Exhibit 10.11
EMPLOYMENT AGREEMENT
BETWEEN: PHOENIX INTERNATIONAL LIFE SCIENCES (IBRD) INC., a
corporation duly incorporated under the laws of
STATE, having its head office at ADDRESS, in the City
of CITY, STATE ZIP, and represented herein by its
duly authorized representative,
(hereinafter called "PHOENIX")
AND: JAMES CONKLIN, M.D., domiciled and residing at
1439 Buford Drive, Yardley, PA 19067
(hereinafter called "DR. CONKLIN")
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 his own undertakings for the benefit
of Phoenix hereunder; and
WHEREAS Phoenix wishes to employ Dr. Conklin on the terms and
conditions hereinafter set forth; and
WHEREAS Phoenix and Dr. Conklin wish to acknowledge by this
agreement their mutual rights and obligations with respect to Dr. Conklin's
employment by Phoenix; and
WHEREAS this agreement shall be deemed to have commenced
September 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. Conklin's initial title shall be Senior Vice President and
General Manager, Scientific Software Division (SEE ATTACHED
SCHEDULE A ENTITLED "INITIAL POSITION DESCRIPTION"). Phoenix
International intends to spin off its Scientific Software
Division as a separate company (MIPSS). If and when this takes
place, it is intended that Dr. Conklin will immediately be
appointed President and CEO of MIPSS.
3. OTHER EMPLOYMENT AND DUTY TO DEVOTE WHOLE TIME
3.1 Dr. Conklin agrees that during the term of his employment, he
shall devote his 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. Conklin's starting annual salary shall be
US$220,000, less all applicable deductions, payable bi-weekly
in arrears. If Dr. Conklin is appointed President and CEO of
MIPSS before August 31, 1999, his salary will be identical to
that specified above, but will still be subject to annual
review on the anniversary date of his hiring by Phoenix.
4.2 BASE SALARY INCREASES: Dr Conklin will be eligible to receive
annual increases of his base salary upon each anniversary of
the commencement date, September 1, 1998, of this Agreement.
Said increases will be based on his ability to fulfill the
position description and consistent with decisions of Phoenix
International's Board of Directors.
4.3 CAR EXPENSES: Dr. Conklin will receive a car allowance of
$5,000 annually, payable in monthly instalments.
4.4 BENEFIT PLANS: Subject to completion by Dr. Conklin of any
medical examinations and other like procedures and such
enquiries, as may be required by
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Phoenix International's insurers, Phoenix shall pay and
maintain for Dr. Conklin short term and long term disability
benefits and insurance coverage consistent with the benefits
provided to other executives of Phoenix International.
Dr. Conklin 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. Conklin will be entitled to 4 weeks (20 working
days) annual vacation.
4.6 BONUS: Dr. Conklin 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). If and when Dr. Conklin is appointed President and CEO
of MIPSS, his eligibility for the Phoenix International bonus
plan will cease, and he will be eligible for a bonus plan
agreed between him and the Board of Directors of MIPSS.
5. PROFESSIONAL LIABILITY INSURANCE
5.1 Dr. Conklin 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 his level. If and when Dr. Conklin becomes
President and CEO of MIPSS, he will be covered by insurance no
less favorable to him than that specified above and provided
by Phoenix International.
6. EQUITY IN MIPSS
6.1 If and when Dr. Conklin is appointed President and CEO of
MIPSS, he will be granted equity in MIPSS, as assigned by
MIPSS Board of Directors. It is expected that such equity will
be approximately 10% of the portion of the equity of MIPSS set
aside for employees of MIPSS.
7. TERM OF THE AGREEMENT
7.1 Dr. Conklin's employment with Phoenix in his new position
shall commence on September 1, 1998 and shall be for an
indeterminate term.
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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.
Conklin 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.
Conklin:
(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 him in his
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 his 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;
(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.
Conklin 4 weeks prior notice of its decision to
dismiss. Phoenix may, at any time during the notice
period, choose to immediately discharge Dr. Conklin,
but in this case Dr. Conklin shall be entitled to
receive and shall be paid all amounts which he would
otherwise
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earn during the notice period.
8.2.2 If Phoenix terminates this agreement at its
discretion, without a serious reason, Phoenix shall
pay Dr. Conklin an amount equal to his gross base
annual salary (at the time of notification of
termination). All appropriate withholding as may be
required by law will be deducted from the amount so
calculated. This payment shall be made within 7 days
after the last day Dr. Conklin 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. Conklin shall have
no right to be paid or to claim any further payments
related to or arising out of the termination of his
employment by Phoenix and he 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. Conklin has
secured alternative employment.
8.3 TERMINATION BY DR. CONKLIN
8.3.1 Dr. Conklin may, at his option, terminate this agreement
for any reason whatsoever provided that Phoenix is given at
least 120 days notice before said termination becomes
effective.
8.3.2 Dr. Conklin 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. Conklin
shall be considered to have been constructively dismissed if
a) there is a material and adverse diminution on an
accumulative basis of his duties, authority, position,
compensation, benefits, or title, which is not applied to all
other executives of Phoenix International, or (b) there is a
breach by Phoenix of any of the material terms of this
Agreement.
9. CONFIDENTIAL INFORMATION / NON-COMPETITION AND OTHER
UNDERTAKINGS
9.1 Dr. Conklin shall sign concurrently herewith the
CONFIDENTIALITY, PROPRIETARY RIGHTS, REGULATORY COMPLIANCE AND
NON-COMPETITION AGREEMENT with Phoenix and Phoenix
International, which is ATTACHED AS SCHEDULE C.
9.2 Dr. Conklin 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 11 of this Employment
Agreement, Dr. Conklin recognizes that, consistent with
Phoenix International's policies for
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all of its executives and senior managers who are eligible to
receive equity in the company or its subsidiaries, or who
receive stock options, this agreement binds Dr. Conklin to
non-competition restrictions for one year after his employment
with Phoenix ceases if he voluntarily leaves Phoenix or is
terminated for a serious reason pursuant to Article 8.1 of
this Agreement..
9.3 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. Conklin by Phoenix, it is
understood and agreed by both Parties that the purpose of
these provisions is to ensure that Dr. Conklin 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
his employment at Phoenix if he voluntarily leaves Phoenix or
is terminated for a serious reason pursuant to Article 8.1 of
this Agreement. Thus, Dr. Conklin 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.
10. INCENTIVES SUBJECT TO CHANGE
10.1 Dr. Conklin acknowledges and accepts that all of Phoenix
International's executive 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. Furthermore, such revisions, if
made, shall not be a cause for constructive dismissal
notwithstanding any other provision of this agreement.
11. SURVIVAL OF RESTRICTIVE COVENANTS
11.1 The parties agree that the undertakings of Dr. Conklin 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. Conklin's
employment is terminated by Phoenix for a serious reason
and/or following Dr. Conklin's resignation (if such
resignation does not follow a constructive dismissal).
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12. DAMAGES
12.1 Dr. Conklin hereby agrees that any breach by him 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
US$100,000, which amount shall not be reduced for partial
performance or any other reason whatsoever.
13. GENERAL
13.1 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.
13.2 This agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
13.3 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.
13.4 Phoenix, Phoenix International 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 Montreal on the 1st day of September, 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/ James Conklin
-------------------------------------------
JAMES CONKLIN, M.D.