HQHealthQuest Medical & Wellness Centers, Ltd. STEPHEN H. M. SWIFT EMPLOYMENT AGREEMENT
HQHealthQuest
Medical & Wellness Centers, Ltd.
▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇ EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this "Amendment") is entered to be effective as of
the 1st day of January, 2005, (the "Effective Date"), by and
between HQHealthQuest
Medical & Wellness Centers, Ltd. , an Oklahoma corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇ (the
"Employee").
For valuable consideration,
the Company and the Employee agree as follows:
1.
Employment;
Offices.
(A) Employment. The
Company hereby employs the Employee and the Employee hereby accepts employment
with the Company for the period and upon the terms and conditions contained in
this Agreement. The
Employee hereby expressly acknowledges that the ownership of stock in the
Company is not a guaranty of employment or continued employment with the
Company.
(B) Duties;
Authority. The Employee shall have the title of AChairman
of the Board of Directors, Chief Executive Officer and President@
of the Company and shall have those duties, responsibilities and authority set
forth in respect to these positions in the By-Laws of the Company adopted on
November 8, 2004, and such additional duties, responsibilities and authority as
may from time to time be mutually agreed between the Employee and the
Company. Further, whenever a subsidiary of the Company is formed or
acquired, the Employee shall have the same title, duties, responsibilities and
authority in the subsidiary, unless otherwise agreed between the Company and the
Employee, and this Agreement shall govern the Employee’s employment under any
such subsidiary unless otherwise determined by the Company and the
Employee. When applicable, the term “Company” shall include any
subsidiary of the Company.
(C) Performance. During
the term of employment under this Agreement, the Employee shall devote on a
full-time basis his time, energy, skill and best efforts to the performance of
his duties hereunder in a manner that will faithfully and diligently further the
business and interests of the Company. The Employee shall comply with
the employee policies or written manuals of the Company as they exist from time
to time as applicable generally to the Company=s
CEO or employees.
(D) Resignation from
Office. The Employee hereby irrevocably resigns from every
position the Employee holds in the Company or any subsidiary controlled by the
Company, including directorships and offices in the Company or any subsidiary
controlled by the Company, on the date of the involuntary termination of the
Employee’s employment with the Company for cause.
1
2.
Term.
Unless
otherwise terminated in accordance with Sections 4, 6 or 7 of this Agreement,
the term of employment hereunder (the AInitial
Term@)
shall be for a period of five (5) years from the Effective Date of this
Agreement, and thereafter will automatically renew for successive two year
terms (the@Renewal
Terms@)
unless either party serves notice in writing upon the other party, at least 180
days prior to the expiration of a Term, that such party elects not to renew the
Employee=s
employment under this Agreement for the next succeeding term. If the
Employee=s
employment is terminated as set forth herein, the Term shall end on the
effective date of such termination of employment. The AInitial
Term@
and ARenewal
Terms,@
if any, are also sometimes collectively referenced herein as the ATerm@.
3.
Compensation for
Employment.
(A) During
the term of this Agreement and until the date when the first clinic opens for
business, the Company shall provide and pay the following benefits and
compensation to the Employee:
(i) Base
Salary. The initial base annual compensation of the Employee
for his services as an employee of the Company under this Agreement shall be
$180,000 and shall commence on the Effective Date, which the Company shall pay
to the Employee in equal installments and in accordance with the normal payroll
policies of the Company; and
(ii) Insurance. The
Company shall pay to the Employee=s
health insurance carrier an amount sufficient to pay the premium (standard
premium not increased or rated for any reason) for the Employee and his
dependents for health and dental insurance with the same coverage offered to the
other employees of the Company. The Company shall not be obligated to
provide the benefits provided under the terms of this Section 3(a)(ii) after the
termination of the Employee’s employment hereunder if the Employee is terminated
for cause; and
(iii) Payment and Reimbursement of
Expenses. The Company shall pay or reimburse the Employee for
all reasonable travel and other expenses incurred by the Employee in the
organization of the Company or in the performance of his obligations under this
Agreement, in accordance with the policies and procedures of the
Company. Such expenses shall include, but not be limited to, expenses
incurred before the Effective Date and expenses for attendance at medical/spa
and related seminars, conferences and continuing education meetings and trade
shows, as well as expenses related to the organization of the Company, provided
that the Employee properly accounts for such expenses in accordance with the
regular policies of the Company.
2
(B) During
the term of this Agreement and from and after the date when the first clinic
opens for business, the Company shall provide and pay the following benefits and
compensation to the Employee:
(i) Base
Salary. The base annual compensation of the Employee for his
services as an employee of the Company under this Agreement shall be $250,000,
which the Company shall pay to the Employee in equal installments and in
accordance with the normal payroll policies of the Company. The base
salary shall be reviewed at least annually by the Company, and the salary may be
increased, but not decreased, during the Term;
(ii) Incentive
Compensation. The Employee shall be eligible to receive
incentive bonuses and other compensation on terms and conditions to be
determined by the Board of Directors each year based upon the performance of the
Company and the Employee=s
contribution to such performance. The incentive compensation
shall be reviewed at least annually by the Company;
(iii) 401(k)
Plan. The Company shall institute a 401(k) Plan or similar
benefit to take effect at some time during the first two years of operation of
the first clinic to be operated by the Company and shall match the Employee=s
contribution, within the contribution schedule set by the Company, during each
year of operation of the Company during the Term; any such plan or arrangement
shall be revocable and subject to termination or amendment at any
time;
(iv
Payment and Reimbursement of
Expenses. The Company shall pay or reimburse the Employee for all
reasonable travel and other expenses incurred by the Employee in the
organization of the Company or in the performance of his obligations under this
Agreement, in accordance with the policies and procedures of the
Company. Such expenses shall include, but not be limited to,
attendance at medical/spa and related seminars, conferences and continuing
education meetings and trade shows, provided that the Employee properly accounts
for such expenses in accordance with the regular policies of the
Company;
(v) Insurance. During
the Term, the Company shall pay to the Employee=s
group health insurance carrier an amount sufficient to pay the premium (standard
premium not increased or rated for any reason) for the Employee and his
dependents for health and dental insurance with the same coverage offered to the
other employees of the Company, disability insurance in the amount of two times
the Employee=s
annual base compensation under such terms and conditions as the Company shall
determine, and life insurance with a death benefit of not less than
two times the Employee=s
annual base compensation. Further, during the Term, the Company shall provide
the Employee at the Company=s
expense, an annual physical examination. The Company shall not be
obligated to provide the benefits provided under the terms of this Section 3(b)
after the termination of the Employee’s employment hereunder if the Employee is
terminated for cause; provided, that, in the event the Employee disputes the
grounds given for the termination, the benefits provided under the terms of this
Section 3(b)(v) after the termination of the Employee’s employment hereunder
shall be provided until the grounds are established in an arbitration,
litigation or mutually agreed resolution, but under no circumstances shall such
benefits be provided for more than one year from the date of termination
regardless of the existence of a dispute regarding the grounds or justification
for termination;
3
(vi)
Other
Benefits. During the Term, the Employee shall be entitled to
participate in or receive benefits under any plan or arrangement made available
by the Company to its employees generally (including any health, dental,
disability, and life insurance programs), subject to and on a basis consistent
with the terms, conditions and overall administration of such plans and
arrangements. Any such plan or arrangement shall be revocable and
subject to termination or amendment at any time; and
(vii) Vacation. The
Employee shall be entitled to four (4) weeks paid vacation during each year of
the Term. Such vacation shall be taken at times consistent with the
effective discharge of the Employee=s
duties. Such vacation shall be deemed fully earned at the beginning
of each year of the Term. For purposes of vacation, the Employee’s
employment shall be determined to have commenced on the Effective
Date.
4.
Termination.
(A)
Termination Without
Cause.
(i)
Termination By the
Company.
(a) The
Company may terminate the employment of the Employee at any time without Cause
for any reason whatsoever and without prior notice. The reduction, in
any manner or to any extent, of any of the duties, responsibilities, authority
or compensation of the Employee, or the alteration of the title of the Employee,
without the Employee’s consent, shall constitute termination without
cause.
(b) Upon
termination of the employment of the Employee without Cause, whether during or
at the end of a Term, the Company shall pay and provide, and the Employee shall
be entitled to receive: (i) within thirty (30) days following the
termination, a lump sum payment of any unpaid salary and unused vacation accrued
through the date of termination; (ii) within thirty (30) days following the
termination, a lump sum payment of any unreimbursed business expenses properly
incurred prior to the date of termination; (iii) a severance in the amount of
the salary and paid in installments and the continuation of the payment for the
insurance coverages in effect on the date of the termination of the employment
under Sections 3(b)(i) and (v) of this Agreement for a period of two years from
the date of termination of employment; and (iv) all rights granted to
the Employee under applicable law or any employee benefit plan in effect on the
date of termination (in accordance with the terms of any such
plan).
4
(ii)
Termination By the
Employee.
(a) The
Employee may voluntarily terminate his employment at any time upon not less than
thirty (30) days written notice.
(b) Upon
termination of the employment by the Employee without cause, the Company shall
have no further liability or obligation to the Employee under this Agreement or
otherwise in connection with his employment hereunder, except for: (i) any
unpaid salary and unused vacation accrued through the date of
termination, and (ii) any unreimbursed business expenses properly incurred prior
to the date of termination, and (iii) rights granted to the Employee under
applicable law or any employee benefit plan in effect on the date of termination
(in accordance with the terms of any such plan); and
(B)
Termination for
Cause.
(i)
Termination By the
Company.
(a) The
Company may terminate the employment of the Employee at any time for
Cause. Cause must be found to exist by a majority of the members of
the Company’s board of directors before a termination for cause may
occur. For purposes hereof, ACause@
means any of the following:
(1) the
Employee=s
engagement in fraud, misappropriation of Company property, embezzlement or any
similar action or conduct which would constitute a felony or a basis for
suspension from the Medicare of Medicaid programs; or
(2) the
commission by the Employee of a crime involving moral turpitude; or
(3) the
Employee=s
failure, within thirty (30) days after the Employee shall have been given a
written notice, to cure a breach of a material term or condition of the
Employee=s
duties or responsibilities under this Agreement, which breach does not involve
the commission of one of the other grounds for termination for
cause.
(b) Upon
termination of the Employee’s employment hereunder for Cause, the Company shall
have no further liability or obligation to the Employee under this Agreement or
otherwise in connection with his employment hereunder, except for: (i) any
unpaid salary and unused vacation accrued through the date of termination,
(ii) any unreimbursed expenses properly incurred prior to the date of
termination, and (iii) all rights granted to the Employee under applicable
law or any employee benefit plan in effect on the date of termination (in
accordance with the terms of any such plan). Any financial obligation
of the Company to the Employee referenced under this paragraph shall be subject
to offset in the amount owed by the Employee to the Company.
5
(ii) Termination By the
Employee.
(a) The
Employee may terminate his employment with the Company at any time for
Cause. For purposes hereof, ACause@
means the Company=s
failure, within thirty (30) days after the Company shall have been given a
written notice from the Employee, to cure a breach of a material term or
condition of the Company=s
duties or responsibilities under this Agreement.
(b) Upon
termination by the Employee of the Employee’s employment hereunder for Cause,
the Company shall have no further liability or obligation to the Employee under
this Agreement or otherwise in connection with his employment hereunder, except
that the Company shall pay and provide, and the Employee shall be entitled to
receive: (i) within thirty (30) days following the termination, a
lump sum payment of any unpaid salary and unused vacation accrued through the
date of termination; (ii) within thirty (30) days following the
termination, a lump sum payment of any unreimbursed business expenses properly
incurred prior to the date of termination; (iii) a severance in the amount of
the salary and paid in installments and the continuation of the payment for the
insurance coverages in effect on the date of the termination of the employment
under Sections 3(b)(i) and (v) of this Agreement for a period of two years from
the date of termination of employment; and (iv) all rights granted to
the Employee under applicable law or any employee benefit plan in effect on the
date of termination (in accordance with the terms of any such plan). Any
financial obligation of the Company to the Employee referenced under this
section shall be subject to offset in the amount owed by the Employee to the
Company.
(C) In
the event that the Company terminates the Employee’s employment with the Company
or any subsidiary of the Company, with or without cause, and at the time of the
termination, the Employee is a personal guarantor of any indebtedness
or obligation of the Company, or has personally become a co-maker on any notes
or contracted to become an obligor on any contractual obligations of the
Company, then the Company shall utilize its best efforts to secure the release
of the Employee from liability for any of said guarantees, notes, contracts or
obligations, and failing to accomplish the foregoing after a good faith effort
shall have been made, the Company shall: (i) execute a written
document holding the Employee harmless from and agreeing to indemnify the
Employee against any and all demands, costs, expenses, damages, losses,
judgments , defense costs, including attorneys’ fees, liabilities, actions,
causes and claims arising from or related to any of said guarantees, notes,
contracts or obligations; and (ii) continue, until such releases are secured, to
pay to the Employee an amount equal to the salary in effect on the date of the
termination of the employment under Section 3(b)(i) of this Agreement and to
provide, at the Company’s expense, to the Employee the insurance coverage
(health, life and disability) provided by the Company to the Employee under
Section 3(b)(v) of this Agreement at the time his employment was terminated;
provided, that the payments and insurance provided to the Employee under this
Section 4(C) shall be in addition to and shall precede the commencement of any
severance payments and payments for insurance otherwise due to the
Employee under this Agreement.
6
5.
Indemnification. The
Employee is hereby indemnified by the Company upon the terms, conditions and in
the manner and to the extent of the indemnification provided in the Certificate
of Incorporation adopted by the Company on November 8, 2004, or upon such other
terms as the Employee and the Company may mutually adopt in writing;
and
6.
Disability. In
the event the Employee becomes disabled during the Term, the Company shall
continue the salary, insurance and other benefits under Section 3 of this
Agreement during the disability of the Employee for a period of up to twelve
(12) months following the date on which the disability commenced; provided, that
after three months of continuous disability, the Company may employ another
person in the position of the Employee. After twelve months of
continuous disability, the Company may terminate the employment of the Employee
under this Agreement. ADisability,@
for purposes of this section, shall mean one or more mental or physical
conditions, confirmed by a certificate of a physician or psychiatrist, which
prevents the Employee from regularly performing the normal duties of his office
under this Agreement. The end of the period of disability shall
likewise be certified by a physician of psychiatrist. Termination as
a consequence of disability shall be treated as a termination without cause
under Section 4 of this Agreement; and the Company may apply the disability
insurance payments received under the disability insurance carried by the
Company hereunder against the monetary obligation of the Company under the
severance payment obligation in section 4(A)(i)(b).
7.
Cancellation. In
the event that the Company is for any reason unable to commence operations of a
medical clinic and spa on or before October 1, 2005, this Agreement shall
terminate on such date and the rights of the Employee and obligations of the
Company shall be the same as are provided in Section 4(A)(ii)(b) of this
Agreement.
8.
Non-Solicitation. For
the longer of: (i) the period while the Employee is receiving a
salary or severance payment from the Company, or (ii) one year following the
date of termination by the Company of the employment of the Employee with cause
or without cause, or following the voluntary termination by the Employee of the
employment of the Employee, the Employee will not, directly or indirectly: (i)
solicit any customer of the Company or any subsidiary owned by the Company, as
of the date of termination for the purpose of offering products or services to
such customer of the same type as are offered by the Company or such subsidiary
as of the date of termination; or (ii) solicit any Employees of the Company or
such subsidiary for purposes of offering such person(s) employment in a business
which competes with the Company or such subsidiary as of the date of
termination.
9. Non-Disclosure. The
Employee will not, without first obtaining the Company=s
written consent, disclose to others, or use (except in the performance of his
duties for the Company), either during or after the term of employment, any
information or data which pertains to the Company=s
business, customers or interests and which is not freely available to persons
not employed by the Company. Upon termination of the Employee=s
employment, the Employee will promptly turn over to the Company all such
information or data, in every medium maintained by the Employee, as well as all
existing documents and all copies of such information or data made or acquired
by the Employee during his employment.
7
10.
Notices. All
notices, requests, demands, and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given, made,
and received only when personally delivered, sent by electronically confirmed
e-mail, visual mail or facsimile transmission, delivered by Federal
Express or other nationally recognized courier service, or two days after having
been deposited in the United States mail, certified mail, postage prepaid,
return receipt requested, to the address set forth on the signature page
herein. Either party may designate a different address by giving
notice of change of address in the manner provide above.
11.
Waiver. No
waiver or modification in whole or in part of this Agreement, or any term or
condition hereof, shall be effective against any party unless expressly
referenced in a writing which expressly states that it is a waiver or
modification of this Agreement and which is duly signed by the party sought to
be bound. Any waiver or any breach of any provisions hereof or any
right or power by any party on one occasion shall not be construed as a waiver
of, or a bar to, the exercise of such right or power on any other occasion or as
a waiver of any subsequent breach.
12.
Binding Effect;
Successors. This Agreement shall be binding upon and shall
inure to the benefit of the Company and its successors and assigns, and shall
inure to the benefit of and be binding upon the Employee and his executors,
administrators, heirs, and legal representatives. This Agreement may
not be transferred, sold or assigned by the Company. Because the
Employee's duties and services hereunder are special, personal, and unique in
nature, the Employee may not transfer, sell or otherwise assign his rights,
obligations, or benefits under this Agreement.
13.
Controlling
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Oklahoma applicable to
contracts made and to be performed therein, exclusive of the conflict of laws
provisions thereof or of any other State.
14.
Severability. If
any provision of this Agreement shall be held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect or impair the validity or
enforceability of the remaining provisions of this Agreement, which shall remain
in full force and effect and the parties hereto shall continue to be bound
thereby.
15.
Actions; Injunctive Relief;
Fees. The Employee and the Company shall be entitled to
injunctive relief from the courts or arbitrators to enforce their respective
rights hereunder. In the event an action is brought to enjoin any
conduct, the defendant waives any requirement of the posting of a bond of any
type by the plaintiff in such action. The Employee agrees that, in
the event he violates the terms of Sections 8 or 9 of this Agreement,
irreparable damage will be sustained by the Company. In the event an
action is brought to enforce the terms of this Agreement or to resolve any
dispute or controversy arising among the parties hereto regarding the Employee’s
employment with the Company or any term, covenant or condition of this Agreement
or the breach thereof, the prevailing party shall be entitled to recover his or
its reasonable attorney=s
fees and costs incurred in the prosecution or defense of said action from the
other party. A party that is forced to seek an order compelling arbitration and
that succeeds in enforcing this Agreement shall be awarded its attorney fees and
costs by the court compelling arbitration.
8
16. Arbitration of
Disputes.
(A)
Any
dispute or controversy arising among the parties hereto regarding any term,
covenant or condition of this Agreement or the breach thereof shall, upon
written demand of any party hereto, be submitted to and determined by
arbitration before the American Arbitration Association, in Tulsa, OK, by a
single arbitrator, in accordance with the rules of the Association then in
effect in respect to the arbitration of employment disputes; provided, that any
party hereto may seek injunctive relief from a court and the proceeding for such
equitable relief shall not be subject to dismissal or stay as a result of a
request for arbitration under this section . The arbitrator shall
have the authority to grant injunctive relief, but the seeking or obtaining of
injunctive relief from a court by any party shall not be deemed a waiver by that
party of the right to demand arbitration of any dispute arising
hereunder.
(B) The
arbitrators may not amend, vary or invalidate any provision of this
Agreement. Any award or decision rendered shall be made by means of a
written opinion explaining the arbitrators' reasons for the award or decision,
and the award or decision shall be final and binding upon the parties
hereto. Judgment upon the award or decision rendered by the
arbitrators may be entered in any court of competent
jurisdiction. The
parties hereby waive the right to appeal the judgment, award or decision of the
arbitrator.
(C) In
any such proceeding, the arbitrator shall, after a separate hearing, grant, and
the prevailing party shall be entitled to recover, its costs of prosecuting or
defending (or both) the claims made, including its reasonable attorneys’ fees
and costs, as well as the costs and fees of the arbitration, from the other
party(s).
(D) THE PARTIES ACKNOWLEDGE THAT THEY ARE
WAIVING IMPORTANT RIGHTS, INCLUDING THE RIGHT TO TRIAL BY JURY AND THE RIGHT TO
THE RESOLUTION OF THEIR DISPUTES BY A COURT, BY ENTERING THIS
AGREEMENT.
9
17.
Survival. The
terms and conditions of sections 4, 5, 8, 9, 15 and 16 of this Agreement shall:
be construed and enforced to the maximum extent permitted by law; survive
termination of the employment relationship and of this Agreement; bind agents,
assigns, heirs, spouses, relatives, dependents, executors, guardians, and others
with legal standing to file suit for claims covered by or relating to this
Agreement, even in the absence of a signature by such potentially affected
parties.
18.
Entire
Agreement. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and shall supersede
all previous agreements between the parties, whether written or oral, with
respect to the subject matter hereof. This Agreement may not be
modified, altered, or amended except by a writing signed by each of the parties
hereto.
IN WITNESS WHEREOF, the
Company and the Employee have executed this Agreement as of the Effective
Date.
| HQHealthQuest Medical & | EMPLOYEE: | ||||
| Wellness Centers, Ltd., | |||||
| By: |
/s/
|
/s/
|
|||
|
▇▇▇▇▇▇▇▇
▇. Field
|
▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇ | ||||
|
Secretary
|
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||||
| ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
| ▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇ ▇▇▇▇ | |||||
| ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||||
10