EXHIBIT 10.4
FORM OF
E M P L O Y M E N T A G R E E M E N T
EMPLOYMENT AGREEMENT (this "Agreement") made as of the day of , 2000
between INNOVATIVE CLINICAL SOLUTIONS, LTD., a Delaware corporation (the
"Company"), and [Executive Name*] (hereinafter "Employee").
WHEREAS, Employee currently serves as the [Title] of the Company;
WHEREAS, on , 2000, the Company and various affiliated entities
confirmed their Joint Prepackaged Chapter 11 Plan of Reorganization dated
June 1, 2000 (the "Prepackaged Plan");
WHEREAS, the Company believes it is in the Company's best interest to employ
Employee, and Employee desires to be employed by the Company, pursuant to the
terms and conditions hereof; and
WHEREAS, the Company and Employee desire to enter into this Agreement,
setting forth the terms and conditions pursuant to which Employee shall be
employed by and provide services to the Company commencing on the Effective Date
(as defined in the Prepackaged Plan).
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Employee and Employee
hereby agrees to accept such employment, all upon the terms and conditions
hereinafter set forth. In accepting such employment, Employee represents and
warrants that he is not under any restrictions in the performance of the duties
contemplated under this Agreement by a non-compete or similar agreement, and has
never been debarred or excluded from participation in any federal or state
health care program.
2. TERM. Unless sooner terminated pursuant to the provisions of this
Agreement, the term of employment of Employee under this Agreement shall be for
a period of three (3) years commencing on the Effective Date and ending on the
third anniversary of the Effective Date (the "Employment Period"). The term of
employment under this Agreement may be renewed upon agreement of the parties.
3. COMPENSATION; BENEFITS. As remuneration for all services to be rendered
by the Employee during the term of this Agreement, and as consideration for
complying with the covenants herein, the Company shall pay and provide to
Employee the following compensation and benefits. The Salary, Annual Bonus and
benefits provided below shall be in addition to such other benefits and bonus
programs as the Company, in its sole and absolute discretion, shall from time to
time provide to the Company's executive officers. Such benefits and bonus
programs other than as set forth specifically herein are subject to change from
time to time as determined by the Board of Directors of the Company.
(a) SALARY. Employee shall be entitled to receive a salary from the
Company during the Employment Period at the rate of no less than [Salary*] and
00/100 Dollars ($[Salary]) per annum (the "Salary"). The Salary shall be payable
in equal installments in accordance with the normal payroll policies of the
Company (which policies may be changed by the Company from time to time in its
sole discretion), but in no event less frequently than monthly. Employee's
Salary and other compensation under this Agreement may be allocated to and paid
by any subsidiary or commonly controlled affiliated entity (which may or may not
be treated as consolidated subsidiaries for tax or financial reporting purposes)
(collectively, "Affiliates"), if any, as determined from time to time by the
Board of Directors of the Company. There will be an annual review of Employee's
performance and a determination at that time of any increase in compensation.
(b) BONUSES. Employee shall be entitled to a bonus equal to 25% of
employee's Salary, payment to be made subject to the Company's satisfying
performance standards established annually by the Company and Employee (the
"Annual Bonus").
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* Employment terms are reflected on the attached Schedule of Employment terms.
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EMPLOYMENT AGREEMENT
(c) OPTIONS. On or promptly following commencement of the Employment
Period, the Company shall grant to Employee stock options to acquire [Number*]
shares of its common stock ("Options"), which shall have an option exercise
price as provided in the Company's 2000 Stock Option Plan. The Options shall be
granted to Employee and will be issued pursuant to the Company's 2000 Stock
Option Plan and subject to a separate written stock option agreement. The
Options shall not be immediately exercisable upon the date of grant, but shall
become exercisable by Employee in equal one-third (1/3) increments on each of
the first three (3) anniversaries of the Effective Date, subject to the terms
and conditions of the 2000 Stock Option Plan and applicable agreement, provided,
however, upon the occurrence of a Change of Control (as hereinafter defined),
all Options shall become immediately vested and exercisable, and provided,
further, if this Agreement is not extended by the parties, Employee shall be
entitled to exercise the Options for a period of twelve (12) months following
the end of the Employment Period. The Options shall not be exercisable
subsequent to the date ten (10) years after their grant to Employee. Additional
Options will be granted to Employee from time to time in accordance with Company
policy or upon approval by the Board of Directors.
(d) RETIREMENT BENEFITS. Should the Company implement qualified
defined benefit and/or defined contribution retirement plans, the Company shall
provide to Employee participation in all such plans, subject to the eligibility
and participation requirements of such plans. In addition, the Company shall
provide to Employee participation in any supplemental retirement plan and all
other nonqualified retirement programs typically offered to executives having
the same or similar duties and responsibilities at the Company. Nothing in this
paragraph shall be construed as obligating the Company to refrain from changing,
and/or amending the nonqualified retirement programs, so long as such changes
are similarly applicable to all executives generally.
(e) EMPLOYEE BENEFITS. During the term of this Agreement, and as
otherwise provided within the provisions of each of the respective plans, the
Company shall provide to Employee all benefits which other executives and
employees of the Company are entitled to receive, as commensurate with
Employee's position. Such benefits shall include, but not be limited to, group
term life insurance, whole life insurance, comprehensive health and medical
insurance, dental insurance, vision insurance, and short and long term
disability insurance. Employee shall be entitled to paid vacation in accordance
with the standard written policy of the Company with regard to vacations of
employees. Employee shall likewise participate in any additional benefit as may
be established during the term of this Agreement, by standard written policy of
the Company or approved by the Board of Directors.
(f) PERQUISITES. The Company shall provide to the Employee, at the
Company's cost, all perquisites to which other executives of the Company are
entitled to receive and such other perquisites which are suitable to the
character of Employee's position with the Company and adequate for the
performance of his duties hereunder.
(g) RIGHT TO CHANGE PLANS. By reason of Paragraphs 3(e), and 3(f)
herein, the Company shall not be obligated to institute, maintain, or refrain
from changing, amending, or discontinuing any benefit plan, program, or
perquisite, so long as such changes are similarly applicable to executive
employees generally.
(h) DEFERRALS. The Company may permit Employee to defer the Employee's
receipt of the payment of up to one hundred (100%) percent of Employee's Bonus
or any amounts payable to Employee pursuant to Section 8 of this Agreement. If
any such deferral election is permitted, the Company shall establish rules and
procedures for such payment deferrals, provided, however, that such rules and
procedures are customary.
(i) INDEMNITY AND INSURANCE. The Company hereby covenants and agrees
to indemnify Employee and hold Employee harmless fully, completely, and
absolutely against and in respect to any and
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EMPLOYMENT AGREEMENT
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all actions, suits, proceedings, claims, demands, judgments, costs, expenses
(including reasonable attorney's fees), losses, and damages resulting from
Employee's good faith performance of his duties and obligations under the terms
of this Agreement. To the extent that the Company maintains an insurance policy
or policies providing liability insurance for directors, officers, employees or
agents or fiduciaries of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other trust, employee benefit
plan or other enterprise which such person serves at the request of the Company,
Employee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any such
director, officer, employee or agent under such policy or policies.
(j) EFFECT OF CHANGE OF CONTROL. Notwithstanding anything to the
contrary contained herein, upon the occurrence of a Change of Control, Employee
shall be fully vested in any then outstanding equity-based compensation awards
theretofore granted by the Company to Employee and Employee's accrued benefit
under non-qualified supplemental retirement or deferred compensation plan of the
Company.
4. DUTIES. During the Employment Period, Employee agrees to serve
exclusively as the [Title*] of the Company. Employee shall exercise such powers
and comply with and perform such directions and duties in relation to the
business and affairs of the Company as are customarily and ordinarily exercised
and performed by the [Title*] of similar entities and as may from time to time
be vested in or requested by the Chief Executive Officer of the Company
consistent with Employee's position, and shall use his best efforts to improve
and expand the business of the Company and its Affiliates consistent with
Employee's position. Notwithstanding any other term or provision to the contrary
contained herein, in no event shall Employee be obligated to perform any act
which would constitute or require the violation of any federal, state or local
law, rule, regulation, ordinance or the like. Employee shall at all times report
to, and his activities shall at all times be subject to the direction and
control of, the Chief Executive Officer of the Company. Employee shall have
general supervisory control over and responsibility for the general management
of [Job Description] services, subject in all instances to the written policy
guidelines concerning operations and capital expenditures promulgated and/or
approved from time to time by the Board of Directors of the Company or its
Executive Committee. Employee agrees to devote his entire business time, energy
and skill to the service of the Company and its Affiliates and shall perform his
duties in a good faith, trustworthy and businesslike manner, in compliance with
the laws of the United States of America and all other political subdivisions,
all for the purpose of advancing the interests of the Company and its
Affiliates. Employee shall at no time during the Employment Period engage in any
other business activity whether or not such activity is pursued for gain, profit
or other pecuniary advantage. Notwithstanding the foregoing, provided the same
shall not interfere with the performance by Employee of his duties under this
Agreement and shall not violate the terms and provisions of any other provision
of this Agreement (including, but not limited to, Section 13 of this Agreement),
Employee may invest his personal assets in businesses where the form or manner
of such investment will not require services on the part of Employee and in
which his participation is solely that of a passive investor and/or serve on the
board of directors or as an officer of, or as a volunteer for, charitable, civic
or community organizations; PROVIDED with the prior written consent of the
Company's Board of Directors, Employee may act as a consultant to businesses or
entities or serve as a member of the board of directors of a for profit
organizations.
5. LOCATION OF COMPANY HEADQUARTERS. Unless otherwise mutually agreed by
the Company and Employee, the parties hereby agree that Employee shall perform
his duties primarily from Providence, Rhode Island.
6. BUSINESS EXPENSES. Consistent with the Company's policies as in effect
from time to time (including, but not necessarily limited to, a satisfactory
itemized accounting for such expenditures),
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EMPLOYMENT AGREEMENT
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Employee shall be reimbursed for any ordinary and necessary expenses reasonably
incurred in promoting the business of the Company.
7. CONFIDENTIALITY.
(a) In the course of this employment, the Company or its Affiliates may
disclose or make known to Employee, and Employee may be given access to or may
become acquainted with, certain information, trade secrets or both, all relating
to or useful in the business of the Company or its Affiliates (collectively
"Information") and which the Company considers proprietary and desires to
maintain confidential. As a material inducement to the Company in entering this
Agreement, Employee covenants and agrees that during the term of this Agreement
and at all times thereafter, Employee shall not in any manner, either directly
or indirectly, divulge, disclose or communicate to any person or firm, except to
or for the Company's benefit as directed by the Company, any of the Information
which he may have acquired in the course of or as an incident to his employment
by the Company, the parties agreeing that such information affects the
successful and effective conduct of the business and goodwill of the Company
and/or its Affiliates, and that any breach of the terms of this Section is a
material breach of this Agreement. Notwithstanding the foregoing, nothing in
this Section 7 shall preclude Employee from disclosing Information pursuant to
judicial order or Information which has been made properly public through the
release or disclosure by persons other than Employee.
(b) All equipment, documents, memoranda, reports, records, files,
materials, samples, books, correspondence, lists, computer software, other
written and graphic records, and the like (collectively, the "Materials"),
affecting or relating to the business of the Company and/or its Affiliates,
which Employee shall prepare, use, construct, observe, possess or control shall
be and remain the Company's exclusive property or in the Company's exclusive
custody, and must not be removed from the premises of the Company or given to
any person or entity except as directed by the Company in writing or as
necessary in performing Employee's duties hereunder. Promptly upon termination
of this Agreement for any reason, or completion of the tasks or duties assigned
pursuant hereto, the Materials, Information and all copies thereof in the
custody or control of Employee shall be delivered promptly to the Company.
Employee acknowledges that all documents and equipment relating to the business
of the Company and/or its Affiliates, in addition to all Information and
Materials, whether prepared by Employee or otherwise coming into Employee's
possession, are owned by and constitute the exclusive property of the Company or
in the Company's exclusive custody, and all such documents and equipment must
not be removed from the premises of the Company except as directed by the
Company in writing or as necessary in performing Employee's duties hereunder.
(c) The covenants of Employee set forth in this Section 7 are separate
and independent covenants for which valuable consideration has been paid, the
receipt, adequacy and sufficiency of which are acknowledged by Employee, and
have also been made by Employee to induce the Company to enter into this
Agreement. Each of the aforesaid covenants may be availed of, or relied upon, by
the Company in any court of competent jurisdiction, and shall form the basis of
injunctive relief and damages including expenses of litigation (including but
not limited to reasonable attorney's fees upon trial and appeal) suffered by the
Company arising out of any breach of the aforesaid covenants by Employee. The
covenants of Employee set forth in this Section 7 are cumulative to each other
and to all other covenants of Employee in favor of the Company contained in this
Agreement and shall survive the termination of this Agreement for the purposes
intended. Should any covenant, term or condition in this Section 7 become or be
declared invalid or unenforceable by a court of competent jurisdiction, then the
parties request that such court judicially modify such unenforceable provision
consistent with the intent of this Section 7 so that it shall be enforceable as
modified.
8. CHANGE OF CONTROL. (a) If a Change of Control (as defined in
paragraph (b) of this Section 8) occurs and within one (1) year after, or six
(6) months prior to, such Change of Control, Employee's
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EMPLOYMENT AGREEMENT
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employment is terminated by the Company under Section 9(a) or by Employee
pursuant to Section 10(b), (c), (d), or (e), Employee shall be entitled to
receive a supplemental bonus payment from the Company equal to 2.99 times the
Salary (the "Supplemental Bonus Payment"), such payment to be made in a lump sum
within fifteen (15) days following the later of the Change of Control or
termination of employment. Notwithstanding anything contained herein to the
contrary, if a Change of Control occurs after July 31, 2002, the entitlement of
Employee to such Supplemental Bonus Payment pursuant to the immediately
preceding sentence shall be subject to the additional condition that the Company
has achieved a cumulative positive comprehensive net income (excluding any
deductions for amortization of any reorganization value in excess of amounts
allocable to identifiable assets resulting from the consummation of the
Prepackaged Plan and goodwill) for the period commencing immediately after its
fiscal quarter ended July 31, 2000, through the close of the Company's quarterly
fiscal period immediately prior to the date of such Change of Control, based
upon the Company's audited financial statements and, to the extent such audited
financial statements are not available, interim financial statements.
(b) For purposes of this provision, "Change of Control" shall mean the
occurrence of any of the following:
(i) Any individual, corporation (other than the Company, an
Affiliate, any subsidiary of the Company, or any of their respective employee
benefit plans or any trust maintained under such a plan, or any person or group
of persons who directly or indirectly beneficially own twenty (20%) percent or
more of the voting securities of the Company after giving effect to all
distributions of New Common Stock (as defined in the Prepackaged Plan) to be
distributed as of the Effective Date in connection with the consummation of the
Prepackaged Plan), partnership, trust, association, pool, syndicate, or any
other entity or any group of persons acting in concert becomes the beneficial
owner, as that concept is defined in Rule 13d-3 promulgated by the Securities
and Exchange Commission under the Securities Exchange Act of 1934, of securities
of the Company possessing either (X) thirty percent (30%) or more of the voting
power for the election of directors of the Company or (Y) thirty percent (30%)
or more in value of the outstanding equity securities (or the right to acquire
thirty (30%) per cent or more) of the Company;
(ii) There shall be consummated any consolidation, merger, or other
business combination involving the Company or the securities of the Company in
which (X) holders of voting securities of the Company immediately prior to such
consummation own, as a group, immediately after such consummation, voting
securities of the Company (or, if the Company does not survive such transaction,
voting securities of the corporation surviving such transaction) having less
than fifty percent (50%) of the total voting power in an election of directors
of the Company (or such other surviving corporation) or (Y) holders of equity
securities of the Company immediately prior to such consummation own, as a
group, immediately after such consummation, equity securities of the Company
(or, if the Company does not survive such transaction, equity securities of the
corporation surviving such transaction) having less than fifty percent (50%) of
the equity securities of the Company (or such other surviving corporation)
(iii) During any period of two (2) consecutive years, individuals who
at the beginning of such period constitute the directors of the Company cease
for any reason other than voluntary resignation, death, disability or retirement
to constitute at least a majority thereof unless the election, or the nomination
for election by the Company's shareholders, of each new director of the Company
was approved by a vote of at least two-thirds (2/3) of the directors of the
Company then still in office who were directors of the Company at the beginning
of any such period; or
(iv) There shall be consummated any sale, lease, exchange, or other
transfer (in one transaction or a series of related transactions) of assets
representing at least 75% of the assets of the Company (on a consolidated basis)
to a party which is not controlled by or under common control with the Company.
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EMPLOYMENT AGREEMENT
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9. EVENTS OF TERMINATION BY THE COMPANY. This Agreement and the Employment
Period may be terminated by the Company:
(a) Other than "with cause," effective immediately upon delivery of
written notice to Employee by the Company; or
(b) "With cause," effective immediately upon delivery of written notice
to Employee by the Company. A termination shall be deemed to be "with cause" if
the Company determines that Employee has:
(i) misappropriated any material assets or material opportunities
of the Company or its Affiliates;
(ii) been convicted of a felony involving violence, dishonesty,
conversion, theft or misappropriation of property of another, controlled
substances, moral turpitude or the regulatory good standing of the Company or
its Affiliates;
(iii) abused drugs or alcohol in a manner which prevents Employee
from performing substantially his duties in the manner provided herein;
(iv) failed or refused to perform his material duties in the manner
provided herein or failed or refused to perform the duties properly assigned to
him by the Company in accordance with Section 4 hereof, other than by reason of
disability (as defined in Section 11 (b) below), or breached any of his other
material obligations under this Agreement;
(v) engaged in willful, grossly negligent or reckless misconduct
which the Board of Directors acting in good faith determines to be materially
injurious to the Company or its Affiliates; or
(vi) acted in a manner which the Board of Directors acting in good
faith determines has negatively impacted upon the reputation, name, goodwill,
business or regulatory standing of the Company or its Affiliates.
The foregoing to the contrary notwithstanding, no action or inaction of Employee
described in clause (iv), (v) or (vi) above which is susceptible to being cured
shall be considered "with cause" if the Company determines in good faith that
Employee has cured or has commenced, and is diligently pursuing the cure of,
such action or inaction within thirty (30) days after the Company's delivery of
written notice to Employee of such action or inaction.
10. EVENTS OF TERMINATION BY EMPLOYEE. This Agreement and the Employment
Period may be terminated by Employee, upon delivery of written notice to the
Company by Employee:
(a) not less than thirty (30) days in advance of his resignation other
than for the reasons set forth in clauses (b) through (f) of this Section 10;
(b) in the event of the failure of the Company to pay any sums due or
grant any Options required by this Agreement to be so paid or granted to
Employee or perform substantially any of its other material duties and
obligations required to be performed or observed in accordance with this
Agreement, but only after written notice has been given by Employee to the
Company, PROVIDED, HOWEVER, that the Company shall have a period of thirty
(30) days from delivery of such notice within which to cure the same or such
longer period of time as may be required for such cure, provided the Company has
commenced such cure within such thirty days and is diligently pursuing such
cure;
(c) in the event that the Company shall reassign Employee from
Providence, Rhode Island without Employee's prior approval (other than ordinary
travel requirements);
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EMPLOYMENT AGREEMENT
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(d) in the event that the Company shall materially change Employee's
duties without his prior written consent;
(e) in the event of any reduction in Employee's Salary or any material
reduction in Employee's level of participation in any of the Company's
short-and/or long-term incentive compensation plans, or employee benefit or
retirement plans, policies, practices, or arrangements in which the Employee
participates as of the Effective Date without the consent of the Employee;
unless the Employee's reduced level of participation in each such program
remains substantially consistent with the average level of participation of
other executives who have positions commensurate with the Employee's position;
or
(f) in the event that Employee's employment with the Company and any
Affiliate is terminated due to expiration of the Employment Term, and the
Company fails at least thirty (30) days prior to such expiration to make a good
faith offer to continue his employment on terms and conditions substantially
similar to those set forth in this Agreement.
11. OTHER TERMINATION OF THIS AGREEMENT. This Agreement and the Employment
Period shall terminate upon the occurrence of any of the following events:
(a) Immediately upon the death of Employee;
(b) In the event that Employee becomes Disabled during the term of this
Agreement and is, therefore, unable to perform his duties herein for a period of
more than one hundred twenty (120) calendar days in the aggregate, during any
period of twelve (12) consecutive months, or in the event of the Board's
reasonable expectation that Employee's Disability will exist for more than a
period of one hundred twenty (120) calendar days, the Company shall have the
right to terminate Employee's active employment as provided in this Agreement.
However, the Board shall deliver written notice to Employee of the Company's
intent to terminate for Disability at least forty-five (45) calendar days prior
to the effective date of such termination. A termination for Disability shall
become effective upon the end of the forty-five (45) day notice period. The term
"Disability" shall mean, for all purposes of this Agreement, the incapacity of
Employee, due to injury, illness, disease, or bodily or mental infirmity, to
engage in the performance of substantially all of the usual duties of employment
with the Company as contemplated by Section 4 herein, such Disability to be
determined by the Board of Directors of the Company upon receipt and in reliance
on competent medical advice from one or more individuals, selected by the Board,
who are qualified to give such professional medical advice. If Employee and the
Company shall not be in agreement as to whether Employee has suffered a
Disability for the purposes of this Agreement, the matter shall be referred to a
panel of three medical doctors, one of which shall be selected by Employee, one
of which shall be selected by the Company, and one of which shall be selected by
the two doctors as so selected, and the decision of a majority of the panel with
respect to the question of whether Employee has suffered a Disability shall be
binding upon Employee and the Company. The expenses of any such referral shall
be borne by the party against whom the decision of the panel is rendered.
Employee may be required by the Company to submit to medical examination at any
time during the period of his employment hereunder, but not more often than
semi-annually, to determine whether a Disability exists for the purposes of this
Agreement. It is expressly understood that the Disability of Employee for a
period of one hundred twenty (120) calendar days or less in the aggregate during
any period of twelve (12) consecutive months, in the absence of any reasonable
expectation that his Disability will exist for more than such a period of time,
shall not constitute a failure by him to perform his duties hereunder and shall
not be deemed a breach or default and Employee shall receive full compensation
for any such period of Disability or for any other temporary illness or
incapacity during the term of this Agreement; or
(c) The expiration of the Employment Period, subject to the last
sentence of Section 2 hereof.
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EMPLOYMENT AGREEMENT
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12. EFFECTS OF TERMINATION. Upon the termination of the Agreement and the
Employment Period:
(a) Employee's duties shall, except as otherwise provided by
Section 19 hereof, cease as of the effective date of termination, PROVIDED,
HOWEVER, that Employee will in all events of termination use reasonable efforts
for a thirty-day period for the smooth transition of duties to appropriate
independent contractors and/or employees of the Company.
(b) With respect to any termination pursuant to Section 9(b) or 10(a)
of this Agreement, payments made on account of Employee's Salary shall cease
upon the effective date of termination; any amounts due on account of Employee's
Salary and Annual Bonus for account of services performed prior to the effective
date of termination which have not previously been paid will be paid (pro rata
through the effective date of termination) within thirty (30) days following
termination; and the Company shall have no further obligation to Employee.
(c) With respect to a termination other than pursuant to Sections 9(b),
10(a) or 11 of this Agreement, the Company shall pay Employee, within thirty
(30) days of such termination, any amounts due on account of Employee's Salary
and Annual Bonus for account of services performed prior to the effective date
of termination which have not been previously paid (pro rated through the
effective date of termination) and a severance payment equal to Employee's
Salary for an additional period of twelve (12) months after such termination or
the remainder of the Employment Period, whichever is longer. All payments made
pursuant to this Section 12(c) shall be made, in the Board's discretion, in a
lump sum or in equal monthly installments and in accordance with the normal
payroll policies of the Company, subject to all appropriate withholding taxes.
In the event of a termination described in the first sentence of this
Section 12(c), in addition to the foregoing, Employee shall be entitled to
(i) a continuation of the welfare benefits of medical insurance, dental
insurance, and group term life insurance for two (2) full years after the
effective date of termination and (ii) a lump-sum cash payment of the actuarial
present value equivalent of the aggregate benefits accrued by the Employee as of
the effective date of termination under the terms of any and all supplemental
retirement plans in which the Employee participates. For purposes of determining
"final average pay" under such programs, the Employee's actual pay history as of
the effective date of termination shall be used. These benefits shall be
provided to the Employee at the same premium cost, and at the same coverage
level, as in effect as of the Employee's effective date of termination. However,
in the event the premium cost and/or level of coverage shall change for all
employees of the Company, the cost and/or coverage level, likewise, shall change
for the Employee in a corresponding manner. The continuation of these welfare
benefits shall be discontinued prior to the end of the two (2) year period in
the event the Employee has available substantially similar benefits from a
subsequent employer, as determined by the Company's Board of Directors or the
Board's designee
(d) All expenses which are properly reimbursable to Employee pursuant
to Section 6 will be promptly reimbursed following termination.
(e) Except as otherwise provided in this Agreement, all other benefits
and/or entitlements to participate in bonus programs, if any, will cease as of
the effective date of termination, subject to Employee's rights to continue
medical insurance coverage at his own expense as provided by applicable law or
written Company policy; PROVIDED, HOWEVER, that all policies of insurance
relating solely to Employee shall be assigned to Employee within thirty
(30) days following termination, PROVIDED that such assignment shall be at no
cost or expense to the Company, and PROVIDED FURTHER that such assignment shall
state that it is made subject to the terms and conditions of the policy(ies).
(f) The rights, privileges, benefits, remedies and interests of the
Company and Employee under Section 3 of this Agreement shall be governed by the
terms and provisions of such Section 3 and the plans and option agreement
referenced in such Section 3.
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EMPLOYMENT AGREEMENT
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(g) The Company shall pay to Employee's surviving spouse, or other
beneficiary as so designated by Employee during his lifetime, or to Employee's
estate, as appropriate, all benefits to which Employee had a vested right
pursuant to this Agreement at the time of his death.
(h) Employee acknowledges and agrees that any severance for which he
qualifies under this Section 12 or Section 8 shall be full and adequate
consideration to Employee for all damages he may suffer as a result of the
termination of his employment, and Employee hereby waives and releases the
Company and its subsidiaries and Affiliates from any and all obligations and
liabilities to Employee arising from or in connection with Employee's employment
or termination of employment with the Company or its subsidiaries or Affiliates
of this Agreement. Employee agrees, as a condition to receipt of payments and
benefits under this Section 12 or Section 8 hereof, that he will execute a
release agreement, in a form reasonably satisfactory to the Company, releasing
any and all claims against the Company, its subsidiaries and Affiliates (other
than enforcement of this Agreement).
13. NON-COMPETITION AND SOLICITATION.
(a) Employee acknowledges that he has performed services or will
perform services hereunder, and will acquire knowledge and proprietary
information, which will directly affect the business of the Company and/or its
Affiliates to be conducted in the United States (the "Area"). Accordingly, the
parties deem it necessary to provide protective non-competition and
non-solicitation provisions in this Agreement.
(b) Employee agrees with the Company that:
(i) Employee shall not, without the prior written consent of the
Company, which consent shall be within the sole and exclusive discretion of the
Company, within the Area, either directly or indirectly, perform services or
duties, or engage in the same or similar business as Clinical Studies or any
company which provides either directly or through a subsidiary clinical trial
site management services in any capacity, whether as an owner, shareholder,
consultant, director, officer, manager, supervisor or employee of any entity,
provided that such company is in direct competition with Clinical Studies or any
other subsidiary of the Company performing similar services, provided, however,
that nothing contained herein shall be construed to prevent Employee from
performing services or duties, or engaging in business on behalf of a company
(including a pharmaceutical or biotechnology company or contract research
organization) which has a division or subsidiary that is engaged in clinical
trials site management provided Employees is not involved in such activity on
behalf of such division or subsidiary of the company; and
(ii) Neither Employee nor any company or entity with which Employee
becomes associated in any way shall solicit for employment any employee of the
Company or its Affiliates or any consolidated entity (whether or not such
employment is full-time, part-time, or is pursuant to a written contract) other
than his personal secretary for the purpose of having such employee perform
services for another company located in the Area.
(c) The covenants of Employee set forth in this Section 13 shall
commence upon the Effective Date and continue for the greater of (i) the period
of twelve (12) months following the effective date of termination of Employee's
employment hereunder, whether or not such termination is "with cause," and
(ii) the period with respect to which Employee is paid pursuant to
Section 12(c). Notwithstanding the foregoing, the covenants of Employee referred
to in this Section 13 shall be extended for a period of time equal to the period
of time during which Employee shall be in violation of such covenants and/or the
pendency of any proceedings brought by the Company to enforce the provisions of
such covenants.
(d) The covenants of Employee set forth in this Section 13 are separate
and independent covenants for which valuable consideration has been paid, the
receipt, adequacy and sufficiency of which are acknowledged by Employee, and
have also been made by Employee to induce the Company to enter into this
Agreement. Each of the aforesaid covenants may be availed of, or relied upon, by
the Company in
FORM OF EXECUTIVE
EMPLOYMENT AGREEMENT
9
any court of competent jurisdiction, and shall form the basis of injunctive
relief and damages including expenses of litigation (including but not limited
to reasonable attorney's fees upon trial and appeal) suffered by the Company
arising out of any breach of the aforesaid covenants by Employee. The covenants
of Employee set forth in this Section 13 are cumulative to each other and to all
other covenants of Employee in favor of the Company contained in this Agreement
and shall survive the termination of this Agreement for the purposes intended.
Should any covenant, term or condition in this Section 13 become or be declared
invalid or unenforceable by a court of competent jurisdiction, then the parties
request that such court judicially modify such unenforceable provision
consistent with the intent of this Section 13 so that it shall be enforceable as
modified.
14. ENTIRE AGREEMENT. This Agreement represents the entire understanding
and agreement between the parties with respect to the subject matter hereof, and
supersedes all other negotiations, understandings and representations (if any)
made by and between such parties. In the event of any inconsistency between the
provisions of this Agreement and the Stock Option Agreement of even date
herewith, the provisions, terms or definitions of this Agreement shall govern.
15. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
16. ASSIGNMENTS. Subject to Employee's rights pursuant to Section 10
hereof to terminate this Agreement, the Company shall have the right to assign
all of its rights and obligations under this Agreement to (i) any Affiliate of
the Company or (ii) any person or entity which purchases all or substantially
all of the assets of the Company or its Affiliates or with which the Company
merges or consolidates and, upon such assignment, this Agreement shall be
binding upon and inure to the benefit of such assignee, and if the assignment is
pursuant to clause (ii) the Company and its Affiliates shall be released and
discharged from all duties and obligations under this Agreement. Employee shall
execute such instruments as shall be reasonably requested by the Company and its
Affiliates to evidence such release. Employee shall have no right to assign or
delegate any rights or obligations under this Agreement.
17. BINDING EFFECT. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns.
18. SEVERABILITY. If any part of this Agreement or any other agreement
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible.
19. SURVIVAL. Notwithstanding anything to the contrary herein, the
provisions of Sections 7, 8, 12, 13 and 14 through 27 shall survive and remain
in effect in accordance with their respective terms in the event this Agreement
or any portion hereof expires by its terms or is terminated.
20. NOTICES. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including telex
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
FORM OF EXECUTIVE
EMPLOYMENT AGREEMENT
10
If to Employee: With a Copy to:
Attn:
If to the Company: With a Copy to:
Innovative Clinical Solutions, Ltd. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 1500 Fleet Center
Providence, Rhode Island 02903 ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery, (b) on the date telecommunicated if by
telegraph, (c) on the date of transmission with confirmed answer back if by
telex or telecopy, and (d) on the date upon which the return receipt is signed
or delivery is refused or the notice is designated by the postal authorities as
not deliverable, as the case may be, if mailed.
21. WAIVERS. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if known,
shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver by
any party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right, power or remedy
under this Agreement. No notice to or demand on any party in any case shall, of
itself, entitle such party to any other or further notice or demand in similar
or other circumstances.
22. ENFORCEMENT COSTS. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this
Agreement, the prevailing party in such action or such proceeding shall be
awarded its costs and expense (including reasonable attorney's fees) in
connection with bringing or defending such action or proceeding.
23. REMEDIES CUMULATIVE. Except as otherwise expressly provided herein, no
remedy herein conferred upon any party is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or otherwise. No single or partial exercise by
any party of any right, power or remedy hereunder shall preclude any other or
further exercise thereof.
24. GOVERNING LAW. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Rhode Island without regard to
principles of conflicts of laws.
25. CAPTIONS. The captions in this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope of
intent of this Agreement or the intent of any provision contained in this
Agreement.
26. TAXES. The Company shall deduct from all amounts payable to Employee
pursuant to this Agreement the amount of all required Federal, state and local
withholding taxes and all other applicable taxes.
27. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
FORM OF EXECUTIVE
EMPLOYMENT AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
INNOVATIVE CLINICAL SOLUTIONS, LTD.
By:
--------------------------------------
Name:
Date: Title:
EMPLOYEE:
--------------------------------------
Date: [Executive Name]
FORM OF EXECUTIVE
EMPLOYMENT AGREEMENT
12
SCHEDULE OF EMPLOYMENT TERMS
NUMBER OF
EXECUTIVE TITLE SALARY OPTIONS
--------- ---------------------------------------------- -------- ---------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇....... Chief Information Officer $200,000 357,143
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇.... Chief Financial Officer $200,000 357,143
R. ▇▇▇▇▇▇ ▇▇▇▇, M.D... Chief Operating Officer--Clinical Studies and
Healthcare Research $250,000 457,143
▇▇▇▇ ▇▇▇▇▇▇........... Chief Operating Officer--Network Management $210,000 357,143
FORM OF EXECUTIVE
EMPLOYMENT AGREEMENT
13