EXHIBIT 10(R)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is executed to be effective February 16, 1999 (the
"Effective Date") between Clinicor, Inc., a Nevada corporation (the
"Corporation"), and Rosina Maar, M.D. (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 and
shall terminate two (2) years and one (1) day thereafter. 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
three (3) additional periods of one (1) year each.
3. Compensation. The Corporation shall pay to the Employee a minimum base
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salary of Two Hundred Twenty-Five Thousand and No/100 Dollars ($225,000.00) per
year, payable in equal bi-monthly installments, net of applicable withholdings.
The Corporation shall also pay to the Employee an initial signing bonus of
Thirty-Five Thousand and No/100 Dollars ($35,000.00), payable within forty-five
(45) days after the Effective Date. 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.
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4. Benefits.
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(a) In addition to the direct remuneration provided for in the
preceding Section 3, the Employee shall be entitled to participate in and to
receive benefits consistent with those of other executive officers of the
Corporation. Set forth on Exhibit A hereto is a summary of company benefits
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currently made available to executive officers of the Corporation. The Employee
understands and acknowledges that these benefits may change from time to time in
the ordinary course of the Corporation's business. With respect to the
Corporation's vacation policy only, the Employee shall be credited with three
(3) years of service, in addition to actual years of service, so that she shall
initially be entitled to three (3) weeks of vacation per year.
(b) The Corporation shall, simultaneously with the commencement of the
Employee's employment hereunder (or as soon thereafter as a meeting of the Board
may conveniently be convened, but in no event more than two (2) month following
the Effective Date), grant to the Employee options to purchase a total of three
hundred thousand (300,000) shares of the Corporation's common stock. The
exercise price applicable to such options shall be the closing price of such
stock on the Over-the-Counter Bulletin Board (or, if such stock is not traded on
the Over-the-Counter Bulletin Board, on such other market as the stock is
publicly traded) on the business day immediately preceding the date of grant.
Twenty percent (20%) of the options shall vest on the date of grant, and the
balance of the options shall vest in four (4) equal annual increments on the
anniversary of the Effective Date, commencing on the first anniversary of the
Effective Date, in the year 2000, provided the Employee is still employed by the
Corporation on such dates. The options,
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if unexercised, shall terminate and expire ninety (90) days after the
termination of the Employee's employment by the Corporation, and in any event no
later than the seventh anniversary of the Effective Date, in the year 2006. The
Employee understands and acknowledges that the grant of options as set forth
above does not constitute a promise by the Corporation to continue the term of
the Employee's employment hereunder beyond the term provided for in Section 2
hereof. The description of the terms and conditions of the options contained in
this Section 4(b) is in all respects subject to and qualified by the terms and
conditions of the Corporation's Amended and Restated 1995 Director, Employee and
Consultant Stock Option Plan and the standard form of Option Agreement
thereunder, each of which has been supplied to the Employee.
(c) The Corporation acknowledges that Employee will maintain a
residence, in Cary, North Carolina during the term of this Agreement. The
Corporation agrees to provide living accommodations and a means of travel
(subject to the expense limitations and other terms set forth on Exhibit B
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hereto) when the Employee is present in Austin, Texas.
(d) The Corporation shall reimburse to the Employee all business
expenditures reasonably incurred by the Employee, subject to the Corporation's
expense reimbursement policy in effect from time to time and to the expense
limitations set forth on Exhibit B hereto.
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5. Duties. The Employee has been selected to serve as Chief Operating
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Officer of the Corporation, and she agrees to perform the duties normally
incidental to this office for as long as she holds the office. The Employee
acknowledges that she occupies this office at the discretion of the Board and
that her title may be changed at any time and that such change will not
constitute a breach
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of this Agreement. The Employee agrees to perform for the Corporation such
duties and responsibilities as may reasonably be prescribed from time to time by
the Board.
6. Extent of Service. The Employee shall devote her full time, attention
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and energy to the business of the Corporation and shall faithfully,
industriously, and to the best of her ability perform all of the duties that may
be required of her as an employee and as an officer of the Corporation. 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. The parties agree that the passive ownership by the Employee of up
to one percent (1%) of the outstanding shares of capital stock of a publicly
held entity shall not be deemed to violate the provisions of this Section 6,
even if such entity competes with the Corporation.
7. Confidentiality and Non-Solicitation.
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(a) The Employee recognizes and acknowledges that she will have access
to certain Confidential Information of the Corporation (as hereinafter defined)
and that such information constitutes valuable, special and unique property of
the Corporation. The Employee will not, during the term of her employment or
for a period of one (1) year thereafter, 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
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without limitation each of the following with respect to the Corporation: (i)
financial information; (ii) information concerning marketing plans or
strategies; (iii) information concerning sponsors, investigators and other third
parties with whom the Corporation has contacts; (iv) information concerning the
Corporation's markets and potential markets; (v) information concerning business
methods and practices; (vi) client proprietary information, contracts,
proposals, work in process and research; (vii) information concerning
development or marketing programs or plans or client lists; and (viii) any other
information that the Corporation reasonably treats and identifies 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). Notwithstanding
the foregoing, Confidential Information does not include information the
Employee had prior to her employment with the Corporation or information that is
generally available to the public or in the pharmaceutical industry. The
Employee should consider all information coming into her possession by virtue of
her employment relationship with the Corporation to be Confidential Information
unless it is freely available to the public.
(b) The Employee shall not, during her employment with the Corporation
or for a period of six (6) months thereafter, directly or indirectly, willfully
solicit, or willfully interfere with the Corporation's relationships with, or
willfully entice away from the Corporation, any sponsor, any investigator with
whom the Employee has had a relationship during her employment at the
Corporation or any other person, firm or corporation who has at any time during
the term of the Employee's employment hereunder done business with the
Corporation; provided, however, nothing
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herein shall prevent the Employee from doing business with any person, firm or
entity with whom she has had a business relationship prior to the Employee's
employment with the Corporation. The Employee shall not, during the term of her
employment with the Corporation or for a period of six (6) months thereafter,
offer employment to or procure employment for any person who has at any time
during the term of the Employee's employment hereunder been employed by the
Corporation.
8. Materials. All data, protocols, listings, charts, drawings, records,
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documents, programs, software, documentation, memoranda, journals, notebooks,
records, files, drafts, specifications and similar items relating to the
business of the Corporation or its 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 her 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 her
employment. All of such items shall be returned to the Corporation by the
Employee upon the termination of her 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.
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9. Termination.
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(a) Death or Disability. Subject to any broader rights granted the
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Employee under applicable law, including under the Family Medical Leave Act or
under the Americans with Disabilities Act, in the event of the Employee's death
or in the event of her disability for a period in excess of one (1) month during
the term of this Agreement, the Corporation may terminate this Agreement, in
which event the Corporation shall pay to the Employee or to her heirs or
personal representatives the amount of compensation and benefits accrued under
Sections 3 and 4 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.
The Corporation shall thereafter have no further liability under this Agreement
to the Employee or her 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 her
occupation.
(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) willful or repeated violation of any of the material
provisions of this Agreement, or persistent neglect of her material duties
hereunder, provided that any termination pursuant to this subparagraph (i)
shall be conducted in accordance with any applicable procedures contained
at the time of such termination in the Corporation's Employee Handbook;
(ii) dishonesty, fraud, embezzlement, defalcation, conviction of
any felonious offense; or
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(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 her 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 and benefits accrued under Sections 3
and 4 of this Agreement to the date of such termination. Thereafter, the
Corporation shall have no further obligation to the Employee.
(c) Termination with Cause by the Employee. At any time during the
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term hereof, the Employee shall have the right to terminate her employment
hereunder for cause upon the failure of the Corporation to comply with any of
the material terms of this Agreement. Such termination shall be effective
immediately upon the delivery to the Corporation by the Employee 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(c), the
Corporation shall pay to the Employee on the date of termination all
compensation and benefits accrued under Sections 3 and 4 of this Agreement to
the date of such termination. Thereafter, neither the Corporation nor the
Employee shall have any obligation to the other hereunder, except as accrued
prior to the date of termination or as set forth in Sections 7 and 8 hereof.
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
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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 any Stock Option
Agreement to which the Employee is a party.
11. Matters Involving Current Employer. The Employee represents and
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warrants to the Corporation that her execution, delivery and performance of this
Employment Agreement will not in any respect contravene any obligations owed by
her to any third party, including the Employee's former employer, Quintiles,
Inc.
12. 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 106 Preston
Ridge, Cary, North Carolina 27513, 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 notice to the other. Such notice shall be effective
as of the earlier of the date received or, if mailed as described above, three
days after the date of mailing.
13. 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
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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.
14. Appointment to Board. The parties mutually acknowledge that the
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Employee will be considered for a position on the Corporation's Board of
Directors, commencing with the election of directors to be held at the
Corporation's 1999 annual meeting. The Employee understands and acknowledges
that her nomination for a Board position will be subject to the pro rata
representation rights of the Corporation's preferred shareholders and, in
particular, will be subject to the agreement of such preferred shareholders to
expand the present size of the Board. There can be no assurance that the
preferred shareholders will approve expansion of the Board.
15. Miscellaneous.
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(a) This Agreement shall be subject to and governed by the laws of the
State of Texas and is performable in Travis County, 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
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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.
(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 (the
"Non-Prevailing Party") all reasonable costs and attorneys' fees incurred by the
non-breaching or prevailing party in seeking any of such remedies; provided,
however, the Non-Prevailing Party shall not be required to pay any amount of the
other
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party's costs and attorneys' fees that is in excess of one and one-half (1-1/2)
times such Non-Prevailing Party's own bona fide costs and attorneys' fees
incurred in connection with the matter.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date set forth above.
CLINICOR, INC.
By: /s/ James W Clarke CFO
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JAMES W. CLARK, JR., Vice President of Finance,
Treasurer and CFO
"CORPORATION"
/s/ Rosina Maar MD
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ROSINA MAAR, M.D.
"EMPLOYEE"
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EXHIBIT A
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Summary of Benefits
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WORKERS' COMPENSATION INSURANCE
Workers' compensation benefits are provided in accordance with the Texas
Workers' Compensation Act. Policy with Hartford Insurance allowing
coverage throughout the United States.
MEDICAL
Clinicor provides a PPO medical insurance plan with Fortis Benefits for all
full-time employees and their eligible dependents. A new employee is
eligible for group medical coverage on the first day of the month
immediately following 30 days of uninterrupted service. Clinicor pays the
medical and dental premiums for each full-time employee.
Preferred Provider One Hundred Plan 1000
- Deductible Amount: $1,000
- Family Deductible: $2,000
- Contracting Outpatient Physician Co-Pay: $20.00
- Emergency Room Co-Pay:
Contracting - $50 each visit
Non-Contracting - $100 each visit
- Non Contracting Hospital Admission Co-Pay: $200
DENTAL
- Preventive: $0
- Basic and Major: $50 (deductible)
- Yearly Maximum Benefit: $1,000
- One year waiting period for major dental
PRESCRIPTION DRUG CARD PLAN
- Generic Prescription Drugs: $5
- Brand Name Prescription Drugs: $10 plus 30%
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LIFE INSURANCE & SHORT AND LONG-TERM DISABILITY
Benefits include a group life insurance and AD&D policy with Fortis
Benefits for all full-time employees, with the premiums paid in full by
Clinicor. A new employee is eligible for this coverage on the first day of
the month immediately following 90 days of uninterrupted service.
Clinicor provides group short-term and long-term disability insurance to
all regular full-time employees. A new employee is eligible for this
coverage on the first day of the month immediately following 90 days of
uninterrupted service.
401(K) RETIREMENT PLAN
Principal Financial Group offers a mix of investment profiles. Principal
offers an internet site to find daily account values and information about
investment options. Clinicor provides eligible employees with retirement
benefits under a 401(k) Profit Sharing Plan. Clinicor matches 20% of the
first 5%. Regular full-time employees become eligible for this plan on a
quarterly basis.
Clinicor also offers rollover options into Clinicor's qualified 401(k) plan
for employees who wish to transfer their funds from other retirement plans
into Clinicor's 401(k) plan.
SECTION 125 FLEXIBLE BENEFIT PLAN
The Flexible Benefit Plan allows employees to pay for certain eligible
expenses with pre-tax dollars under Section 125 of the Internal Revenue
Code.
PERSONAL DAYS
Eligible full-time employees accrue paid personal days off at the rate of
5.3 hours per month worked; however, no employee shall take a paid-
personal day off until they have worked the 90 day introductory period with
Clinicor.
This policy takes the place of the more conventional "sick leave". We
believe our policy will give employees more flexibility in their personal
lives and will allow for better planning between employees and supervisors.
Every eligible employee is entitled to 8 paid personal days per year of
work. These personal days can be used for any combination of illness,
doctors' appointments, family business, childcare, or other personal needs.
They may include personal "mental health" days as needed, to avoid
suffering from excessive stress.
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VACATION DAYS
Vacation pay will be at the same rate as any other regularly scheduled work
week. The vacation pay is designed as an incentive and reward for length
of service with Clinicor. After the first three months of employment,
vacation is accrued at the following monthly rates, based on a forty-hour
week. Eligible employees working at least 32 but less than 40 hours per
week will receive vacation on a prorated basis.
- Up to 3 years of service: 6.67 hours per month
(80 hours per year)
- From 3 to 8 years of service: 10 hours per month (120 hours per year)
- More than 8 years of service: 13.3 hours per month (160 hours per year)
HOLIDAYS
The following are the national holidays, which are observed as paid
holidays by Clinicor:
New Year's Day
Memorial Day
Independence Day (July 4/th/)
Labor Day
Thanksgiving Day
Day after Thanksgiving
Christmas Day
Details concerning the foregoing benefits are as set forth in the Corporation's
Employee Handbook, which the Corporation reserves the right to modify from time
to time.
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EXHIBIT B
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Expenses to be Reimbursed in Connection with
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Employee's Presence in Austin, Texas
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As long as the Corporation requires the Employee to maintain her primary office
in Austin, Texas, the Corporation agrees to reimburse the Employee for certain
living expenses to be incurred when working at the Corporation's headquarters in
Austin, Texas, and to provide a leased automobile for use by the Employee in
Austin, as detailed below:
. Housing: The Corporation will reimburse the Employee $1,100.00 per
month for housing accommodations in Austin.
. Transportation: The Corporation will provide the Employee a leased
automobile for use in Austin.
. Travel: The Corporation agrees to reimburse the Employee for two round
trip airline tickets per month for travel by the Employee between
Austin and her residence in North Carolina.
The foregoing list includes all expenses to be reimbursed by the Corporation in
respect of Employee's presence in Austin. The Corporation will reimburse the
Employee ordinary business expenses, pursuant to travel and entertainment
policies in effect from time to time, for expenses incurred in connection with
entertaining clients and in connection with travel outside of Austin.
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