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EXHIBIT 10.18
MANAGING DIRECTOR EMPLOYMENT AGREEMENT
THIS MANAGING DIRECTOR EMPLOYMENT AGREEMENT (the "Contract") is
made
and effective as of the date indicated below by and between
DataTRAK Deutschland GmbH, Am Probsthof 80, 53121 Bonn (the
"Company")
and
Dr. Wolfgang Summa, Endenicher Allee 124, 53121 Bonn.
WITNESSETH:
WHEREAS, based on his employment contract dated January 13, 1998,
Dr.
Summa is employed with the Company since January 1, 1998, as
Manager Operations;
and
WHEREAS, since the parties entered into the employment contract
dated
January 13, 1998, the nature and scope of Dr. Summa's
responsibilities has
changed; and
WHEREAS, by shareholders' resolution of February 23, 1999, Dr.
Summa
was appointed as Managing Director (Geschaftsfuhrer) of the Company
with sole
signatory power; and
WHEREAS, the Company and Dr. Summa desire to terminate the
employment
contract dated January 13, 1998, and enter into an agreement
expressly
indicating the new terms and conditions of their relationship.
NOW, THEREFORE, in consideration of the mutual promises and
covenants
contained herein, the Company and the Dr. Summa agree as
follows:
1. DUTIES AND REPRESENTATION. The Company employs Dr. Summa as
Managing Director (Geschaftsfuhrer). Dr. Summa shall perform his
duties in
accordance with the instructions of the shareholders' meeting and
in compliance
with this managing director employment contract (the "Contract"),
the Articles
of Association of the Company and the applicable legal
provisions.
1.1 PERFORMANCE OF DUTIES. During the Term of this Contract, as
those terms are defined herein, Dr. Summa shall at all times,
faithfully,
industriously and to the best of his abilities, perform all duties
that
reasonably may be required of him by virtue of his position. Dr.
Summa shall
devote his full business time and efforts to the affairs of the
Company. Dr.
Summa shall require the prior written approval of the shareholders'
meeting for
any compensated or
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uncompensated side activities (Nebentatigkeit). This shall also
apply for
positions on a supervisory board, advisory board or similar
boards.
1.2 REPRESENTATION. Dr. Summa shall be entitled to represent
the
Company alone. However, Dr. Summa must always comply with the
applicable
DataTRAK internal control procedures and practices.
Notwithstanding the approval requirements pursuant to the Articles
of
Association, Dr. Summa shall require the prior written approval of
the
shareholders' meeting for the following transactions, unless they
have already
been approved by the shareholders' meeting in the annual
budget:
-
the
granting and revocation (unless in case of imminent danger) of
Prokura or other general Powers of Attorney,
-
any
measure which significantly changes the structure of the
Company
or outside the object of the Company, including the cessation
of
existing lines of business and areas of business activity of
the
Company,
-
the sale
of the Company in whole or essential parts thereof,
-
the
acquisition, sale or encumbrance of participations in other
companies in whole or in part,
-
the
establishment, closure, sale or relocation of subsidiaries and
branches,
-
the
entering into any joint venture or partnership agreement and
the
exercise of voting rights conferred by virtue of participation
in
another company, partnership or other organization,
-
the
purchase, encumbrance or sale of real estate or similar rights
as
well as any obligatory contracts related thereto,
-
the
erection of new or major change of existing buildings belonging
to
the Company,
-
the
conclusion, termination or amendment of customer contracts (in
particular Clinical Trial Projects) having an aggregate
financial
exposure of more than DM 500,000 per contract,
-
the
conclusion, termination or amendment of employee contracts
having
a term of more than one year and an aggregate financial exposure
of
more than DM 100,000,
-
the
conclusion, termination or amendment of any other contract with
an
aggregate exposure of more than DM 50,000,
-
the
assuming of guarantees or warranties (except customary product
warranties), the assuming or granting of loans of any kind outside
the
customary payment requirements of suppliers and customers,
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-
the
conclusion, termination or amendment of existing agreements
with
banks or credit institutions,
-
the
granting of loans to employees,
-
the
formation or acquisition of trademarks, trade names or
licenses,
-
all
transactions which exceed the limits of the annual budget of
the
Company as approved by the shareholders' meeting,
-
the
conclusion, amendment or termination of employment contracts
with
Prokuristen or other executive employees,
-
the
granting of participation rights on turnover and profit as well
as
the granting of boni in excess of the DataTRAK bonus plan approved
by
the shareholders' meeting,
-
the
establishment and change of non-budgeted remuneration and/or
pension payments to employees of the Company,
-
the
introduction of new, fundamental changes or the cessation of
existing product groups, fundamental changes of the internal
organisation or the wage and salary policy as well as other
fundamental strategic decisions that relate to the sales
program,
sales activities, etc.,
-
the
pledging or mortgaging of any asset of the Company,
-
the
issuing or acceptance of bills of trade,
-
the instigation or
resolution of legal actions (including arbitration
proceedings) to which the Company is a party with an exposure of
more
than DM 200,000,
-
any waiver
of claims exceeding DM 20,000, and
-
any other
measure, action or decision which may have a material impact
on the business of the Company.
2. SALARY. The Company will pay Dr. Summa a base salary of DM
210,000
(two hundred ten thousand Deutsche Mark per year in accordance with
the
Company's payroll practices, or in such other periodic method to
which both
parties agree, minus statutory withholdings and deductions. The
Company will
review Dr. Summa's compensation hereunder on an annual basis, and
may adjust the
above-indicated level, in its sole discretion, based on Dr. Summa's
performance
of his duties hereunder and/or the performance of the Company,
provided,
however, that the Company shall not reduce Dr. Summa's salary to be
paid in any
succeeding year to an amount less than Dr. Summa's base salary as
established
herein or as increased over time without Dr. Summa's written
agreement. Both
parties agree that the above reference to an "annual base salary"
or to other
benefits of employment, including but not limited to bonuses, does
not in any
way guarantee and/or add to the express
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length of employment of Dr. Summa, other than as set forth
herein.
3. BONUS PLANS. The Company may pay Dr. Summa additional
compensation
in the form of a discretionary bonus and/or pursuant to an
established bonus
plan(s) that the Company or DataTRAK International Inc. may have in
effect from
time to time for similarly situated employees. The Company reserves
the right to
modify or cancel any bonus plan(s) that it may have in effect at
any given time.
The Company will be obligated to pay all amounts earned and due to
Dr. Summa
prior to the modification or cancellation of any established bonus
plans. The
bonus may be paid in cash, in equity securities of DataTRAK
International Inc.,
in stock options, or in any combination thereof at the Company's
discretion.
4. STOCK OPTION PLAN. Dr. Summa shall be eligible to participate
in
any stock option plans that the Company or DataTRAK International
Inc. may make
available from time to time for similarly situated employees. The
granting of
stock options will be pursuant to the terms and conditions of a
separate Stock
Option Agreement.
5. BENEFITS. During the Term of this Contract, Dr. Summa shall
be
entitled to participate in any employment benefit plans and/or
retirement plans
which are maintained or established by the Company for its
similarly situated
employees, including enrollment in medical, dental, and life
insurance policies
or plans, as well as a 401K plan, and all paid holidays afforded to
other
similarly situated employees. Additionally, Dr. Summa is entitled
to capital
accumulation benefits (Vermogenswirksame Leistungen) in the amount
of DM 936.00
(nine-hundred-thirty-six Deutsche Mark) per year. These benefits
are granted in
addition to his salary as provided in Section 2.
6. RESERVATION OF VOLUNTARINESS. Any and all payments in kind and
any
and all payments in cash as gratification, bonus, profit sharing or
any other
benefits provided in addition to the base salary according to
Section 2 are
discretionary benefits by the Company and establish no right to
such claims in
the future. However, this does not apply for the capital
accumulation benefits
as mentioned in Section 5.
7. COMPANY CAR. The Company will provide Dr. Summa with a company
car
which he is also entitled to use for private purposes. Type and
purchase price
will be determined by the shareholders' meeting. The current
allowance is DM
7,800 p.a. (This Allowance is in addition to Dr. Summa's salary as
stated in
section 2.) All taxes arising out of the private use as well as
expenditures for
private travels shall be borne by Dr. Summa. The Company is
entitled to demand
the return of the company car at the end of Dr. Summa's employment
or in case of
Dr. Summa's suspension. Until further notice, the vehicle [Audi A6]
with the
license plate number BN-DT440 remains at Dr. Summa's disposal as
his company
car.
8. VACATIONS. During the Term of this Contract, Dr. Summa shall
be
entitled to annual paid vacation time equal to thirty (30) days, to
be taken at
a time or times acceptable to the Company and otherwise consistent
with the
terms and conditions of this Contract and the Company's vacation
pay policy.
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9. RELOCATION EXPENSES. The Company is entitled to transfer Dr.
Summa
to a different employment location outside of Bonn. During the Term
of this
Contract, if Dr. Summa is required by the Company to relocate his
permanent
residence to a location outside of
[North-Rhine-Westphalia/Germany], then the
Company will reimburse Dr. Summa for all reasonable relocation
expenses,
including the expense of moving Dr. Summa's possessions and
reasonable expenses
incurred in travel to the new location for the purpose of locating
housing. The
Company will further reimburse Dr. Summa for all reasonable
temporary housing
expenses at the new location for the first 90 days after the date
requested by
the Company for Dr. Summa's relocation.
9.1 REAL ESTATE BROKER'S COMMISSIONS. The Company will
reimburse
Dr. Summa for reasonable licensed real estate broker's commission
(Broker's Fee)
incurred by Dr. Summa in the sale of Dr. Summa's permanent
residence if Dr.
Summa is required by the Company to relocate his permanent
residence to a
location outside of [North-Rhine-Westphalia/Germany]. Dr. Summa
will provide the
Company with appropriate documentation to support the Broker's Fee
incurred by
Dr. Summa.
10. TERM AND TERMINATION OF AGREEMENT. This Contract shall commence
on
the date signed by both parties as indicated below and shall
continue for a
period of one (1) year (the "Initial Term"), unless sooner
terminated as
provided in paragraphs 10.1, 10.2, 10.3, 10.5, 10.6, 10.7 or 10.8
of this
Contract. This Contract will renew automatically for successive one
(1) year
periods (the "Renewal Period," and collectively with the Initial
Term, the
"Term") unless previously terminated or either party gives notice
of non-renewal
at least 90 days prior to the commencement of such Renewal
Period.
10.1 TERMINATION FOR DEATH. This Contract shall terminate
automatically upon the Dr. Summa's death. With the exception of any
benefits
under the Company's employee benefit plans, and any stock options
that have
vested under the Company's Stock Option Plan(s) which may inure to
the benefit
of Dr. Summa's beneficiaries upon Dr. Summa's death, the Company
shall have no
further obligations under the terms and conditions of this
Contract. If Dr.
Summa's employment is terminated pursuant to this section during
the Term of
this Contract, Dr. Summa's heirs shall be entitled to his salary
through the
date of such termination, payment for any pro-rata bonus earned and
due at the
time of termination pursuant to any (if any) bonus plan(s) the
Company may have
in effect at the time of termination, and to any other employee
benefits
maintained or established by the Company for its similarly situated
employees.
10.2 TERMINATION FOR DISABILITY. The Company and Dr. Summa
acknowledge and agree that the essential functions of the Dr.
Summa's position
are unique and critical to the Company and that a disability
condition which
causes the Dr. Summa to be unable to perform the essential
functions of his
position with or without reasonable accommodations for a period in
excess of one
hundred twenty (120) calendar days will constitute an undue
hardship on the
Company. If the Company determines in good faith upon medical
certification and
in consultation with Dr. Summa and, if necessary or appropriate,
with Dr.
Summa's physician(s), that Dr. Summa is disabled and unable to
perform the
essential function of his position with or without reasonable
accommodations, it
may give Dr. Summa written notice of its intention to terminate Dr.
Summa's
employment. If Dr. Summa's employment
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is terminated pursuant to this section during the Term of this
Contract, Dr.
Summa shall be entitled to his salary through the date of such
termination,
payment for any pro-rata bonus earned and due at the time of
termination
pursuant to any (if any) bonus plans the Company may have in effect
at the time
of termination, and to any other employee benefits maintained or
established by
the Company for its similarly situated employees.
10.3 TERMINATION BY COMPANY FOR CAUSE. During the Term of this
Contract, the Company may terminate Dr. Summa's employment for
cause by written
notification citing the specific reasons for termination. For
purposes of this
Contract, "Cause" means in particular (without being limited
thereto):
(1) Dr. Summa's conviction of a felony invo
