EXHIBIT 10(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is executed to be effective June 1, 1997, between Clinicor,
Inc., a Nevada corporation (the "Corporation"), and James W. Clark, Jr. (the
"Employee").
W I T N E S S E T H:
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1. Employment. The Corporation hereby employs the Employee and the
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Employee hereby accepts such employment and agrees to perform the services
specified herein upon the terms and conditions hereinafter set forth.
2. Term. Subject only to the provisions for termination as hereinafter
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set forth, the term of this Agreement shall begin on the effective date hereof
and shall terminate on May 31, 1998. Unless either party gives the other thirty
(30) days written notice prior to the expiration of the initial or any renewal
term hereof, this Agreement shall automatically renew for four (4) additional
periods of one (1) year each.
3. Compensation. The Corporation shall pay to the Employee a minimum
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base salary of One Hundred Twenty Thousand and No/100 Dollars ($120,000.00) per
year, payable in equal bi-monthly installments. The Employee shall be entitled
to receive such further compensation in the form of bonuses and salary increases
as shall be authorized by the Board of Directors of the Corporation (the
"Board") from time to time.
4. Benefits. In addition to the direct remuneration provided for in the
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preceding Section 3, the Employee shall be entitled to participate in and to
receive benefits consistent with those of other officers of the Corporation, and
to a moving allowance of Ten Thousand and No/100 Dollars ($10,000.00).
5. Duties. The Employee has been elected Vice President of Finance,
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Treasurer and Chief Financial Officer of the Corporation, and he agrees to
perform the duties normally incidental to these offices for as long as he holds
them. The Employee further agrees to perform for the Corporation such other
duties and responsibilities as may be prescribed from time to time by the Board.
6. Extent of Service. The Employee shall devote his full time, attention
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and energy to the business of the Corporation and will faithfully,
industriously, and to the best of his ability perform all of the duties that may
be required of him as an Employee. The Employee shall not directly or
indirectly render any services to any other person or organization, whether for
compensation or otherwise, without the prior consent of the Board. The Employee
will not engage in activities, businesses, or investments that would in any way
conflict with the best interests of the Corporation.
7. Disclosures of Information. The Employee recognizes and acknowledges
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that he may have access to certain Confidential Information of the Corporation
(as hereinafter defined) and that
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such information constitutes valuable, special and unique property of the
Corporation. The Employee will not, during or after the term of his employment,
directly or indirectly divulge, disclose or otherwise communicate or make
available any of such Confidential Information to any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever without the
prior written consent of the Corporation. Confidential Information includes
without limitation each of the following with respect to the Corporation: (i)
financial information; (ii) information concerning marketing plans or
strategies; (iii) information concerning customers, equipment suppliers and
other vendors; (iv) demographic information concerning the Corporation's markets
and potential markets; (v) information concerning business methods and
practices; and (vi) any other information which the Corporation treats as
confidential. Confidential Information shall also include without limitation
any information or materials received by the Corporation from third parties in
confidence (or subject to nondisclosure or similar agreements). The Employee
should consider all information coming into his possession by virtue of his
employment relationship with the Corporation to be Confidential Information
unless it is freely available to the public.
8. Materials. All data, listings, charts, drawings, records, documents,
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programs, software, documentation, memoranda, journals, notebooks, records,
files, drafts, specifications and similar items relating to the business of the
Corporation or its
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customers, whether compiled by the Employee, furnished to the Employee by the
Corporation, its customers or clients or otherwise made accessible to the
Employee or coming into his possession, while the Employee is in the employ of
the Corporation, and copies of any such items, shall be and remain the sole and
exclusive property of the Corporation or its customers or clients, as the case
may be, and none of such items shall be removed from the Corporation's business
premises by the Employee without the prior consent of the Corporation, except as
required in the course of his employment. All of such items shall be returned
to the Corporation by the Employee upon the termination of his employment with
the Corporation for whatever reason. The provisions of this Section 8 shall
not, however, prohibit the Employee from using any materials published by the
Corporation and made available (without breach of this Section) to the general
public.
9. Termination.
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(a) Death or Disability. In the event of the Employee's death or in
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the event of his disability for a period in excess of one (1) month during the
term of this Agreement, the Corporation (i) shall pay to the Employee or to his
heirs or personal representatives the amount of compensation accrued under
Section 3 hereof through the date of death or (in case of disability) through
the end of the one-month period commencing with the onset of disability and (ii)
shall make any other payment required under Section 9(e) of this Agreement. The
Corporation shall thereafter
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have no further liability under this Agreement to the Employee or his heirs or
personal representatives. "Disability" for purposes hereof shall be deemed to
have occurred if the Employee because of injury or sickness is unable to perform
each of the material duties of his occupation. In the event of any dispute as
to whether the Employee is disabled, the determination of the Board shall be
final and binding.
(b) Termination with Cause by the Corporation. At any time during the
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term hereof, the Corporation shall have the right to terminate for cause the
Employee's employment under this Agreement upon the occurrence of any of the
following events by the Employee:
(i) persistent neglect of his duties hereunder or a willful
violation of any of the provisions of this Agreement or any other
arrangement with the Corporation, which continues after written notice and
ten (10) days in which to cure;
(ii) dishonesty, fraud, embezzlement, defalcation, or conviction
of any felonious offense; or
(iii) intentionally imparting Confidential Information, as defined
in Section 7, to competitors or to other third parties other than in the
course of carrying out his corporate duties.
Such termination shall be effective immediately upon the delivery to the
Employee by the Corporation of written notice of such termination. In the event
of a termination of the Employee's employment for cause in accordance with the
provisions of this Section 9(b), the Corporation shall pay to the Employee on
the date of termination all compensation accrued under Section 3 of this
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Agreement to the date of such termination. Thereafter, the Corporation shall
have no further obligation to the Employee.
10. No Termination Without Cause by the Corporation. The Corporation
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shall not be entitled to terminate the Employee's employment during either the
initial or any renewal term hereof without cause. The Corporation may, however,
with or without cause, suspend the performance of the Employee's duties
hereunder, such suspension to be effective immediately upon written notification
by the Corporation to the Employee. In such event, the Employee shall continue
to be an employee of the Corporation through the conclusion of the initial or
renewal term during which suspension of duties occurs, and the Employee shall be
entitled during such initial or renewal term to receive all compensation and
benefits provided for herein, including any benefits related to the vesting of
options pursuant to the Stock Option Agreement to which the Employee is a party.
11. Notices. Any notice required or permitted to be given under this
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Agreement shall be sufficient if in writing and if delivered (including delivery
by private courier or facsimile transmittal) or sent by registered or certified
mail, postage prepaid, return receipt requested to the Employee at 1717 West
Sixth Street, Suite 400, Austin, Texas 78703, or to the Corporation at 1717 West
Sixth Street, Suite 400, Austin, Texas 78703, or to such other address as either
party shall designate by written
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notice to the other. Such notice shall be effective as of the date received or
(if mailed as described above) the date of mailing.
12. Assignment. This Agreement may not be assigned by either party hereto
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without the consent of the other party. Subject to the foregoing, the rights
and obligations of the Corporation under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the
Corporation, and the rights of the Employee under this Agreement shall inure to
the benefit of the heirs and personal representatives of the Employee.
13. Miscellaneous.
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(a) This Agreement shall be subject to and governed by the laws of the
State of Texas.
(b) Whenever the context requires, the gender of all words used herein
shall include the masculine, feminine and neuter, and the number of all words
shall include the singular and plural. Titles of sections are for convenience
only and neither limit nor amplify any of the provisions contained herein.
(c) Upon execution of this Agreement, the right, duties and
obligations of the parties hereto with respect to the matters set forth herein
shall be governed solely by the provisions of this Agreement, and all
representations, warranties, terms and conditions with respect to such matters
which may be contained in any prior writing executed by any of the parties shall
be null and void and of no further force and effect.
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(d) Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement, or the application thereof to any party
hereto or under any circumstances, shall be invalid or unenforceable to any
extent under applicable law, such provision shall be deemed severed from this
Agreement with respect to such party or such circumstance, without invalidating
the remainder of this Agreement or the application of such provision to other
persons or circumstances, and a new provision shall be deemed to be substituted
in lieu of the provision so severed which new provision shall, to the extent
possible, accomplish the intent of the parties hereto as evidenced by the
provision so severed.
(e) In the event of a breach or threatened breach by the Employee of
any provision of this Agreement, then in addition to any other available remedy
to which the Corporation may be entitled, including the recovery of damages, the
Corporation shall be entitled to an injunction restraining the Employee from
breaching or attempting to breach, in whole or in part, any of the provisions of
this Agreement. In addition, in the event of a breach by either party of any
provision of this Agreement, the non-breaching or (in the event of litigation)
the prevailing party shall be entitled to recover from the other party all
reasonable costs and attorneys' fees incurred by the non-breaching or prevailing
party in seeking any of such remedies.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date set forth above.
CLINICOR, INC.
By: /s/ Robert S. Sammis
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Robert S. Sammis, President
"CORPORATION"
/s/ James W. Clark, Jr.
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JAMES W. CLARK, JR.
"EMPLOYEE"
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