether Employee obtains other employment. In
addition, following a Change in Control only, Employer's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which Employer may have against Employee
or others. Notwithstanding any other provisions in this Agreement to the
contrary, in the event that, following a Change in Control, any successor in
interest to Employer unsuccessfully contests and/or challenges any of Employer's
rights under this Agreement, then the successor in interest to Employer shall
pay Employee's reasonable attorney's fees and costs incurred in such contest or
challenge.
14. Entire Agreement. This Agreement (together with Exhibits A, B, and
C hereto) supersedes and terminates any and all prior agreements or contracts,
written or oral, entered into between Employer and Employee with regard to the
subject matter hereof. Employee acknowledges and agrees that Employee is not
entitled to any salary, bonus, benefits, severance, deferred compensation or
similar payments from Employer or any of its affiliates except as expressly set
forth herein. This instrument contains the entire agreement between Employer and
Employee regarding the employment of Employee by Employer, and any
representation, promise or condition in connection therewith not in writing
shall not be binding upon either party. No
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amendment, alteration or modification of this Agreement shall be valid unless in
each instance such amendment, alteration or modification is expressed in a
written instrument duly executed in the name of the party or parties making such
amendment, alteration or modification.
15. Severability. The provisions of this Agreement shall be deemed
severable, and if any part of any provision is held to be illegal, void,
voidable, invalid, nonbinding or unenforceable in its entirety or partially or
as to any party, for any reason, such provision may be changed, consistent with
the intent of the parties hereto, to the extent reasonably necessary to make the
provision, as so changed, legal, valid, binding and enforceable. If any
provision of this Agreement is held to be illegal, void, voidable, invalid,
nonbinding or unenforceable in its entirety or partially or as to any party, for
any reason, and if such provision cannot be changed consistent with the intent
of the parties hereto to make it fully legal, valid, binding and enforceable,
then such provision shall be stricken from this Agreement, and the remaining
provisions of this Agreement shall not in any way be affected or impaired, but
shall remain in full force and effect.
16. Governing Law. This Agreement is to be governed by and interpreted
under the laws of the Province of British Columbia and the laws of Canada,
applicable therein.
17. Headings; Form of Words. The headings contained in this Agreement
have been inserted for the convenience of reference only, and neither such
headings nor the placement of any term hereof under any particular heading shall
in any way restrict or modify any of the terms or provisions hereof. Terms used
in the singular shall be read in the plural, and vice versa, and terms used in
the masculine gender shall be read in the feminine or neuter gender when the
context so requires. The term "person" as used herein refers to a natural
person, a corporation, a limited liability company, a partnership, a joint
venture, or other entity or association, as the context requires.
18. Notices. All notices, requests, consents, payments, demands and
other communications required or contemplated under this Agreement ("Notices")
shall be in writing and (a) personally delivered; (b) deposited in the mail,
registered or certified mail, return receipt requested, with postage prepaid; or
(c) sent by Federal Express or other internationally recognized overnight
delivery service (for next business day delivery), shipping prepaid, as follows:
If to Employer, to:
Pharmaceutical Research Associates, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President and Chief Executive Officer
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With a copy (which shall not constitute notice) to :
The Chairman of the Board at that person's then current business
address
If to Employee, to:
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
or such other persons or address as any party may request by notice given as
aforesaid. Notices shall be deemed given and received at the time of personal
delivery or, if sent by mail, five (5) business days after the date mailed in
the manner set forth in this Section 18, or, if sent by Federal Express or other
nationally recognized overnight delivery service, one business day after such
sending.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of Employee and Employee's heirs and legal representatives
and Employer and its successors and assigns. Employee's rights and obligations
under this Agreement are personal to Employee and shall not be assignable or
transferable by Employee (except that Employee's rights may be transferred upon
his death by will, trust, or the laws of intestacy). Employer shall require any
successor (whether direct or indirect, by purchase, merger, consolidation, share
exchange or otherwise) to all or substantially all of the business and/or assets
of Employer to expressly assume in writing and agree to perform this Agreement
in the same manner and to the same extent that Employer would be required to
perform it if no such succession had taken place, except that no such assumption
and agreement will be required if the successor is bound by operation of law to
perform this Agreement. In this Agreement, the term "Employer" shall include any
successor to Employer's business and assets that assumes and agrees to perform
this Agreement (either by agreement or by operation of law).
21. Cooperation. Each party to this Agreement agrees to cooperate with
the other party hereto to carry out the purpose and intent of this Agreement,
including without limitation the execution and delivery to the appropriate party
of all such further documents as may reasonably be required in order to carry
out the terms of this Agreement.
22. Waiver. Any waiver of any provision hereof (or in any related
document or instrument) shall not be effective unless made expressly and in a
writing executed in the name of the party sought to be charged. The failure of
any party to insist,
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in any one or more instances, on performance of any of the terms or conditions
of this Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or of the future performance of any such term, covenant
or condition, but the obligations of the parties with respect thereto shall
continue in full force and effect.
23. Indemnification. Employee shall be entitled to be indemnified by
Employer to the fullest extent permitted by the applicable business corporations
statute, consistent with Employer's Articles of Incorporation. Employer further
agrees to indemnify Employee to the extent permitted under applicable law for
all actions taken in good faith within the scope, and in the course, of
Employee's employment under this Agreement during the Employment Period for the
life of any claim.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
Employer: PHARMACEUTICAL RESEARCH
ASSOCIATES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Print Title: President and CEO
Employee: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Print Name ▇▇▇▇▇ ▇▇▇▇
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EXHIBIT A
Positions and Boards of Directors on which Employee Serves as of the Date of
this Agreement
ACADEMIC APPOINTMENTS
- Professor, University of Ottawa
BOARD OF DIRECTORS
- Global Biomedical Capital Corp.
- Aspreva Pharmaceuticals (Chairman of Clinical Development Committee)
- Vizon SciTech Inc.
- BC Research Inc.
- PrimeTrials Inc.
- MedGenesis Therapeutix Inc.
ADVISORY BOARDS
- Pfizer Canada
- Novartis Canada
PROFESSIONAL SOCIETIES
- Institute of Neuropscyhology
- Collegium Internationale Neuro-Psychopharmacologicum
- International Psychogeriatric Associate
- C5R (Canadian Consortium of Clinical Centers for Cognitive Research)
- College of Psychologist of British Columbia
- American Academy of Neurology
- Canadian College of Neuropsychopharmacology
- Movement Disorders Society
- Canadian Psychological Association
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EXHIBIT B
Incentive Award Plan
Employee is eligible to participate, at Employee's election, in the
Incentive Award Plan as follows:
First, upon the initial public offering ("IPO") being effective and
following a 4-1 stock split, Employee will be granted 50,000 PRA International
stock options at the IPO effective strike price. All matters involving the PRA
International stock options, including but not limited to their vesting, their
exercise, and their termination will be governed by the terms of the Incentive
Award Plan and an option agreement to be entered into by Employee in a form
provided by PRA International.
Second, upon the IPO becoming effective and beginning in 2005 under the
PRA International Management Stock Purchase Plan ("MSPP"), Employee will be
provided the opportunity to purchase PRA International stock in the form of
Restricted Stock Units ("RSUs") with Employer matching in additional stock 100%
of the purchase amount. As part of the MSPP, Employee has the opportunity to
voluntarily purchase RSUs on a pre-tax basis by allocating and deferring a
portion of Employee's annual final cash bonus into the plan in advance of the
plan year. The deferral amount would be capped at a maximum of 50%. All matters
involving the MSPP will be governed by the terms of the MSPP plan documents.
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EXHIBIT C
Additional Benefits
-------------------
Annual Car Allowance: CAD$12,882
Annual Club Membership: CAD$1,932
19