Exhibit 10.8
Execution Copy
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EMPLOYMENT AND NON-COMPETITION AGREEMENT
BETWEEN
EARLE MARTIN
AND
PHARMACEUTICAL RESEARCH ASSOCIATES, INC.
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 11th day of
October, 1996, by and between Pharmaceutical Research Associates, Inc., a
Virginia corporation (hereinafter called "Employer"), having its principal
office in the Commonwealth of Virginia, and Earle Martin, (hereinafter called
"Employee").
WHEREAS, Employer and Employee desire to enter into an agreement for the
employment by Employer of Employee.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby covenant and
agree as follows:
1. Position. Employer hereby employs Employee and Employee hereby accepts
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employment in the position of President, with appropriate title, rank, status
and responsibilities as determined from time to time by Employer upon the terms
and conditions hereinafter set forth.
2. Term. The period of employment under this Agreement shall begin on the
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date of this Agreement (the "Effective Date"), and shall end on November 1, 1998
(the "First Termination Date"), unless sooner terminated pursuant to Section 7
hereof. After the First Termination Date, employment hereunder shall be deemed
to be renewed automatically, upon the same terms and conditions, for
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successive periods of one year each, until either party, at least ninety (90)
days prior to the expiration of the First Termination Date or any successive
term, as applicable, shall give written notice to the other of a determination
not to renew such employment. Notwithstanding the foregoing, Employee's
employment hereunder shall be terminable at any time, and from time to time, in
accordance with the provisions of Section 7 of this Agreement. Subject to
Section 7(d) of this Agreement, the period during which (a) Employee is employed
under the terms of this Agreement and (b) this Agreement is in force (other than
with respect to the provisions that survive termination of this Agreement),
shall be known hereafter as the "Term".
3. Duties.
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(a) During the Term, 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, and shall not, during the Term, be engaged in any
other business activity which shall be competitive with the business of Employer
or which may (i) interfere with Employee's ability to discharge his
responsibilities to Employer, or (ii) detract from the business of Employer.
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.
(b) In furtherance of the restrictions on the activities of Employee
set forth in Section 3(a) above, during the Term, Employee agrees:
(i) not to 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; and
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(ii) not to 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 boards of
directors on which Employee serves as of the date of this Agreement, which
boards, if any, are listed on Exhibit A hereto).
(c) 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.
4. Base Salary, Increases, Benefits, Expenses. For all services rendered
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by Employee under this Agreement and subject to Section 7 below, during the
Term, Employer shall provide Employee with the following:
(a) Commencing on the Effective Date, Employer shall pay to Employee,
in equal bi-monthly installments, a base salary of $125,000 per year.
(b) Employee shall be eligible for salary increases, which may be
based on performance and/or cost-of-living factors, as determined under the
provisions of any salary policy of Employer that is generally applicable to
Employer's employees, provided that any such increases shall be reviewed and
approved in advance by the Compensation Committee of the Board (the
"Compensation Committee"), and Employee shall be entitled to such other
increases in compensation as are otherwise imposed by the Compensation
Committee, in its discretion, from time to time.
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(c) Employee shall participate in Employer's 1996 Bonus Plan, as such
1996 Bonus Plan currently exists on the date of this Agreement.
(d) Employee shall 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,
health club membership and monthly car allowance. It is agreed that the nature
and amount of the Additional Benefits, if any, shall be determined from time to
time by the Compensation Committee, in its discretion. 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 (20) days of paid vacation per
year. 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 Compensation Committee to be applicable to Employee.
(e) Subject to such conditions as Employer may from time to time
determine, Employer shall pay or 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 Compensation Committee will
meet quarterly to review compensation matters of Employer, and will (on at least
an annual basis) set all
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annual bonus targets, salary increases and benefits to which Employee shall be
entitled to participate.
(g) It is the intention of Employer to have the Compensation Committee
recommend to the Board of Directors (the "PRADE Board") of PRA International,
Inc., a Delaware corporation and the parent company of Employer ("PRADE"), to
create, shortly after the date of this Agreement, an incentive based option plan
for key employees of Employer (the "ISO Plan"). It is expected that the ISO
Plan will consist of options for common stock of PRADE and will have key terms,
subject to alteration and amendment in the sole discretion of the PRADE Board in
consultation with the Compensation Committee, substantially similar to those set
forth on Exhibit B hereto as well as those contemplated by Section 8 of this
Agreement. At such time as the ISO Plan is created, Employee shall be entitled
to participate therein.
5. Confidential Information and Certain Property Matters.
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(a) Employee hereby acknowledges that, in the course of his employment
under this Agreement, he will be given access to or otherwise will come into
contact with and/or will possess, and that with respect to Employer's business
he already possesses, information, knowledge, contacts and experience relating
to the businesses, operations, properties, assets, liabilities and financial
condition of Employer and the markets and industries in which it operates,
including, without limitation, information relating to business plans and ideas,
trade secrets, intellectual property, know-how, formulas, processes, research
and development, methods, policies, materials, results of operations, financial
and statistical data, personnel data and customers in and related to the markets
and industries in which Employer operates (the "Confidential Information"),
which are considered by Employer to be valuable, secret, confidential and
proprietary. Employee hereby
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acknowledges and agrees that the Confidential Information is valuable, secret,
confidential and proprietary to Employer, and hereby undertakes and agrees that
he shall not, at any time (whether during or after the expiration of the Term),
or for any purpose, 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 including, but not limited to, contacting for any purpose
the personnel, customers or suppliers of Employer, other than as may be
permitted to Employee under this Agreement. Notwithstanding the foregoing,
Employee may, without violating this Section 5(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 hereby agrees to promptly and fully disclose to Employer
all Inventions made or conceived by him that would be deemed applicable, useful
or otherwise beneficial to or in respect of, the current business of Employer,
in whole or in part, during his employment with Employer. For the purposes of
this Agreement, "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
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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.
(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. 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.
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6. Covenant Not to Compete. (a) Employee agrees that during the Term and
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for a period of two years thereafter (the "Noncompetition Period"), 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, any business under any name similar to the name of
Employer or any other person whose principal business is (or the principal
business of any of its affiliates is) competitive with Employer or who proposes
to engage in a business competitive with Employer, or in any department or
division of any other person where such department or division is competitive
with Employer (where the nature of Employer's business is measured (i) if the
competitive act in question occurs during the Term, at the time the competitive
act in question is made by Employee, and (ii) if the competitive act in question
occurs after the Term, at the time Employee's employment is terminated
hereunder). During the Noncompetition Period, Employee agrees that he shall not
offer to any person any services that compete with or are substantially similar
to those provided by Employer (where the nature of Employer's business,
including the services provided by Employer, are measured (1) if the offer is
made during the Term, at the time the offer is made by Employee, and (2) if the
offer is made after the Term, at the time Employee's employment is terminated
hereunder).
(b) Employee agrees that he shall not engage in unfair competition
with Employer during the Noncompetition Period.
(c) Employee agrees that he shall not, during the Noncompetition
Period (after the Term), other than on behalf of Employer and consistent with
his duties as an employee of Employer, directly or indirectly solicit the trade
of, or trade with, any person who is a client, customer or supplier of Employer
(where all such clients, customers and suppliers are measured at the time
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Employee's employment is terminated hereunder) unless Employee receives the
prior written consent of the Board to do so.
(d) Employee agrees that he shall not, during the Noncompetition
Period (after the Term), directly or indirectly, solicit or induce (or attempt
to solicit or induce) to leave the employ of Employer for any reason whatsoever,
or hire, any person who (i) was employed by Employer within one year prior to
the time of the act of solicitation or inducement, or (ii) is employed by
Employer at the time of the act of solicitation or inducement.
(e) During and after the Term, Employee agrees not to disparage
Employer, the parent of Employer, or any of the subsidiaries or affiliates of
Employer. During and after the Term, Employer agrees not to disparage the
character of Employee.
(f) Employee hereby specifically acknowledges and agrees that the
provisions of this Section 6 are reasonable and necessary to protect the
legitimate interests of Employer, and that Employee desires to agree to the
provisions of this Section 6. In the event that any of the provisions of this
Section 6 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.
(g) Employee hereby acknowledges and agrees for himself, and for any
person participating with him in any breach or threatened breach of this
Section 6 (the "Other Person"), that, owing to the special, unique and
extraordinary nature of the matters covered by this Section 6, in the event of
any breach or threatened breach by Employee or the Other Person of any of the
provisions hereof, Employer would suffer substantial and irreparable injury,
which could not be fully compensated by
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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 him and any such Other
Person, without the necessity of proving actual damages or of posting bond to
enforce any of the provisions of this Section 6, and he hereby waives for
himself and for any such Other Person 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.
(h) Employee further agrees that the rights and remedies described in
this Section 6 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.
7. Termination.
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(a) Basic Termination. In addition to the termination provisions
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set forth in Section 7(b) and Section 7(c) hereof, the Term shall terminate
pursuant to the applicable provisions of Section 2 hereof and immediately upon
the death of Employee. Upon termination of the Term under the applicable
provisions of Section 2 hereof or upon the death of Employee, Employer shall
have no further obligation to Employee except as set forth in Section 8 hereof.
(b) Termination By Employer. The Term may be terminated by Employer
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under the following circumstances (in each case, upon such termination, Employer
shall have no further obligation to Employee except as set forth in Section 8
hereof):
(i) Disability. If during the Term, Employee shall be prevented
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from performing his duties for a continuous
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period of one hundred and eighty (180) days by reason of disability which
renders Employee physically or mentally incapable (excluding infrequent and
temporary absences due to illness) of performing substantially all of his duties
under this Agreement, 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 be deemed to 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 Term under this Section 7(b)(i).
(ii) For Good Cause. Employer may terminate Employee's employment at
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any time for Good Cause (as defined below), by giving reasonable notice
under the circumstances to Employee. "Good Cause" shall include, without
limitation, (A) a material breach of this Agreement by Employee (where
Employee fails to cure such breach within five (5) days after being
notified in writing by Employer of such breach), (B) Employee's failure to
perform his assigned duties without an excuse that is reasonably acceptable
to Employer, (C) 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, (D) the conviction of Employee of a
felony or any crime involving moral turpitude, fraud or misrepresentation,
(E) misappropriation or embezzlement by Employee of funds or assets of
Employer, and (F) Employee's willful refusal to
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perform specific directives of the Board 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 based on a material breach of this Agreement or for other
wrongful acts committed by Employee against Employer, shall not abrogate
the rights and remedies of Employer in respect of the breach or wrongful
act giving rise to such termination.
(c) Termination by Employee. The Term may be terminated by Employee
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upon thirty (30) days' written notice given to Employer after a material breach
hereof by Employer (where Employer fails to cure such breach within five (5)
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. Upon termination by
Employee following a material breach by Employer, Employee shall have no further
duties or obligations to Employer under this Agreement (except as contemplated
by Section 7(d) below).
(d) Survival of Sections. It is agreed that notwithstanding anything
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contained in this Agreement to the contrary, Sections 5, 6, the applicable
provisions of 7(b)(ii), 8 and 9 of this Agreement shall survive termination of
the Term.
8. Payments by, Obligations of, and Events Affecting the Respective
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Parties in Event of Termination.
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(a) Should the Term terminate under Section 7(a) of this Agreement
(expiration of the Term or the death of Employee),
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or be terminated by Employer under Section 7(b)(i) of this Agreement (disability
of Employee):
(i) Employee shall be entitled to receive:
(A) any and all accrued but unpaid base salary
compensation due to Employee as of the date on which the Term is
terminated shall be paid within fifteen (15) days of such date; plus
(B) severance payments equal to the sum of (y) six
months base salary (as it would normally be paid) plus (z) an
additional six months base salary less the fair market value (as of
the date on which the Term is terminated) of any options held by
Employee under the ISO Plan which have vested and any shares held by
Employee as a result of the exercise by Employee of vested options
held by Employee under the ISO Plan (such fair market value to be
determined by the Board in good faith).
(ii) Benefits pursuant to any of Employer's employee benefit
plans shall be payable in accordance with the terms of the instruments
applicable thereto.
(iii) All unvested options held by Employee under the ISO
Plan will automatically terminate (under the terms of the ISO Plan).
(iv) In the event the Term is terminated due to the death of
Employee, PRADE shall have the right, in its sole discretion (under
the terms of the ISO Plan), to purchase from the estate of Employee
(within ninety (90) days of the date on which the Term is terminated),
vested options held by Employee under the ISO plan and/or any shares
held by the estate of Employee as a result of the exercise by Employee
(or his
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estate) of vested options held by Employee under the ISO Plan. The
purchase price of the options and shares contemplated by this Section
8(a)(iv) shall be the fair market value of such vested options and/or
shares as of the date on which the Term is terminated (as determined
by the PRADE Board in good faith).
(b) Should the Term be terminated by Employer under Section
7(b)(ii) of this Agreement (for Good Cause):
(i) Employee shall be entitled to receive (within fifteen
(15) days of the date on which the Term is terminated) any and all
accrued but unpaid base salary compensation due to Employee as of the
date on which the Term is terminated.
(ii) Benefits pursuant to any of Employer's employee benefit
plans shall be payable in accordance with the terms of the instruments
applicable thereto.
(iii) All unvested options held by Employee under the ISO Plan
will automatically terminate (under the terms of the ISO Plan).
(iv) All vested options held by Employee under the ISO Plan
that are not exercised by Employee within ninety (90) days of the date
on which the Term is terminated, will automatically terminate (under
the terms of the ISO Plan).
(c) Should the Term be terminated by Employee under Section
7(c) of this Agreement:
(i) Employee shall be entitled to receive:
(A) Any and all accrued but unpaid base salary
compensation due to Employee as of the date on which the
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Term is terminated (payable within fifteen (15) days of the date on which
the Term is terminated); plus
(B) full base salary (payable monthly at the same time Employee
would otherwise be entitled to receive such base salary if Employee were
still employed by Employer) (y) through November 1, 1998 or (z) for a
period of twelve (12) months after the date on which the Term is
terminated, whichever period is longer.
(ii) Benefits pursuant to any of Employer's employee benefit plans
shall be payable in accordance with the terms of the instruments applicable
thereto.
(iii) All unvested options held by Employee under the ISO Plan will
automatically vest as of the date on which the Term is terminated (under the
terms of the ISO Plan).
(iv) Within ninety (90) days of the date on which the Term is
terminated, Employee shall have the option (under the terms of the ISO Plan) to
require PRADE to repurchase (during such ninety (90) day period) vested options
held by Employee under the ISO Plan and/or shares of PRADE's common stock
previously issued pursuant to the exercise of options held by Employee under the
ISO Plan. The purchase price of the options and/or shares contemplated by this
Section 8(c)(iv) shall be the fair market value of such vested options and/or
shares as of the date on which the Term is terminated (as determined by the
PRADE Board in good faith). Notwithstanding the foregoing, the obligation of
PRADE to repurchase the options and/or shares referenced in this Section
8(c)(iv) shall only apply to the extent PRADE has funds legally and readily
available to make such repurchase (with the availability of the funds being
determined by the PRADE Board in good faith).
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9. Records. Upon termination of Employee's employment with Employer for
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any reason under this Agreement, Employee shall promptly deliver to Employer any
and all correspondence, mailing lists, drawings, blueprints, manuals, letters,
records, notes, notebooks, reports, flow-charts, programs, proposals, computer
tapes, discs and diskettes which are in Employee's possession or under his
control, and 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 which are in Employee's possession or
under his control, and, without limiting the foregoing, shall promptly deliver
to Employer any and all documents or materials which are in Employee's
possession or under his control containing or constituting Confidential
Information.
10. Arbitration. Except with respect to matters involving equitable
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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, shall be settled by arbitration before a three-member panel pursuant
to the rules of the American Arbitration Association, in Washington, D.C. The
award rendered by the arbitrators shall be conclusive and binding upon the
parties hereto. Each party shall pay its own expenses of arbitration and the
expenses of the arbitrators shall be equally shared.
11. Entire Agreement. This Agreement (together with Exhibit A and
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Exhibit B hereto) supersedes any prior agreement between the parties hereto with
respect to the subject hereof; constitutes the entire agreement between the
parties hereto with respect to the subject hereof; and replaces in its or their
entirety (and stands as a written amendment thereto or termination thereof, as
required) any and all employment or other agreements (whether written or oral)
that Employee may have in place with
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Employer as of the Effective Date. 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.
12. Severability. The provisions of this Agreement shall be deemed
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severable, and, subject to Section 6(f) of this Agreement, 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.
13. Governing Law. This Agreement is to be governed by and interpreted
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under the laws of the Commonwealth of Virginia, without regard to the conflicts
of laws provisions or rules of such State's law.
14. Headings; Form of Words. The headings contained in this Agreement
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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
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neuter gender when the context so requires. The term "person" as used herein
refers to a natural person, a corporation, a limited liability company, a
partnership, a joint venture, or other entity or association, as the context
requires.
15. Notices. All notices, requests, consents, payments, demands and other
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communications required or contemplated under this Agreement ("Notices") shall
be in writing and (a) personally delivered, (b) deposited in the United States
mail, registered or certified mail, return receipt requested, with postage
prepaid, or (c) sent by Federal Express or Airborne Courier (for next business
day delivery), shipping prepaid, as follows:
If to Employer, to:
Pharmaceutical Research Associates, Inc.
2400 Old Ivy Road
Charlottesville, Virginia 22903-4826
Attn: Earle Martin, CEO
If to Employee, to:
Earle Martin
312 Grove Avenue
Falls Church, Virginia 22046
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 U.S. mail, five (5) business days after the date mailed
in the manner set forth in this Section 15, or, if sent by Federal Express or
Airborne Courier, one business day after such sending.
16. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original,
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but all of which together shall constitute one and the same instrument.
17. Successors and Assigns. All the terms and provisions of this
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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.
18. Cooperation. Each party to this Agreement agrees to cooperate with
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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.
19. Waiver. Any waiver of any provision hereof (or in any related
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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.
20. Indemnification. Employee shall be entitled to be indemnified by
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Employer to the fullest extent permitted by the Virginia Stock Corporation Act
notwithstanding any limitations set forth in Employer's Articles of
Incorporation.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
Employer: PHARMACEUTICAL RESEARCH ASSOCIATES, INC.
By: /s/ Earle Martin
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Print Name: Earle Martin
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Print Title: President
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Employee: /s/ Earle Martin
---------------------------------
Print Name: Earle Martin
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Exhibit A
Boards of Directors on Which Employee Serves as of the Date of this Agreement
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Asbury Services, Inc.
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Exhibit B
Key Terms of ISO Plan
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Class of Shares: Options will be for shares of PRADE's Common Stock.
Number of Shares: Maximum number of shares issuable under the ISO Plan
will be approximately 323,000.
Exercise Price: $11.683 per share (in cash, or by cash or cashless
exercise on death/disability).
Vesting: 25% of the options under the ISO Plan will vest over a
four-year period from the date of grant (the "Grant
Date"), with the first 25% vesting on the first
anniversary of the Grant Date, and each additional 25%
vesting on each successive anniversary of the Grant Date
through the fourth anniversary thereof.
Notwithstanding the foregoing, 50% of the options under
the ISO Plan will vest automatically upon any
extraordinary event in which any purchaser(s) (whether
taken individually or as a group), under that certain
Stock Purchase Agreement, dated September 13, 1996, by
and among PRADE, Employer, and Carlyle Partners II, L.P.
(together with certain Affiliates; the "Stock Purchase
Agreement"), receives an Internal Rate of Return (as
such term is defined in that certain Stockholders'
Agreement attached as Exhibit C to the Stock Purchase
Agreement; "IRR") greater than 25% (to the extent that
exercise of any options under the ISO Plan do not reduce
such IRR below 25%).
In addition to the foregoing, 25% of the options under
the ISO Plan will vest automatically upon any
extraordinary event in which the above stated IRR for
any such Purchaser(s) (whether taken individually or as
a group) is greater than 33%.
Grant of Options: Allocation of the options under the ISO Plan will be
determined by the PRADE Board in consultation with the
Compensation Committee.
Additional: The ISO Plan shall also contain the provisions
contemplated by Section 8 of the Employment Agreement,
with respect to automatic vesting, rights of repurchase,
etc.
Note: Capitalized terms used herein without definition shall
have the meanings ascribed thereto in the attached
Employment Agreement.
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AMENDMENT NO. 1 TO
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT AND NON-COMPETITION AGREEMENT (the
"Amendment") is made as of the 14th day of November 1997 by and between
Pharmaceutical Research Associates, Inc., a Virginia corporation (hereinafter
called "Employer"), and Earle Martin (hereinafter called "Employee").
WHEREAS, Employer and Employee are parties to that certain Employment and
Non-Competition Agreement dated as of October 11, 1996 (the "Employment
Agreement"; capitalized terms used and not otherwise defined in this Amendment
shall have the respective meanings assigned to them in the Employment
Agreement); and
WHEREAS, the parties hereto have agreed to amend the Employment Agreement
on the terms and conditions contained herein so that the terms of such
Employment Agreement conform to the terms and conditions of that certain Amended
and Restated Option Agreement (the "Option Agreement") by and between Employee
and Employer's parent, PRA International, Inc., a Delaware corporation
("International"), which Option Agreement is being executed concurrently
herewith.
NOW THEREFORE, in consideration of the premises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Amendments to Employment Agreement. From and after the Effective Date
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(as defined in Section 2 hereof), the Employment Agreement is hereby amended by
deleting Sections 8(a)(iv) and 8(c)(iv) in their entirety.
2. Effectiveness of Amendment. This Amendment shall become effective as
--------------------------
of the consummation on or before January 31, 1998 of an initial public offering
of common stock of International approved by the Public Offering Committee of
the International Board (the "Effective Date") upon the execution and delivery
of this Amendment by each of the parties hereto. In the event such an initial
public offering is not consummated on or before January 31, 1998, this Amendment
shall be null and void. At all times on and after the Effective Date, each
reference in the Employment Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import, shall mean and be a reference to the
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Employment Agreement as amended by this Amendment. Except as, and to the extent,
specifically amended by this Amendment, the Employment Agreement shall remain in
full force and effect and is hereby ratified and confirmed.
3. Execution in Counterparts. This Amendment may be executed in any
-------------------------
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
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IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF VIRGINIA (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
5. Headings. Section headings in this Amendment are included herein for
--------
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment No. 1
to Employment Agreement as a sealed instrument as of the date first set forth
above.
PHARMACEUTICAL RESEARCH
ASSOCIATES, INC.
By: /s/ Earle Martin
---------------------------------
Name: Earle Martin
Title: President
/s/ Earle Martin
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EARLE MARTIN