EMPLOYMENT AND NON-COMPETITION AGREEMENT
BETWEEN
XXXXX XXXX
AND
PHARMACEUTICAL RESEARCH ASSOCIATES INC.
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of the __th day of
June, 2004 (the "Effective Date"), by and between Pharmaceutical Research
Associates Inc., a Canadian corporation ("Employer"), which is a wholly-owned
subsidiary of PRA International, Inc., a Delaware corporation ("PRAI"), and
Xxxxx Xxxx ("Employee").
WHEREAS Employee previously entered into an Employment and Non-Competition
Agreement with CroMedica International Inc. which became effective upon June 19,
2002 (the "June 19, 2002 Employment and Non-Competition Agreement"), the date of
the closing ("Closing") of the transactions contemplated by a Share Purchase
Agreement by and among PRA Holdings, Inc. and 4063988 Canada Inc. whereby PRA
Holdings, Inc. indirectly acquired all of the issued and outstanding shares in
the capital of CroMedica International, Inc. from, inter alia, the Employee (the
"Share Purchase Agreement");
WHEREAS in connection with the Share Purchase Agreement, and as a
condition precedent thereto, Employee agreed that he would not, for a period of
two years following the termination of the June 19, 2002 Employment and
Non-Competition Agreement, compete with the Business (as hereinafter defined);
WHEREAS the benefit of the non-competition covenant of the Employee formed
part of the purchase price under the Share Purchase Agreement;
WHEREAS Employer is an affiliate of the former CroMedica International
Inc. (now named Pharmaceutical Research Associates International Inc.);
WHEREAS Employer and Employee desire to amend the terms of the June 19,
2002 Employment and Non-Competition Agreement and to preserve the covenants of
the Employee in the 2002 Employment and Non-Competition Agreement for the
benefit of the Business and to novate the 2002 Employment and Non-Competition
Agreement;
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WHEREAS by entering into this Agreement, the terms of the Employee's
employment with Employer will be governed by the terms and conditions of this
Agreement, and any other prior agreement between Employee and Employer or
Employer's affiliates (specifically the June 19, 2002 Employment and
Non-Competition Agreement) relating to the Employee's employment with the
Employer or any of its affiliated entities will be superseded by the terms of
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth below, which consideration is acknowledged by both parties
to be good and sufficient, the parties hereto agree as follows:
1. Position. Employer hereby agrees to employ Employee as of the
Effective Date (as defined herein) and Employee hereby accepts employment as of
the Effective Date in the position of Executive Vice President and Chief
Scientific Officer, with appropriate title, rank, status and responsibilities as
determined from time to time by Employer upon the terms and conditions
hereinafter set forth.
2. Employment Period.
(a) The period of employment under this Agreement shall begin on
the Effective Date and shall end on January 15, 2006, unless terminated sooner
pursuant to Section 5 of this Agreement.
(b) This Agreement shall be renewed upon the same terms and
conditions, for a successive period of one year (subject to further renewals
using the same process), unless otherwise terminated in accordance with the
provisions of Section 5 of this Agreement.
(c) The period during which Employee is employed under the terms
of this Agreement is the "Employment Period."
3. Duties. The Board of Directors of Employer (the "Board") shall have
the power to determine the specific duties that shall be performed by Employee
and the means and manner by which those duties shall be performed, but such
duties shall be consistent with the executive position of Employee.
(a) During the Employment Period, Employee agrees to use his best
efforts in the business of Employer and to devote his full time, skill,
attention and energies to the business of Employer, allowing however, time for
Permitted Activities as specified in Section 3(c) below. Employee shall not be
engaged in any other business activity which shall be competitive with the
business of Employer (except for activities associated with the Phase I business
of Global Biomedical Capital Corp. as such activities are conducted as of the
Closing) or
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which may (i) interfere with Employee's ability to discharge his
responsibilities to Employer; or (ii) detract from the business of Employer.
Employee shall not:
(i) work either on a part-time or independent contracting
basis for any other company, business or enterprise without the prior written
consent of the Board (excluding (A) teaching, (B) clinical practice in
neuropsychology, (C) activities of Global Biomedical Capital Corp. or any of its
subsidiaries that do not compete with the business of the Employer or any of its
affiliates, and (D) those professional societies, boards or academic
appointments on which Employee serves as of the date of this Agreement listed on
Exhibit A hereto (collectively, the "Permitted Activities")); or
(ii) serve on the board of directors or comparable governing
body of any other material business, civic or community corporation or similar
entity without the prior written consent of the Board (excluding those positions
Employee holds and boards of directors on which Employee serves as of the date
of this Agreement, which positions and boards, if any, are listed on Exhibit A
hereto), such consent which shall not be unreasonably withheld.
(b) Employee agrees to use his reasonable efforts to impart his
skill and knowledge relating to the business of Employer to such individuals as
are designated by Employer, and to train such individuals in the aspects of the
business with which Employee is familiar. In addition, at the request of
Employer and without additional compensation, Employee shall use his best
efforts to record and document his knowledge relating to the business of
Employer.
(c) Notwithstanding any other provision of this Agreement to the
contrary, in no event shall Employee's commitments, obligations and services
with respect to the Permitted Activities (i) exceed thirteen (13) business days
each quarter and (ii) together with the paid time off and vacation days
described in Section 4(d) below, exceed 52 business days each year.
4. Base Salary, Increases, Benefits, Expenses. For all services
rendered by Employee under this Agreement, for, and in consideration of,
Employee's agreements and undertaking contained in this Agreement (including,
without limitation, those contained in Sections 9 and 10 below), and, subject to
Sections 5, 6, 7 and 8 below, during the Employment Period, Employer shall
provide Employee with the following:
(a) Employer shall pay to Employee, in equal bi-monthly
installments, a base salary of CDN$375,000 per year, less relevant deductions.
(b) Employee shall be eligible for salary increases, which may be
based on performance and/or cost-of-living factors, as determined under the
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provisions of any salary policy of Employer that is generally applicable to
Employer's executive employees, provided that any such increases shall be
reviewed and approved in advance by the Board. Employee shall be eligible for
such other increases in compensation as are otherwise imposed by the Board, in
its discretion, from time to time.
(c) Employee shall participate in an Executive Bonus Plan approved
by the Board with a minimum annual bonus target of CDN$145,000, less relevant
deductions.
(d) Employee shall be eligible to participate in Employer's
standard benefits programs, which presently include health, life and disability
insurance, as well as those additional benefits (the "Additional Benefits")
currently offered to Employer's executive staff, including additional life and
disability insurance, club membership and monthly car allowance, as described in
Exhibit B. It is agreed that the nature and amount of the Additional Benefits,
if any, shall be determined from time to time by the Board, in its discretion,
provided that no benefits will be materially reduced. Employer may, at its
election, maintain policies of life and disability insurance on Employee, with
Employer or an affiliate of Employer as beneficiary, and Employee shall
cooperate as necessary to obtain such policies and to keep them in force.
Employee shall be entitled to a total of twenty-seven (27) days of paid time off
per year (which number of days shall include any days off associated with the
Permitted Activities), however, paid time off will not accrue to Employee and
Employee will not be entitled to a payout for unused paid time off in the event
of employment termination except as may be required by applicable legislation.
In addition, such paid time off may not be carried forward to a subsequent year,
except as may be required by applicable legislation. In addition to the paid
time off, Employee shall be entitled to twenty-five (25) days of vacation per
year, unless inconsistent with applicable law. Employee shall be covered by the
holiday policy of the Employer, and, unless inconsistent with applicable law, by
any other pension or retirement plan, disability benefit plan or any other
benefit plan or arrangement of Employer (other than a medical or life insurance
plan) presently or hereafter existing for the benefit of officers or employees
of Employer generally, and determined by the Board to be applicable to Employee.
(e) Subject to such conditions as Employer may from time to time
determine, Employer shall reimburse Employee for reasonable expenses incurred by
Employee in connection with the business of Employer and the performance of
Employee's duties hereunder.
(f) It is understood and agreed that the Board will review
compensation matters of Employer on a regular basis, and will (on at least an
annual basis) set all annual bonus targets, salary increases and benefits in
which Employee shall be eligible to participate.
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(g) Employee, from time to time, may be granted stock options
under the terms of a stock option plan established by PRA Holdings, Inc.
("Parent"). All matters involving stock options, their vesting, their exercise,
their termination and the rights to repurchase with respect to such options (or
shares that might be issued to or held by Employee upon exercise of such
options) will be addressed in a separate option agreement with Employee,
substantially in the form attached hereto as Exhibit C.
5. Termination. This Agreement may be terminated under the following
circumstances, having the consequences described in Sections 6, 7 and 8:
(a) Nonrenewal. Either party may decline to renew the Agreement by
giving written notice to the other of a determination not to renew employment.
If Employer determines not to renew this Agreement, it shall give at least
ninety (90) days' written notice prior to the expiration of the then-effective
term. If Employee determines not to renew this Agreement, Employee shall give at
least ninety (90) days' written notice prior to the expiration of the
then-effective term.
(b) Death of Employee. This Agreement shall terminate immediately
upon the death of Employee.
(c) Termination by Employer for Disability of Employee. If during
the Employment Period, Employee shall be prevented from performing his duties
for a continuous period of one hundred and eighty (180) days by reason of
disability that renders Employee physically or mentally incapable of performing
substantially all of his duties under this Agreement (excluding infrequent and
temporary absences due to illness), Employer may terminate Employee's employment
hereunder. If after a period of disability commences (but prior to termination
of Employee's employment), Employee returns to work for a period of at least
twenty (20) consecutive work days, the period of disability shall terminate and
not be counted towards any period of subsequent disability. For purposes of this
Agreement, Employer, upon the advice of a qualified and impartial physician,
shall determine whether Employee has become physically or mentally incapable of
performing substantially all of his duties under this Agreement. Employer shall
give Employee (or his guardian, as applicable) thirty (30) days' written notice
of termination of the Employment Period under this Section 5(c).
(d) Termination by Employer for Good Cause. Employer may terminate
Employee's employment at any time for Good Cause, immediately and without
notice. "Good Cause" includes, but is not limited to: (i) a material breach of
this Agreement by Employee (where Employee fails to cure such breach within ten
(10) business days after being notified in writing by Employer of such breach);
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(ii) Employee's willful failure to perform his material assigned duties without
an excuse that is reasonably acceptable to Employer; (iii) Employee engages in
an act (or causes an act) that has a material adverse impact on the reputation,
business, business relationships or financial condition of Employer; (iv) the
conviction of or plea of guilty or nolo contendre by Employee to any crime
involving moral turpitude, fraud or misrepresentation; (v) misappropriation or
embezzlement by Employee of funds or assets of Employer; or (vi) Employee's
willful refusal to perform specific directives of the Board or President & CEO
which are consistent with the scope, ethics and nature of Employee's duties and
responsibilities hereunder. Notwithstanding the foregoing, "Good Cause" shall
not include a situation whereby Employer asks Employee to relocate to another
city and Employee declines to do so. Termination by Employer for Good Cause
hereunder shall not abrogate the rights and remedies of Employer in respect of
the breach or wrongful act giving rise to such termination.
(e) Termination by Employee for Material Breach of Employer. This
Agreement may be terminated by Employee upon thirty (30) days' written notice
given to Employer after a material breach of this Agreement by Employer (where
Employer fails to cure such breach within ten (10) business days after being
notified in writing by Employee of such breach). Termination by Employee
hereunder shall not abrogate the rights and remedies of Employee in respect of
the breach giving rise to such termination.
(f) Termination by Employer Without Good Cause. This Agreement may
be terminated by Employer for reasons other than death, disability or Good Cause
upon sixty (60) days' written notice given to Employee or, at the sole
discretion of the Employer, sixty (60) days' pay in lieu of notice.
6. Consequences of Termination by Employer or Due to Certain Events.
(a) Nonrenewal by Employer; Termination Without Good Cause;
Termination for Death or Disability of Employee. In the event that this
Agreement is terminated pursuant to Section 5(a) by the Employer (nonrenewal),
or Section 5(f) (Without Good Cause), or pursuant to Sections 5(b) (Employee's
death) or 5(c) (Employee's disability):
(i) Employee shall receive any and all accrued but unpaid
base salary compensation (as well as any accrued and unpaid vacation) due to
Employee as of the date on which the Employment Period ends (the "Termination
Date"), which shall be paid on the Termination Date;
(ii) In addition, Employee shall receive severance payments
equal to the full base salary (payable bi-monthly at the same time
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Employee would otherwise receive such base salary if Employee were still
employed by Employer) for one year after the Termination Date;
(iii) Benefits pursuant to any of Employer's employee benefit
plans that Employee had been receiving during the Employment Period shall
continue for one year after the Termination Date; and
(iv) All options held by Employee will be addressed in
accordance with Employee's separate option agreement.
(b) Employment Standards Act. The severance amounts in Section
6(a)(ii) and benefit continuation in Section 6(a)(iii) are inclusive of any
payments and/or benefit continuation that may be required by applicable
Employment Standards Act legislation and have been agreed upon with reference to
Employee's length of service with Employer. Employee further agrees that except
as set out in the Agreement, Employee is not entitled to any further notice or
pay in lieu of notice in respect of a termination under Section 5.
(c) General Release. Employer's obligation to make any severance
payments or provide any benefits under Section 6(a)(ii) and 6(a)(iii) over and
above Employee's Employment Standards Act entitlement is conditioned upon
Employee's execution of a general release in the form provided by Employer at
the Termination Date.
(d) For Good Cause. In the event that Employer terminates this
Agreement for Good Cause pursuant to Section 5(d) above:
(i) On the Termination Date, Employee shall receive any and
all accrued but unpaid base salary compensation (as well as any accrued and
unpaid vacation) due to Employee as of the Termination Date; and
(ii) All options held by Employee will be addressed in
accordance with Employee's separate option agreement.
7. Consequences of Termination by Employee.
(a) Nonrenewal. In the event that Employee terminates this
Agreement pursuant to Section 5(a) (nonrenewal):
(i) On the Termination Date, Employee shall receive any and
all accrued but unpaid base salary compensation (as well as any accrued and
unpaid vacation) due to Employee as of the Termination Date; and
(ii) All options held by Employee will be addressed in
accordance with Employee's separate option agreement.
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(b) Material Breach of Employer. In the event that Employee
terminates this Agreement for a material breach by Employer pursuant to Section
5(e) above:
(i) Employee shall receive any and all accrued but unpaid
base salary compensation (as well as any accrued and unpaid vacation) due to
Employee as of the Termination Date, which will be paid on the Termination Date;
(ii) In addition, Employee shall receive severance payments
equal to the full base salary (payable bi-monthly at the same time Employee
would otherwise receive such base salary if Employee were still employed by
Employer) for one year after the Termination Date;
(iii) Benefits pursuant to any of Employer's employee benefit
plans which Employee had been receiving during the Employment Period shall
continue for one year after the Termination Date; and
(iv) All options held by Employee will be addressed in
accordance with Employee's separate option agreement.
(c) Employment Standards Act. The severance amounts in Section
7(b)(ii) and benefit continuation in Section 7(b)(iii) are inclusive of any
payments and/or benefit continuation that may be required by applicable
Employment Standards Act legislation and have been agreed upon with reference to
Employee's length of service with Employer. Employee further agrees that except
as set out in the Agreement, Employee is not entitled to any further notice or
pay in lieu of notice in respect of a termination under Section 5.
8. Survival of Sections of this Agreement. Without regard to the reason
for termination of this Agreement or the employment of Employee, and
notwithstanding anything contained in this Agreement to the contrary, it is
expressly understood and agreed that Employee's obligations under Sections 9,
10, 11 and 12 of this Agreement shall survive termination of this Agreement in
any and all events.
9. Confidential Information and Certain Property Matters.
(a) Employee recognizes that information, knowledge, contacts and
experience relating to the businesses, operations, properties, assets,
liabilities and financial condition of Employer and the markets and industries
in which it operates, including, without limitation, information relating to
business plans and ideas, trade secrets, intellectual property, know-how,
formulas, processes, research and development, methods, policies, materials,
results of operations,
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financial and statistical data, personnel data and customers in and related to
the markets and industries in which Employer operates ("Confidential
Information"), is considered by Employer to be valuable, secret, confidential
and proprietary. Employee hereby acknowledges and agrees that the Confidential
Information is valuable, secret, confidential and proprietary to Employer, and
further agrees that he shall not, at any time (whether during or after the
Employment Period), make public, disclose, divulge, furnish, release, transfer,
sell or otherwise make available to any person any of the Confidential
Information, or otherwise use any of the same or allow any of the same to be
used for any purpose, other than as may be permitted to Employee under this
Agreement. Notwithstanding the foregoing, Employee may, without violating this
Section 9(a), disclose Confidential Information if (i) such disclosure is
required to comply with a valid court order or any administrative law order or
decree; (ii) Employee gives Employer advance written notice of the required
disclosure so that Employer may, if it wishes, seek an appropriate protective
order; and (iii) Employee, in any event, requests that any disclosed information
be afforded confidential treatment, to the greatest extent possible.
(b) Employee shall fully disclose to Employer all Inventions made
or conceived by him during the Employment Period that would be deemed
applicable, useful or otherwise beneficial to or in respect of the current
business of Employer, in whole or in part. "Inventions" include, but are not
limited to, customer list compilations, machinery, apparatus, products,
processes, results of research and development (including without limitation
results that constitute trade secrets, ideas and writings), computer hardware,
information systems, software (including without limitation source code, object
code, documentation, diagrams and flow charts) and any other discoveries,
concepts and ideas, whether patentable or not (including without limitation
processes, methods, formulas, and techniques, as well as improvements thereof or
know-how related thereto, concerning any present or prospective business
activities of Employer). Any and all Inventions shall be the absolute property
of Employer or its designees, and Employee acknowledges that he shall have no
interest whatsoever in such Inventions. At the request of Employer and without
additional compensation, Employee (i) shall make application in due form for
United States letters patent and foreign letters patent on such Inventions, and
shall assign to Employer all his right, title and interest in such Inventions;
(ii) shall execute any and all instruments and do any and all acts necessary or
desirable in connection with any such application for letters patent or in order
to establish and perfect in Employer the entire right, title and interest in
such Inventions, patent applications or patents; and (iii) shall execute any
instruments necessary or desirable in connection with any continuations,
renewals or reissues thereof or in the conduct of any related proceedings or
litigation. Except as authorized by Employer in writing, Employee shall not
disclose, directly or indirectly, to any person other than Employer, any
information relating to any Invention or any patent application relating
thereto.
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(c) Employee hereby acknowledges and agrees that the work
performed by Employee pursuant to his employment by Employer will be
specifically ordered or commissioned by Employer, and that such work shall be
considered a "work for hire" as defined in the Copyright Revision Act of 1976
(the "Act"), granting Employer full ownership to the work and all rights
comprised therein. In addition, Employee hereby waives in favour of Employer any
and all moral rights in the work contemplated by this Section 9(c) that Employer
now has or in the future may have. Should any work not fall within the
definition of a "work for hire" as set forth in such Act, Employee hereby
transfers and assigns to Employer full ownership of the copyright to the work
and all rights comprised therein. Employee shall sign all applications for
registration of such copyright as are requested by Employer, and shall sign all
other writings and instruments and perform all other acts necessary or desirable
to carry out the terms of this Agreement.
10. Covenant Not to Compete.
(a) Employee agrees that during the Employment Period and, subject
to Section 10(b), for a period of one (1) year following the Termination Date
(the "Noncompetition Period"), except for the ownership of publicly traded stock
of a company in an amount less than one percent (1.0%) of the issued shares of
that company, he shall not directly or indirectly own, manage, operate, join,
advise, consult, control or participate in the ownership, management, operation
or control of, or be connected in any manner with: (i) any person or entity
whose principal business (or the principal business of any of its affiliates)
competes with the Business; or (ii) any person or entity who proposes to engage
in a business that competes with the Business, in each case in any jurisdiction
in which Employer or its affiliates engage in the Business, have been requested
to engage in the Business or reasonably intend to engage in the Business based
upon contracts entered into or reasonably expected to be entered into with
customers and clients of Employer or its affiliates during the Employment
Period. During the Noncompetition Period, Employee agrees that he shall not
offer to any person any services that compete with the Business in any
jurisdiction in which Employer or its affiliates engage in the Business, have
been requested to engage in the Business or reasonably intend to engage in the
Business based upon contracts entered into or reasonably expected to be entered
into with customers and clients of Employer or its affiliates during the
Employment Period. "Business" as used herein means any business that is a
contract research organization (CRO) or performs or provides similar clinical
drug or pharmaceutical development services to or for any other company or
entity on a contract or outsourced basis.
(b) Notwithstanding the foregoing Section 10(a), Employee agrees
that if the Termination Date is on or before June 19, 2004, the
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"Noncompetition Period" shall be a period of two (2) years following the
Termination Date.
(c) Notwithstanding any other provisions of this Agreement,
Employee and Employer agree that in the event that the Termination Date is after
June 19, 2004, Employer may, in its sole discretion, provide notice to Employee
no later than thirty (30) days following the Termination Date to extend the
Noncompetition Period for a period of one (1) additional year following the date
the original Noncompetition Period would otherwise end (the "Extension Period")
and, in consideration therefore, pay employee during the Extension Period
payments equal to twelve (12) months base salary (payable bi-monthly at the same
time Employee would otherwise receive such base salary if Employee were still
employed by Employer) and continue benefits that Employee had been receiving
during the Employment Period during the Extension Period. Should Employer so
elect to extend the Noncompetition Period, Employee hereby agrees to be bound by
and subject to the provisions of this Section 10 for such Extension Period.
(d) Employee agrees that he shall not, during the Noncompetition
Period, directly or indirectly solicit the trade of, or trade with, with respect
to the Business, any person who is a client, customer or supplier of Employer or
any of its affiliates at the time of termination of this Agreement, unless
Employee receives the prior written consent of the Board to do so, such consent
which shall not be unreasonably withheld.
(e) Employee agrees that he shall not, during the Noncompetition
Period, directly or indirectly, solicit or induce (or attempt to solicit or
induce) to leave the employ of Employer or any of its affiliates for any reason
whatsoever any person employed by Employer or any of its affiliates at the time
of the act of solicitation or inducement.
(f) During and after the Employment Period, Employee agrees not to
disparage Employer or any of its affiliates. During and after the Employment
Period, Employer, PRAI and Parent agree not to disparage the character of
Employee.
(g) Employee hereby specifically acknowledges and agrees that the
provisions of this Section 10 are reasonable and necessary to protect the
legitimate interests of Employer, and that Employee desires to agree to the
provisions of this Section 10. In the event that any of the provisions of this
Section 10 should ever be held to exceed the time, scope or geographic
limitations permitted by applicable law, it is hereby declared to be the
intention of the parties hereto that such provision be reformed to reflect the
maximum time, scope and geographic limitations that are permitted by such law.
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(h) Employee hereby acknowledges and agrees that, owing to the
special, unique and extraordinary nature of the matters covered by this Section
10, in the event of any breach or threatened breach by Employee of any of the
provisions hereof, Employer would suffer substantial and irreparable injury,
which could not be fully compensated by monetary award alone, and Employer would
not have adequate remedy at law. Therefore, Employee agrees that, in such event,
Employer shall be entitled to temporary and/or permanent injunctive relief
against Employee, without the necessity of proving actual damages or of posting
bond to enforce any of the provisions of this Section 10, and Employee hereby
waives the defenses, claims, or arguments that the matters are not special,
unique, and extraordinary, that Employer must prove actual damages, and that
Employer has an adequate remedy at law.
(i) Employee further agrees that the rights and remedies described
in this Section 10 are cumulative and shall be in addition to and not in lieu of
any other rights and remedies otherwise available under this Agreement, or at
law or in equity, including but not limited to monetary damages.
(i) Notwithstanding any other provision of this Agreement,
Employee further agrees that in the event of any breach by Employee of any of
the provisions of this Section 10, all obligations and liabilities of Employer
under this Agreement (including, but not limited to, Sections 6 and 7 hereof)
shall immediately terminate and be extinguished.
11. Records. Upon termination of this Agreement for any reason, Employee
shall promptly deliver to Employer all property of Employer then in Employee's
possession or under his control, including but not limited to: (i) any and all
correspondence, mailing lists, drawings, blueprints, manuals, letters, records,
notes, notebooks, reports, flow-charts, programs, proposals, computer tapes,
discs and diskettes; (ii) any and all documents concerning or relating to
Employer's business, clients, customers, investors or lenders, or concerning
products, processes or technologies used by Employer; and (iii) any and all
documents or materials containing or constituting Confidential Information.
12. Arbitration. Except with respect to matters involving equitable
remedies (in which case any such matter may be brought in a court of competent
jurisdiction), all disputes between Employer and Employee hereunder, or
otherwise arising out of the employment or termination of employment of
Employee, including but not limited to disputes arising under any state,
provincial or federal employment discrimination law, shall be settled by
arbitration pursuant to the rules of the American Arbitration Association, in
Vancouver, British Columbia. Arbitration hereunder shall be by a single
arbitrator appointed by mutual agreement of the parties. The award rendered by
the arbitrator shall be conclusive
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and binding upon the parties hereto. Each party shall pay its own expenses of
arbitration and the expenses of the arbitrator shall be equally shared.
13. Entire Agreement. This Agreement (together with Exhibit A, Exhibit B
and Exhibit C hereto) supersedes and terminates any and all prior agreements or
contracts, written or oral, entered into between Employer and Employee with
regard to the subject matter hereof, including without limitation that certain
June 19, 2002 Employment and Non-Competition Agreement. Employee acknowledges
and agrees that Employee is not entitled to any salary, bonus, benefits,
severance, deferred compensation or similar payments from Employer or any of its
affiliates except as expressly set forth herein. This instrument contains the
entire agreement between Employer and Employee regarding the employment of
Employee by Employer, and any representation, promise or condition in connection
therewith not in writing shall not be binding upon either party. No amendment,
alteration or modification of this Agreement shall be valid unless in each
instance such amendment, alteration or modification is expressed in a written
instrument duly executed in the name of the party or parties making such
amendment, alteration or modification.
14. Severability. The provisions of this Agreement shall be deemed
severable, and if any part of any provision is held to be illegal, void,
voidable, invalid, nonbinding or unenforceable in its entirety or partially or
as to any party, for any reason, such provision may be changed, consistent with
the intent of the parties hereto, to the extent reasonably necessary to make the
provision, as so changed, legal, valid, binding and enforceable. If any
provision of this Agreement is held to be illegal, void, voidable, invalid,
nonbinding or unenforceable in its entirety or partially or as to any party, for
any reason, and if such provision cannot be changed consistent with the intent
of the parties hereto to make it fully legal, valid, binding and enforceable,
then such provision shall be stricken from this Agreement, and the remaining
provisions of this Agreement shall not in any way be affected or impaired, but
shall remain in full force and effect.
15. Governing Law. This Agreement is to be governed by and interpreted
under the laws of the Province of British Columbia and the laws of Canada
applicable therein.
16. Headings; Form of Words. The headings contained in this Agreement
have been inserted for the convenience of reference only, and neither such
headings nor the placement of any term hereof under any particular heading shall
in any way restrict or modify any of the terms or provisions hereof. Terms used
in the singular shall be read in the plural, and vice versa, and terms used in
the masculine gender shall be read in the feminine or neuter gender when the
context so requires. The term "person" as used herein refers to a natural
person, a
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corporation, a limited liability company, a partnership, a joint venture, or
other entity or association, as the context requires.
17. Notices. All notices, requests, consents, payments, demands and
other communications required or contemplated under this Agreement ("Notices")
shall be in writing and (a) personally delivered; (b) deposited in the Canadian
or United States mail, registered or certified mail, return receipt requested,
with postage prepaid; or (c) sent by Federal Express or other nationally
recognized overnight delivery service (for next business day delivery), shipping
prepaid, as follows:
If to Employer, to:
Pharmaceutical Research Associates, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, XX 00000
Attn: President and Chief Executive Officer
With a copy (which shall not constitute notice) to :
Genstar Capital, L.P.
Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xx 00000
Attn : Xxxx-Xxxxxx X. Xxxxx
If to Employee, to:
Xxxxx Xxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
X0X 0X0
or such other persons or address as any party may request by notice given as
aforesaid. Notices shall be deemed given and received at the time of personal
delivery or, if sent by Canadian or U.S. mail, five (5) business days after the
date mailed in the manner set forth in this Section 17, or, if sent by Federal
Express or other nationally recognized overnight delivery service, one business
day after such sending.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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19. Successors and Assigns. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors, assigns, heirs and representatives of the parties
hereto, whether so expressed or not. Neither this Agreement nor any of the
rights and obligations hereunder shall be assigned, delegated, sold,
transferred, sublicensed or otherwise disposed of, by operation of law or
otherwise, without the prior written consent of the other party hereto.
20. Cooperation. Each party to this Agreement agrees to cooperate with
the other party hereto to carry out the purpose and intent of this Agreement,
including without limitation the execution and delivery to the appropriate party
of all such further documents as may reasonably be required in order to carry
out the terms of this Agreement.
21. Waiver. Any waiver of any provision hereof (or in any related
document or instrument) shall not be effective unless made expressly and in a
writing executed in the name of the party sought to be charged. The failure of
any party to insist, in any one or more instances, on performance of any of the
terms or conditions of this Agreement shall not be construed as a waiver or
relinquishment of any rights granted hereunder or of the future performance of
any such term, covenant or condition, but the obligations of the parties with
respect thereto shall continue in full force and effect.
22. Indemnification. Employee shall be entitled to be indemnified by
Employer to the fullest extent permitted by the Canada Business Corporations
Act, consistent with Employer's Articles of Incorporation. Employer further
agrees to indemnify Employee to the extent permitted under applicable law for
all actions taken in good faith within the scope, and in the course, of
Employee's employment under this Agreement during the Employment Period for the
life of any claim.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
Employer: PHARMACEUTICAL RESEARCH
ASSOCIATES INC. (a Canadian corporation)
By: /s/ Xxxxxxx X. Xxxxxxxx
______________________________________
Print Name: Xxxxxxx X. Xxxxxxxx
Print Title: President & CEO
Employee: /s/ Xxxxx Xxxx
_________________________________________
Print Name: Xxxxx Xxxx
