Exhibit 10.10
EMPLOYMENT AGREEMENT
BETWEEN: PHOENIX INTERNATIONAL LIFE SCIENCES (IBRD) INC., a
corporation duly incorporated under the laws of
Delaware, having its head office at Gwynedd Hall,
Suite 100, 17777 Sentry Parkway West, in the City of
Blue Bell, Pennsylvania 19422, and represented herein
by its duly authorized representative,
(hereinafter called "PHOENIX")
AND: SUSAN THORNTON, PH.D., domiciled and residing at 1101
Green Valley Road, Bryn Mawr, Pennsylvania 19010.
(hereinafter called "DR. THORNTON")
WHEREAS Phoenix is a subsidiary of Phoenix International Life
Sciences (U.S.) Inc., itself a subsidiary of Phoenix International Life Sciences
Inc. (The last mentioned company hereinafter "Phoenix International"), which
term shall include, if the context so requires, all the subsidiaries of Phoenix
International Life Sciences Inc.); and
WHEREAS Phoenix International undertakes to guarantee
performance of all of the terms and obligations undertaken by Phoenix for the
benefit of Employee for the duration of such Employee's employment and
conditional upon the Employee's respect of her own undertakings for the benefit
of Phoenix hereunder; and
WHEREAS Phoenix wishes to continue to employ Dr. Thornton on
the terms and conditions hereinafter set forth; and
WHEREAS Phoenix and Dr. Thornton wish to acknowledge by this
agreement their mutual rights and obligations with respect to Dr. Thornton's
employment by Phoenix; and
WHEREAS this agreement shall be deemed to have commenced June
1, 1998 regardless of the date it is actually signed,
NOW THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto hereby agree as follows:
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1. PREAMBLE
1.1 The preamble is deemed to form part of this agreement.
2. POSITION
2.1 Dr. Thornton's title shall be President and Chief Operating
Officer, Phoenix International US, Phase II-IV, initially
reporting to the Chairman and CEO of Phoenix International.
Dr. Thornton will be a member of Phoenix International's
corporate Executive Management Committee, together with the
CEO and other executives (SEE ATTACHED SCHEDULE A ENTITLED
"INITIAL POSITION DESCRIPTION"). Dr. Thornton will be invited
to attend meetings of the Board of Directors of Phoenix
International Life Sciences Inc., when other executives of her
rank are so invited. Dr. Thornton agrees to serve as an
Officer of Phoenix, at the discretion of the Board of
Directors.
3. OTHER EMPLOYMENT AND DUTY TO DEVOTE WHOLE TIME
3.1 Dr. Thornton agrees that during the term of her employment,
she shall devote her full time and efforts to Phoenix and
shall not, directly or indirectly, engage in any other
business whether or not said other business is competitive
with or similar to the business carried on by Phoenix
International.
4. REMUNERATION AND OTHER BENEFITS
4.1 BASE SALARY: Dr. Thornton's starting annual salary shall be
$250,000, less all applicable deductions, payable bi-weekly in
arrears.
4.2 BASE SALARY INCREASES: Dr Thornton will be eligible to receive
annual increases of her base salary upon each anniversary of
the commencement date, June 1, 1998, of this Agreement. Said
increases will be based on her ability to fulfill the position
description and consistent with decisions of Phoenix
International's Board of Directors.
4.3 CAR EXPENSES: Dr. Thornton will receive a car allowance of
$6,000 annually, payable in monthly installments.
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4.4 BENEFIT PLANS: Subject to completion by Dr. Thornton of any
medical examinations and other like procedures and such
enquiries, as may be required by Phoenix International's
insurers, Phoenix shall pay and maintain for Dr. Thornton
short term and long term disability benefits and insurance
coverage consistent with the benefits provided to other
executives of Phoenix International.
Dr. Thornton shall be entitled to participate in all present
or future benefit and insurance plans which Phoenix
International makes available to its executives, including the
401k plan currently in place at Phoenix, or modifications
thereof.
4.5 VACATION: Dr. Thornton will be entitled to 4 weeks (20 working
days) annual vacation.
4.6 BONUS: Dr. Thornton will be eligible to receive an annual
bonus in accordance with the provisions of Phoenix's WORLDWIDE
EXECUTIVE REMUNERATION PLAN, a copy of which is attached
hereto as SCHEDULE B, (but which may be amended from time to
time).
5. PROFESSIONAL LIABILITY INSURANCE
5.1 Dr. Thornton will be covered by professional liability and
Directors and Officer insurance to which Phoenix International
subscribes, to the same extent as all Phoenix International
executives of her level. Phoenix agrees that Dr. Thornton
shall be covered by the INDEMNIFICATION AGREEMENT attached
hereto as SCHEDULE C, subject to approval by the Human
Resources Committee of the Board of Directors of Phoenix
International. Such indemnification shall be no less favorable
than for other Officers and Directors of Phoenix
International.
6. PHOENIX SHARE OPTIONS
6.1 Dr. Thornton was granted options to purchase 125,000 of
Phoenix International's common shares on July 14, 1998, in
accordance with the terms and conditions of the KEY EMPLOYEE
SHARE OPTION PLAN attached hereto as SCHEDULE D (but which may
be amended from time to time). These options may only be
exercised as they become vested, subject to securities
commission and stock exchange regulations. The options vest
progressively on each anniversary of the date of granting of
the options, as follows:
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CUMULATIVE
YEAR % VESTED
---- ----------
1999 4%
2000 16%
2001 36%
2002 64%
2003 100%
6.2 Dr. Thornton will be eligible to be awarded further stock
options annually in accordance with Phoenix International's
WORLDWIDE EXECUTIVE REMUNERATION PLAN. The number of such
options currently authorized by Phoenix International's Board
of Directors is equal to 50% of the salary Dr. Thornton earned
in the previous fiscal year, divided by the option exercise
price. Subject to amending the KEY EMPLOYEE SHARE OPTION PLAN
and obtaining shareholder and regulatory approval, these
options will vest 20% for each year of continuous service
subsequent to their granting. If shareholder or regulatory
approval are not received for this vesting schedule, these
options will vest as provided for by the KEY EMPLOYEE SHARE
OPTION Plan.
6.3 The exercise price of all stock options shall be the price
provided for by the KEY EMPLOYEE SHARE OPTION PLAN.
6.4 Subject to the CHANGE IN CONTROL AGREEMENT attached hereto as
SCHEDULE E and which is executed concurrently herewith (the
"CHANGE IN CONTROL AGREEMENT"), if Dr. Thornton's employment
is terminated before the fifth anniversary of the granting of
options in the year 2003, Dr. Thornton will have 60 days,
after her employment ceases to exercise vested options.
Subsequent to this 60 days, all options will expire
automatically.
6.5 Dr. Thornton and Phoenix agree that the other terms and
conditions of the KEY EMPLOYEE SHARE OPTION PLAN, shall apply
to the options held by her, save that in the event of a
proposed change of control of Phoenix International, including
under a takeover bid, or any of the other circumstances
covered by the CHANGE IN CONTROL AGREEMENT, the terms and
conditions of the CHANGE IN CONTROL AGREEMENT concerning the
vesting and exercisability of the options shall apply and
override the provisions hereof and of the KEY EMPLOYEE SHARE
OPTION PLAN, providing they are not less favorable than those
contained herein.
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6.6 All grants of stock options are conditional on signature of
the attached CONFIDENTIALITY, PROPRIETARY RIGHTS, REGULATORY
COMPLIANCE AND NON-COMPETITION AGREEMENT (SCHEDULE F ATTACHED)
that requires, among other things, that Dr. Thornton not
compete with Phoenix International for one year after
voluntarily leaving the company or being terminated for a
serious reason pursuant to Article 8 of this Agreement.
7. TERM OF THE AGREEMENT
7.1 Dr. Thornton's employment with Phoenix in her new position
shall commence on June 1, 1998 and shall be for an
indeterminate term.
8. TERMINATION
8.1 TERMINATION BY PHOENIX FOR SERIOUS REASON
8.1.1 Phoenix may terminate this Employment Agreement at any
time, for a serious reason, by resolution of its Board
of Directors adopted at a duly constituted meeting of
the Board. If Phoenix exercises its rights to terminate
this Employment Agreement for a serious reason, Dr.
Thornton shall not be entitled to receive any further
remuneration, save any base salary, vacation, and
benefits (but not bonuses), accrued as at the date of
termination. For the purposes of this agreement, a
"serious reason" shall mean that Dr.
Thornton:
(a) has refused, without valid reason, to comply with
the reasonable instructions of the Board of Directors
or the CEO of Phoenix International given to her in her
capacity as an executive of Phoenix insofar as such
instructions are not inconsistent with the terms of
this Agreement;
(b) has committed improper misconduct which is
materially detrimental to Phoenix, or has been grossly
negligent in the performance of her duties hereunder;
(c) commits wrongful acts against the interests of
Phoenix International or against its property;
(d) becomes subject in any way to bankruptcy or
insolvency laws;
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(e) commits and is found guilty of an indictable
criminal offence or other similar offence involving
fraudulent or dishonest conduct, by a court of
competent jurisdiction; or
(f) gives cause to Phoenix International for a serious
reason similar in gravity to those set forth above.
8.2 TERMINATION BY PHOENIX WITHOUT A SERIOUS REASON
8.2.1 Phoenix may also terminate this agreement at its
discretion for any reason whatsoever by giving Dr.
Thornton 12 weeks prior notice of its decision to
dismiss. Phoenix may, at any time during the notice
period, choose to immediately discharge Dr. Thornton,
but in this case Dr. Thornton shall be entitled to
receive and shall be paid all amounts which she would
otherwise earn during the notice period.
8.2.2 If Phoenix terminates this agreement at its
discretion, without a serious reason, Phoenix shall
pay Dr. Thornton an amount equal to her gross base
annual salary (at the time of notification of
termination) divided by 12 and multiplied by the
number of years of employment (not less than one (1))
Dr. Thornton has been employed by Phoenix
International or any of its subsidiaries. All
appropriate withholding as may be required by law
will be deducted from the amount so calculated. The
starting date of employment for the purpose of
calculating the payment due hereunder is January 27,
1992. This payment shall be made within 7 days after
the last day Dr. Thornton is employed. The bonus for
the fiscal year in which termination takes place, if
any, will be paid pro rata to the number of days
worked in the fiscal year. With the exception of the
amount referred to aforesaid, Dr. Thornton shall have
no right to be paid or to claim any further payments
related to or arising out of the termination of her
employment by Phoenix and she renounces to any such
further right or claim.
8.2.3 Phoenix's obligation to make the aforesaid payments
will not be reduced or affected if Dr. Thornton has
secured alternative employment.
8.3 TERMINATION BY DR. THORNTON
8.3.1 Dr. Thornton may, at her option, terminate this
agreement for any reason whatsoever provided that Phoenix is
given at least 90 days notice before said termination becomes
effective.
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8.3.2 Dr. Thornton has the right to terminate this agreement
if constructively dismissed, and receive compensation
according to the terms and conditions of section 8.2, above.
Dr. Thornton shall be considered to have been constructively
dismissed if a) there is a material and adverse diminution on
an accumulative basis of her duties, authority, position,
compensation, benefits, or title, which is not applied to all
other executives of Phoenix International, (b) she is required
to move her home or residence anywhere other than in the
municipality or metropolitan area in which her office and
residence currently exist; or (c) there is a breach by Phoenix
of any of the material terms of this Agreement.
9. TERMINATION FOLLOWING CHANGE IN CONTROL ETC.
9.1 In the event of a Change of Control or proposed Take-over Bid
(within the meaning of and as such terms are defined in the
CHANGE IN CONTROL AGREEMENT), the terms and conditions of the
CHANGE IN CONTROL AGREEMENT with respect to termination of
employment shall override the provisions hereof to the extent
and provided that they are no less favourable than those
herein contained.
10. CONFIDENTIAL INFORMATION / NON-COMPETITION AND OTHER UNDERTAKINGS
10.1 Dr. Thornton shall sign concurrently herewith the
CONFIDENTIALITY, PROPRIETARY RIGHTS, REGULATORY COMPLIANCE AND
NON-COMPETITION AGREEMENT with Phoenix and Phoenix
International, which is ATTACHED AS SCHEDULE F.
10.2 Dr. Thornton fully understands the provisions of this
Employment Agreement and the CONFIDENTIALITY, PROPRIETARY
RIGHTS, REGULATORY COMPLIANCE AND NON-COMPETITION AGREEMENT,
having had ample opportunity to review same and consult
counsel, if desired. Subject to Section 12 of this Employment
Agreement, Dr. Thornton recognizes that, consistent with
Phoenix International's policies for all of its executives and
senior managers who have equity in the company or who receive
stock options, this agreement binds Dr. Thornton to
non-competition restrictions for one year after her employment
with Phoenix ceases if she voluntarily leaves Phoenix or is
terminated for a serious reason pursuant to Article 8.1 of
this Agreement..
10.3 With respect to the non-competition provisions included in the
CONFIDENTIALITY, PROPRIETARY RIGHTS, REGULATORY COMPLIANCE AND
NON-COMPETITION AGREEMENT, which are applicable after
cessation of employment of Dr. Thornton by Phoenix, it is
understood and agreed by both Parties that the purpose of
these
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provisions is to ensure that Dr. Thornton does not join a CRO
or any other organization offering similar services or
software products to those provided by Phoenix International,
for a period of one (1) year subsequent to the termination of
her employment at Phoenix if she voluntarily leaves Phoenix or
is terminated for a serious reason pursuant to Article 8.1 of
this Agreement. Thus, Dr. Thornton would be free to work for
any biotechnology or pharmaceutical company which does not
offer similar services or software products to those provided
by Phoenix International.
11. INCENTIVES SUBJECT TO CHANGE
11.1 Dr. Thornton acknowledges and accepts that all of Phoenix
International's executive share option plans, bonus plans and
other incentives are subject to future revision by Phoenix
International's Board of Directors, and that if such revisions
conflict with this Employment Agreement, the revisions to the
incentive plans shall prevail and shall replace anything to
the contrary contained in this agreement, provided such
revisions shall have no effect on share options already issued
to Dr. Thornton. Furthermore, such revisions, if made, shall
not be a cause for constructive dismissal notwithstanding any
other provision of this agreement.
12. SURVIVAL OF RESTRICTIVE COVENANTS
12.1 The parties agree that the undertakings of Dr. Thornton under
Section 5 of the CONFIDENTIALITY, PROPRIETARY RIGHTS,
REGULATORY COMPLIANCE AND NON-COMPETITION AGREEMENT, shall
only survive termination of this agreement in accordance with
their respective terms, in the event that Dr. Thornton's
employment is terminated by Phoenix for a serious reason
and/or following Dr. Thornton's resignation (if such
resignation does not follow a Change of Control or a
constructive dismissal),
13. DAMAGES
13.1 Dr. Thornton hereby agrees that any breach by her of Section
3.1 of this Employment Agreement, or of the CONFIDENTIALITY,
PROPRIETARY RIGHTS, REGULATORY COMPLIANCE AND NON-COMPETITION
AGREEMENT, will entitle Phoenix to damages of no less than
$100,000, which amount shall not be reduced for partial
performance or any other reason whatsoever.
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14. GENERAL
14.1 If any provision of this agreement is unenforceable or
invalid, for any reason whatsoever, such unenforceability or
invalidity will not affect the enforceability or validity of
the remaining provisions of this agreement and such provision
will be severable from the remainder of this agreement.
14.2 This agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
14.3 No consent to or waiver of any breach of a term of provision
of this agreement by either party shall be construed as a
consent to or waiver of a subsequent breach of the same term
or provision, nor shall it be considered a consent to or
waiver of any other then existing or subsequent breach of a
different term or provision.
14.4 PHOENIX and the Employee acknowledge that there are other
contracts attached as Schedules to this Employment Agreement.
If these Schedules contain terminology, definitions or terms,
or create rights or obligations which are at variance or
conflict with the terminology, definitions or terms, rights or
obligations used or contained in this Employment Agreement,
then the parties agree that the terms of this Agreement shall
be deemed to set forth their true and complete intention and
agreement.
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IN WITNESS WHEREOF, the parties have executed this agreement in the
City of __________________ on the 1st day of June, 1998
PHOENIX INTERNATIONAL LIFE SCIENCES (IBRD) INC.
Per:
/s/ John W. Hooper
-----------------------------------------
JOHN W. HOOPER, Ph.D.
President
PHOENIX INTERNATIONAL LIFE SCIENCES INC.
Per:
/s/ John W. Hooper
-----------------------------------------
JOHN W. HOOPER, Ph.D.
Chairman and CEO
/s/ Susan Thornton
-----------------------------------------
SUSAN THORNTON, Ph.D.