EXHIBIT 10.49
[RESEARCH TECHNOLOGY, INC. LOGO]
Enabling the Clinical Advantage
MANAGEMENT EMPLOYMENT AGREEMENT
The following agreement (hereinafter known as "Agreement") is hereby entered
into between Xxxxxxx X. Xxxxx (hereinafter known as "Employee") and
eResearchTechnology, Inc. (together with its affiliated corporations hereinafter
known as the "Company") and having its principal offices at 00 X. 00xx Xxxxxx,
Xxxxxxxxxxxx, XX 00000.
1. DUTIES AND RESPONSIBILITIES
Employee agrees to hold the position of Executive Vice President and Chief
Financial Officer and shall be directly responsible to the Chairman of the
Audit Committee.
2. BEST EFFORTS
Employee agrees to devote his best efforts to his employment with the
Company, on a full-time (no less than 40 hours/week) basis. He further
agrees not to use the facilities, personnel or property of the Company for
private business benefit.
3. ETHICAL CONDUCT
Employee will conduct himself in a professional and ethical manner at all
times and will comply with all company policies as well as all State and
Federal regulations and laws as they may apply to the services, products,
and business of the Company.
4. TERM OF THE AGREEMENT
This Agreement will be effective upon full execution and will continue year
to year unless terminated.
5. COMPENSATION
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a. Salary shall be $260,000/year payable in equal installments as per the
company's payroll policy. Salary shall be considered on an annual
basis and adjusted based on performance.
b. Benefits shall be the standard benefits of the Company, as they shall
exist from time to time.
c. This position qualifies for the Executive Bonus Plan of the Company.
For 2006, the Employee's bonus target will be 50% of his base salary
if the company meets its Board approved objectives for the year. Bonus
will be prorated based on Employee's starting date with the Company,
and may be increased or decreased based on performance as per the 2006
bonus plan. The Employee will also be eligible to participate in the
Executive Bonus Plan each year thereafter for the life of the
Agreement at a level to be determined by the Compensation Committee of
the Company's Board of Directors.
d. Employee will be granted 75,000 stock options on the date employment
begins, priced at the closing price of the stock on that date subject
to approval of the Company's Board of Directors. These options are
granted pursuant to the Company's 2003 Stock Option Plan.
6. NON-DISCLOSURE
Employee acknowledges that employment with the Company requires him to have
access to confidential information and material belonging to the Company,
including customer lists, contracts, proposals, operating procedures, trade
secrets and business methods and systems, which have been developed at
great expense by the Company and which Employee recognizes to be unique
assets of the Company's business. Upon termination of employment for any
reason, Employee agrees to return to the Company any such confidential
information and material in his possession with no copies thereof retained.
Employee further agrees, whether during employment with the Company or any
time after the termination thereof (regardless of the reason for such
termination), he will not disclose nor use in any manner, any confidential
or proprietary material relating to the business, operations, or prospects
of the Company except as authorized in writing by the Company or required
during the performance of his duties.
7. BUSINESS INTERFERENCE; NONCOMPETITION
a. During employment with the Company and for a period of one year (the
"Restrictive Period") thereafter (regardless of the reason for
termination) Employee agrees he will not, directly or indirectly, in
any way for his own account, as employee, stockholder, partner, or
otherwise, or for the account of any other person, corporation, or
entity: (i) request or cause any of the Company's suppliers, customers
or vendors to cancel or terminate any existing or continuing business
relationship with the Company; (ii) solicit, entice, persuade, induce,
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request or otherwise cause any employee, officer or agent of the
Company to refrain from rendering services to the Company or to
terminate his relationship, contractual or otherwise, with the
Company; or (iii) induce or attempt to influence any customer or
vendor to cease or refrain from doing business or to decline to do
business with the Company or any of its affiliated distributors or
vendors.
b. The Employee agrees that, during the Restrictive Period, the Employee
will not, directly or indirectly, accept employment with, provide
services to or consult with, or establish or acquire any interest in,
any business, firm, person, partnership, corporation or other entity
which engages in any business or activity that is the same as or
competitive with the business conducted by the Company in any state of
the United States of America and in any foreign country in which any
customer to whom the Company is providing services or technology is
located.
8. FORFEITURE FOR BREACH; INJUNCTIVE RELIEF.
a. Any breach of the covenants made in Sections 6 and 7 hereof shall
result in the forfeiture of the Employee's right to any and all
payments which may be required to be made under this Agreement
following such breach and shall relieve the Company of any obligation
to make such payments.
b. The Employee acknowledges that his compliance with the covenants in
Sections 6 and 7 hereof is necessary to protect the good will and
other proprietary interests of the Company and that, in the event of
any violation by the Employee of the provisions of Section 6 or 7
hereof, the Company will sustain serious, irreparable and substantial
harm to its business, the extent of which will be difficult to
determine and impossible to remedy by an action at law for money
damages. Accordingly, the Employee agrees that, in the event of such
violation or threatened violation by the Employee, the Company shall
be entitle to an injunction before trial from any court of competent
jurisdiction as a matter of course and upon the posting of not more
than a nominal bond in addition to all such other legal and equitable
remedies as may be available to the Company.
c. The rights and remedies of the Company as provided in this Section 8
shall be cumulative and concurrent and may be pursued separately,
successively or together against Employee, at the sole discretion of
the Company, and may be exercised as often as occasion therefor shall
arise. The failure to exercise any right or remedy shall in no event
be construed as a waiver or release thereof.
d. The Employee agrees to reimburse the Company for any expenses incurred
by it in enforcing the provisions of Sections 6 and 7 hereof if the
Company prevails in that enforcement.
9. INVENTIONS
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Employee agrees to promptly disclose to the Company each discovery,
improvement, or invention conceived, made, or reduced to practice (whether
during working hours or otherwise) during the term of employment. Employee
agrees to grant to the Company the entire interest in all of such
discoveries, improvements, and inventions and to sign all patent/copyright
applications or other documents needed to implement the provisions of this
paragraph without additional consideration. Employee further agrees that
all works of authorship subject to statutory copyright protection developed
jointly or solely, while employed, shall be considered a work made for hire
and any copyright thereon shall belong to the Company. Any invention,
discovery or improvement conceived, made or disclosed during the one year
period following the termination of employment with the Company shall be
deemed to have been made, conceived or discovered during employment with
the Company.
Employee acknowledges any discoveries, improvements and other inventions
made prior to the date of initial employment with the Company or the date
hereof, which have not been filed in the United States Patent Office, are
attached on Exhibit A, which shall be executed by both the Employee and the
Company.
10. NO CURRENT CONFLICT
Employee hereby assures the Company that he is not currently restricted by
any existing employment or non-compete agreement that would conflict with
the terms of this Agreement.
11. TERM; TERMINATION AND TERMINATION BENEFITS
a. Employment is "at will" which means that either the Company or
Employee may terminate at any time, with or without cause or good
reason, upon written notice given at least 30 days prior to
termination.
b. This Agreement shall terminate upon the death of the Employee. In
addition, if, as a result of a mental or physical condition which, in
the reasonable opinion of a medical doctor selected by the Company's
Board of Directors, can be expected to be permanent or to be of an
indefinite duration and which renders the Employee unable to carry out
the job responsibilities held by, or the tasks assigned to, the
Employee immediately prior to the time the disabling condition was
incurred, or which entitles the Employee to receive disability
payments under any long-term disability insurance policy which covers
the Employee for which the premiums are reimbursed by the Company (a
"Disability"), the Employee shall have been absent from his duties
hereunder on a full-time basis for 120 consecutive days, or 180 days
during any twelve month period, and within thirty (30) days after
written notice (which may occur before or after the end of such 120 or
180 day period) by the Company to Employee of the Company's intent to
terminate the Employee's employment by reason of such Disability, the
Employee shall not have returned to the performance of his duties
hereunder, the Employee's employment hereunder
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shall, without further notice, terminate at the end of said thirty-day
notice.
c. The Company may also terminate the Employee's employment under this
Agreement for Cause. For purposes of this Agreement the Company shall
have "Cause" to terminate the Employee's employment if the Employee,
in the reasonable judgment of the Company, (i) fails to perform any
reasonable directive of the Company that may be given from time to
time for the conduct of the Company's business; (ii) materially
breaches any of his commitments, duties or obligations under this
Agreement; (iii) embezzles or converts to his own use any funds of the
Company or any business opportunity of the Company; (iv) destroys or
converts to his own use any property of the Company, without the
Company's consent; (v) is convicted of, or indicted for, or enters a
guilty plea or plea of no contest with respect to, a felony; (vi) is
adjudicated an incompetent or (vii) violates any federal, state, local
or other law applicable to the business of the Company or engages in
any conduct which, in the reasonable judgment of the Company, is
injurious to the business or interests of the Company. The Company
must give the Employee written notice of the Employee's breach under
sections 11.c.(i.), 11.c.(ii), and 11.c.(vii) and an opportunity to
cure within fifteen (15) days of such written notice. If the Employee
fails to cure, the Company may terminate the Employee for Cause and
shall give notice of termination to the Employee as required under
Section 11.a.
d. Upon any termination of this Agreement, the Company shall have no
further obligation to Employee other than for annual salary and bonus
earned through the date of termination, and no severance pay or other
benefits of any kind shall be payable; provided, however, that in the
event the Company terminates this Agreement other than for Cause or as
a result of the death or Disability of the Employee, the Company shall
provide to the Employee (i) severance equal to 100% of his
then-current annual salary and applicable prorated bonus, based on
100% performance, payable in one lump sum in accordance with the
Company's policy and (ii) continuation of Benefits (as hereafter
defined), subject to applicable benefit plan provisions, for one year.
e. Notwithstanding any contrary provision contained in this Agreement,
upon the first occurrence of a Trigger Event (as hereafter defined),
the Employee shall be entitled to receive (i) severance equal to 100%
of his then-current annual salary and applicable prorated bonus, based
on 100% performance, payable in one lump sum in accordance with the
Company's policy; (ii) continuation of Benefits (as hereafter
defined), subject to applicable benefit plan provisions, for one year;
and (iii) accelerated vesting of all stock options, such that all
stock options held by Employee immediately prior to the date of the
Change of Control (as hereafter defined) shall become exercisable in
full as of the date of the Change of Control.
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The term "Benefits" as utilized in this Section 11, shall mean
standard health, dental, disability, life and accident insurance
benefits, all of which are subject to any applicable premium co-pay,
and car allowance.
The term "Trigger Event" as utilized in this Section 11 shall mean the
occurrence of a Change of Control (as hereafter defined) in connection
with or after which either (i) the Employee is terminated other than
for Cause; (ii) the Employee resigns his employment within 60 days
after the Change of Control because neither the Company nor the other
party to the Change of Control (the "Buyer") offers the Employee a
position with comparable responsibilities, authority, location and
compensation; or (iii) the Employee is employed by the Company or the
Buyer, or a division or subsidiary thereof, for one year after the
date of the Change in Control.
The term "Change of Control", as utilized herein, shall mean:
(i) A change of control of a nature that would be required to be
reported in the Company's proxy statement under the Securities
Exchange Act of 1934, as amended;
(ii) The approval by the Board of Directors of a sale, not in the
ordinary course of business, of all or substantially all of the
Company's assets and business to an unrelated third party and the
consummation of such transaction; or
(iii) The approval by the Board of Directors of any merger,
consolidation, or like business combination or reorganization of
the Company, the consummation of which would result in the
occurrence of any event described in clause (i) or (ii) above,
and the consummation of such transaction.
In order to implement the provisions of this Section 11.e., in
connection with any Change of Control, the Company shall, as a
condition thereto, accelerate the vesting of all unvested stock
options as of the date of the Change of Control or cause the Buyer to
either assume all stock options held by the Employee immediately prior
to the Change of Control or grant equivalent substitute options
containing substantially the same terms, and the Company shall not
otherwise take any action that would cause any stock options held by
the Employee that are not then exercisable to terminate prior to the
Change of Control or Trigger Event, as otherwise permitted by the
Company's 2003 Stock Option Plan or as may be permitted by the Buyer's
stock option plan, respectively.
f. Not withstanding any contrary provision contained in this Agreement,
Employee will base salary for one year paid in equal installments per
the Company's payroll policy, if their responsibilities, location, or
reporting relationships have been significantly mitigated and
diminished and the Employee leaves the employment of the Company. If
Employee secures full time employment before expiration of one years
base salary
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is paid, further compensation will be terminated on Employee's first
day of employment in the new position.
12. MISCELLANEOUS
a. This Agreement and any disputes arising herefrom shall be governed by
Pennsylvania law.
b. In the event that any provision of this Agreement is held to be
invalid or unenforceable for any reason, including without limitation
the geographic or business scope or duration thereof, this Agreement
shall be construed as if such provision had been more narrowly drawn
so as not to be invalid or unenforceable.
c. This Agreement supersedes all prior agreements, arrangements, and
understandings, written or oral, relating to the subject matter.
d. The failure of either party at any time or times to require
performance of any provision hereof shall in no way affect the right
at a later time to enforce the same. No waiver by either party of any
condition or of the breach by the other of any term or covenant
contained in this Agreement shall be effective unless in writing and
signed by the aggrieved party. A waiver by a party hereto in any one
or more instances shall not be deemed or construed as a further or
continuing waiver of any such condition or breach or a waiver of any
other condition, or of the breach of any other term or covenant set
forth in this Agreement.
e. Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given when
delivered in person, sent by certified mail, postage prepaid, or
delivered by a nationally recognized overnight delivery service
addressed, if to the Company at 00 X. 00xx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxxxx, XX 00000 Attn: President and if to the Employee, at the
address of his personal residence as maintained in the Company's
records.
For Employee: For the Company:
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Name:
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Date: Date:
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