EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") entered into as of this
6th day of September, 2002, between SFBC New Drug Services, Inc., a Florida
corporation (the "Company") and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive").
WHEREAS, in its business, the Company has acquired and developed
certain trade secrets, including but not limited to proprietary processes,
information related to customers and prospective customers, 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,
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 executives, officers, and directors, which necessarily will be
communicated to the Executive 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 Executive, its trade secrets and
Confidential Information, and its substantial relationships with vendors, 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
Executive during the term of this Agreement and following (for a reasonable
time) termination of this Agreement; and
WHEREAS, the Company desires to employ the Executive and to ensure the
continued availability to the Company of the Executive's services, and the
Executive 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 Executive agree as follows:
1. Representations and Warranties. The Executive 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 (ii) is not subject to any written confidentiality or
nonuse/nondisclosure agreement affecting his employment with the Company, and
(iii) has brought to the Company no trade secrets, confidential business
information, documents, or other personal property of a prior employer other
than those of New Drug Services, Inc. which the Company is acquiring pursuant to
the terms of the Asset Agreement (as defined herein).
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2. Term of Employment.
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(a) Term. The Company hereby employs the Executive, and the
Executive hereby accepts employment with the Company for a period commencing on
the date of this Agreement and ending five years from the date of this
Agreement.
(b) Continuing Effect. Notwithstanding any termination of this
Agreement except for termination under Section 6(b), 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 Executive.
3. Duties.
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(a) General Duties. The Executive shall serve as the chief
executive officer of the Company with duties and responsibilities that are
customary for such executives. Subject to the authority of the board of
directors of the Company to set policy and ensure that the business is
effectively managed and operated, the Executive shall be responsible for
management of the business of the Company and have such other powers as are
customarily exercised by persons with similar titles. The Executive shall also
perform services for the Company's subsidiaries and SFBC Charlotte, Inc. as
directed by the Company's board of directors. The Executive shall use his best
efforts to perform his duties and discharge his responsibilities pursuant to
this Agreement competently, carefully and faithfully. In determining whether or
not the Executive has used his best efforts hereunder, the Executive's and the
Company's delegation of authority and all surrounding circumstances shall be
taken into account and the best efforts of the Executive shall not be judged
solely on the Company's earnings or other results of the Executive's
performance.
(b) Devotion of Time. Subject to the last sentence of this
Section 3(b), the Executive shall devote substantially 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 Executive
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.
Notwithstanding the above, the Executive shall be permitted to devote a limited
amount of his time during business hours, without compensation, to professional,
charitable or similar organizations and to passive investment activities which
do not inhibit or interfere with the performance of Executive's duties
hereunder.
(c) Location of Office. The Executive's principal business
office shall be at the Company's Kennett Square, Pennsylvania office, as it may
change from time to time by mutual agreement of the parties. However, the
Executive's job responsibilities shall include all business travel necessary to
the performance of his job. In any event, the Executive's services shall be
supervised by ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, executive vice president of clinical
operations of the Company's Parent, SFBC International, Inc. (the "Parent"), who
performs his duties under the direction of the board of directors of the Company
located in Miami, Florida. As such, the Executive shall regularly transact
business with or in Miami-Dade County, Florida in furtherance of his duties.
(d) Adherence to Inside Information Policies. The Executive
acknowledges that the Parent, is publicly-held and, as a result, has implemented
inside information policies designed to preclude its executives 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, the Parent or any third party. The Executive shall
promptly execute any agreements generally distributed by the Company 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) Base Salary. For the services of the Executive to be
rendered under this Agreement, the Company shall pay the Executive an annual
salary of $200,000 during the Term, payable in accordance with the Company's
normal payroll practices (the "Base Salary").
(b) Discretionary Bonus. The Executive shall be eligible to
receive an annual bonus in an amount to be determined by the board of directors
based on any criteria or factors the board of directors deems appropriate.
(c) Stock Options. The Parent shall grant the Executive 55,000
10-year stock options to purchase the Parent's common stock under the Parent's
1999 Second Amended and Restated Stock Option Plan (the "Plan") pursuant to
Parent's standard stock option agreement which the parties shall execute
simultaneously herewith.
(d) Expenses. In addition to any compensation received
pursuant to Section 4(a) and (b), the Company will reimburse or advance funds
(in accordance with applicable securities laws) to the Executive for all
reasonable travel, entertainment and miscellaneous expenses incurred in
connection with the performance of his duties under this Agreement, provided
that the Executive properly provides a written accounting of such expenses to
the Company in accordance with the Company's practices. Such reimbursement or
advances will be made in accordance with policies and procedures of the Company
in effect from time to time relating to reimbursement of or advances to
Executive officers.
5. Benefits.
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(a) Vacation and Sick Leave. For each 12-month period during
the Term, the Executive 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 Executive may select and the affairs of the
Company may permit. The Executive shall be entitled to sick leave each year in
accordance with policies established by the board of directors which shall be
comparable to other executives such as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
(b) Employee Benefit Programs. The Executive is entitled to
participate in any pension, 401(k), insurance or other employee benefit plan
that is maintained by the Company for its executives, 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 Executive, his spouse and his minor
children and pay the premiums or reimburse the Executive for disability
insurance under the Executive's current disability insurance policy in an amount
equal to the maximum allowed by the insurance company.
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(d) Travel to Scientific Shows or Conventions. Upon receipt
of appropriate documentation, the Company shall reimburse the Executive for the
cost to attend scientific shows or conventions.
(e) Professional Dues. The Company shall reimburse the
Executive for reasonable costs of professional licenses and dues related to his
employment.
(f) Automobile. The Company shall pay the Executive an
automobile allowance of $600.00 per month.
6. Termination.
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Capitalized terms used in this Section 6 but not otherwise
defined, shall have the meaning ascribed to such term under that certain Asset
Purchase Agreement dated as of September, 6, 2002 by and among New Drug
Services, Inc., its Stockholders, the Company and the Parent (the "Asset
Agreement").
(a) Definitions. For purposes of this Section 6:
(i) "Cause" shall mean: (1) the Executive is
convicted of a felony which is related to the Executive's employment or the
business of the Company; (2) the Executive, in carrying out his duties
hereunder, has been found in a civil action to have committed gross negligence
or intentional misconduct resulting, in either case, in material harm to the
Company; (3) willful and material failure to perform his duties of employment
hereunder or comply with the written directives of the Company's board of
directors; or (4) the Executive has been found in a civil action to have
materially breached any provision of Section 6 or Section 7 and to have caused
material harm to the Company. The term "found in a civil action" shall not apply
until all appeals permissible under the applicable rules of procedure or
statutes have been determined and no further appeals are permissible.
(ii) "Good Reason" shall mean (1) an event whereby the
Executive, with or without a change in title or formal corporate action, shall
no longer exercise all of the duties and responsibilities and shall no longer
possess substantially all the authority in Section 3(a) above, (2) the Company's
material breach of this Agreement, (3) the Executive's Base Salary is reduced to
less than $200,000 for any twelve (12) month period, or (iv) the requirement by
the Company that the Executive move his regular place of work more than
twenty-five (25) miles from Kennett Square, PA.
(iii) "Change of Control". The following shall
constitute a Change of Control: (1) both ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ cease working for the Parent, or an event shall occur whereby both ▇▇.
▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇, with or without a change in title or formal corporate
action, shall no longer exercise all of their respective duties and
responsibilities as set forth in their employment agreements and shall no longer
possess substantially all the authority as described in their respective
agreements; (2) a merger or consolidation of the Company with or into another
entity (other than SFBC Charlotte, Inc. or any other wholly-owned subsidiary of
the Parent) whereby the Company is not the surviving entity, or (3) the sale of
all or substantially all of the assets of the Parent or the Company to another
entity, or (4) a transaction whereby any entity or person not now an executive
officer or director of the Parent or the Company becomes, either individually or
as part of a group, a direct beneficial owner of 50.1% of the Common Stock of
the Purchaser.
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(b) Death or Disability. Except as otherwise provided in this
Agreement, this Agreement shall automatically terminate without act by any party
upon the death, or disability of the Executive. For purposes of this Section
6(b), "disability" shall mean that for a period of sixty (60) consecutive days
or one hundred twenty (120) aggregate days in any 12-month period, the Executive
is incapable of substantially fulfilling the duties set forth in Section 3
because of physical, mental or emotional incapacity resulting from injury,
sickness or disease. For purposes of this Section 6(b), any usage of drugs or
alcohol as described in Section 6(b) shall not be defined as a disability,
sickness or disease. In the event of death of the Executive, the Executive's
estate shall receive any unpaid, earned compensation due the Executive and this
Agreement shall terminate. In the event this Agreement is terminated pursuant to
this Section 6(b), in addition to any other terms contained in this Agreement,
the Company shall pay any and all Earn-Out payments when due under the Asset
Agreement.
(c) Termination for Cause by the Company. The Company may
terminate the Executive's employment pursuant to the terms of this Agreement at
any time for Cause by giving written notice of termination. Such termination
shall become effective upon the giving of such notice. Notwithstanding the
foregoing, for termination for Cause pursuant to Section 6(a)(i)(3) above, the
Executive shall have 10 days from the date of written notice to cure any alleged
breach. Upon any such termination for Cause, the Executive shall have no right
to compensation, or reimbursement under Section 4, or to participate in any
Executive benefit programs under Section 5, except as provided by law, for any
period subsequent to the effective date of termination.
(d) Termination by the Company for Cause or Termination by
Executive Without Good Reason. In the event the Executive is terminated for
Cause, or the Executive terminates his employment without Good Reason: (i) all
future Earn-Out payments shall be forfeited, (ii) any and all Earn-Out payments
received by the Executive from the Company within sixty (60) days of the date of
termination shall be repaid by the Executive to the Company, (iii) all
unexercised options granted to the Executive under the Plan shall expire as of
the date of termination, and (iv) any and all shares of the Parent's common
stock held by the Executive that are subject to, and have not been released
from, that certain lock-up agreement executed in connection with the Asset
Agreement (the "Lock-up Agreement"), as of the date of termination, shall be
offered by the Executive for sale to the Company and the Parent for a price
equal to the par value of such shares of common stock.
(e) Termination by the Company Without Cause or Termination by
the Executive for Good Reason. In the event the Company terminates the
Executive's employment without Cause or the Executive terminates his employment
with Good Reason, the Company shall: (i) continue to pay the Executive all
salary and bonus and provide all benefits and other compensation to Executive
under this Agreement for the duration of the employment term, and the Executive
must comply with the provisions of Sections 7 and 8 and (ii) the Company shall
pay any and all Earn-Out payments when due pursuant to the Asset Agreement.
(f) Events to Occur Upon Change of Control. Immediately upon
the occurrence of a Change of Control: (i) the Lock-up Agreement shall
immediately terminate and all shares of Parent's common stock earned by Seller
pursuant to Asset Agreement shall be released therefrom, (ii) all options
granted to the Executive under the Plan shall vest and become immediately
exercisable, and (iii) the Company shall pay any and all Earn-Out payments when
due pursuant to the Asset Agreement unless one of the events specified in
Section 6(c) have occurred.
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(g) Special Termination. In the event that (i) the Executive,
with or without a change in title or formal corporate action, can no longer
exercise all of the duties and responsibilities and shall no longer possess
substantially all the authority set forth in Section 3(a); (ii) the Company
materially breaches this Agreement or the performance of its duties and
obligations hereunder; or (iii) a transaction occurs whereby any entity or
person not now an executive officer or director of the Parent or the Company
becomes, either individually or as part of a group, the direct beneficial owner
of 50.1% of the common stock of the Company, the Executive, by written notice to
the Company, may elect to deem the Executive's employment hereunder to have been
terminated by the Company without cause, in which event the Executive shall be
entitled at the time of termination to compensation equal to an amount of Base
Salary equal to the term then remaining at the time of such termination under
this Agreement and benefits payable pursuant to Section 5 herein for such period
and all of Executive's remaining unvested options, if any, shall vest
immediately upon such termination.
(h) Agreement to Be Bound by Covenants Following Termination.
If the Executive ceases his employment or is terminated by the Company for any
reason whatsoever, the provisions of Section 7 and Section 8 herein
(collectively, the "Covenants"), shall remain in force for the applicable period
set forth in (i) or (ii) below (the "Restrictive Period"), provided that the
Company pays the Executive salary and benefits to which he is entitled to under
this Agreement. The Executive agrees to be bound by the Covenants: (i) for a
period of one year following the date of termination if the Executive is
terminated with Cause or terminates his employment for Good Reason, or (ii) for
one year following the cessation of payments made by the Company under Section
6(e) if the Executive terminates his employment without Cause or without Good
Reason.
7. Non-Competition Agreement. Subject to Section 6(h) above,
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(a) Competition with the Company. Until termination of his
employment and thereafter for the applicable Restrictive Period the Executive,
directly or indirectly, 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 (i)
work for a Customer, as defined, including Endo Pharmaceuticals Holders Inc. or
any Affiliated Entity of a Customer, or (ii) compete with the Company or any of
its affiliates by working for a clinical research company within any
metropolitan area in the United States; provided, however, the foregoing shall
not prevent Executive 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 business (the "Prohibited Business") if Executive's employment is
totally unrelated to the Prohibited Business; provided, further, the foregoing
shall not prohibit Executive from owning up to 5% of the securities of any
publicly-traded enterprise provided Executive is not an executive, 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 Executive, directly or
indirectly, will not seek Prohibited Business from any Customer (as defined
below) on behalf of any enterprise or business other than the Company, refer
Prohibited Business from any Customer to any enterprise or business other than
the Company or receive
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commissions based on sales or otherwise relating to the Prohibited Business from
any Customer, or any enterprise or business other than the Company. For purposes
of this Agreement, the term "Customer" means Endo Pharmaceuticals Holdings Inc.
(and any Affiliate), any person, firm, corporation, partnership, association or
other entity to which the Company sold or provided goods or services during the
12-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 was approached by or who or which
has approached an employee of the Company for the purpose of soliciting business
from the Company 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 Executive, 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 Executive acknowledges and agrees that no
separate or additional payment will be required to be made to his in
consideration of his undertakings in this Section 7.
(e) References to the Company in this Section 7 shall include
the Company's Affiliated Entities.
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, 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 executives, former executives, clients and former
clients. In addition, Confidential Information also includes Customers and the
identity of and telephone numbers, e-mail addresses and other addresses of
executives or agents of Customers (each a "Contact Person") who are the persons
with whom the Company's executives and agents communicate in the ordinary course
of business. 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 Executive, (ii)
information set forth in the written records of the Executive prior to
disclosure to the Executive 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 Executive from a third
party who did not acquire such confidential information or trade secret,
directly or indirectly, from Executive or the Company. As used herein, the term
"Services" shall include all formulations, foods, drugs and medical devices for
which the Company has performed, managed or supervised any clinical or
pre-clinical research, testing, protocol design, data management, medical
writing or other, during the term of Executive's employment.
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(b) Legitimate Business Interests. The Executive recognizes
that the Company has legitimate business interests to protect and as a
consequence, the Executive 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 as defined in Section 8(a), (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; (iv) Customer 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 the greater of (i) the
full term as specified in Section 2(a) hereof, or (ii) 18 months following
termination of employment, the Confidential Information shall be held by the
Executive in the strictest confidence and shall not, without the prior written
consent of the Company, be disclosed to any person other than in connection with
the Executive's employment by the Company. The Executive 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 Executive 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 Executive 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. All records, files, materials and other
Confidential Information obtained by the Executive 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
Executive 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 Executive officer of the Company (excluding the
Executive, if applicable).
(d) References to the Company in this Section 8 shall include
the Company's Affiliated Entities.
9. Equitable Relief.
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(a) The Company and the Executive recognize that the services
to be rendered under this Agreement by the Executive are special, unique and of
extraordinary character, and that in the event of the breach by the Executive of
the terms and conditions of this Agreement or if the Executive, without the
prior consent of the board of directors of the Company, shall leave his
employment without Good Reason or be terminated by the Company for Cause and
take any action in violation of Section 7 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 Executive 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.
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(b) Any action must be commenced in Miami-Dade County,
Florida. The Executive 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 Executive 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 Executive 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 Executive or the Company therein described, or by
appropriate proceedings under any applicable treaty or otherwise.
10. Conflicts of Interest. While employed by the Company, the Executive
shall not, unless approved by the board of directors, directly or indirectly:
(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 Executive's employment with the Company for the Executive'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 this Section 10(a), (b) or (c), the Company also
includes its Affiliates.
11. Inventions, Ideas, Processes, and Designs. All inventions, ideas,
processes, programs, software, and designs (including all improvements) (i)
conceived or made by the Executive during the course of his employment with the
Company (whether or not actually conceived during regular business hours); 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 Executive for the Company,
or (c) pertains to the current business or demonstrably anticipated research or
development work of the Company. The Executive 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 Executive shall be bound by such
decision. The Executive 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.
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12. Indebtedness. If, during the course of the Executive's employment
under this Agreement, the Executive becomes indebted to the Company for any
reason, and is in arrears on repayment, the Company may, if it so elects, upon
thirty (30) days' prior written notice delivered to the Executive, set off any
sum due to the Company from the Executive and collect any remaining balance from
the Executive unless the Executive has entered into a written agreement with the
Company.
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 or assets and business of the Company.
The Executive's obligations hereunder may not be assigned or alienated and any
attempt to do so by the Executive will be void.
14. Severability.
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(a) The Executive 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 Executive and the Company that this Agreement shall be construed by the
court in such a manner as to impose only those restrictions on the Executive'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 or by facsimile delivery, as follows:
To the Company: SFBC New Drug Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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With a Copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
To the Executive: [WILL PROVIDE ADDRESS FOR NOTICES]
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.
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.
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22. Arbitration. Except for a claim for equitable relief, any
controversy, dispute or claim arising out of or relating to this Agreement, or
its interpretation, application, implementation, breach or enforcement which the
parties are unable to resolve by mutual agreement, shall be settled by
submission by either party of the controversy, claim or dispute to binding
arbitration in Miami-Dade County, Florida (unless the parties agree in writing
to a different location), before three arbitrators in accordance with the rules
of the American Arbitration Association then in effect. In any such arbitration
proceeding the parties agree to provide all discovery deemed necessary by the
arbitrators. The decision and award made by the arbitrators shall be final,
binding and conclusive on all parties hereto for all purposes, and judgment may
be entered thereon in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date and year first above written.
SFBC New Drug Services, Inc.
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Signatory
Executive:
------------------------------------
By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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