EMPLOYMENT AGREEMENT
This Employment Agreement (the
"Agreement"), executed and effective May 11, 2010, by and between SPINE PAIN MANAGEMENT, INC., a
Delaware corporation (the "Company"), and XXXX X. XXXXXXX, an individual
("Employee").
W
I T N E S S E T H:
WHEREAS, Employee currently serves as
the Company’s Director of Operations;
WHEREAS, the Company and Employee
desire that (1) the Company appoint Employee as Chief Operating Officer of the
Company, (2) Employee contemporaneously resign as Director of Operations and (3)
the Company issue Employ 50,000 shares of restricted common stock as
consideration for his new employment;
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Employment. Company
hereby employs Employee and Employee hereby accepts employment with Company upon
the terms and conditions hereinafter set forth.
2. Duties. Subject to
the power of the Board of Directors of Company to elect and remove officers,
Employee will serve the Company as its Chief Operating Officer and
will faithfully and diligently perform the services and functions relating to
such office or otherwise reasonably incident to such office, provided that all
such services and functions will be reasonable and within Employee's area of
expertise. Employee will, during the term of this Agreement (or any
extension thereof), devote his time, attention and skills and best efforts to
the promotion of the business of Company. The foregoing will not be
construed as preventing Employee from being employed by or making investments in
other businesses or enterprises provided that (a) Employee agrees not to become
engaged in any other business activity that interferes with his ability to
discharge his duties and responsibilities to Company and (b) Employee does not
violate any other provision of this Agreement.
3. Term. Subject to
the terms and conditions hereof, the term of employment of Employee will end on
May 1, 2012, unless earlier terminated by either party pursuant to the terms
hereof. The term of this Agreement is referred to herein as the
"Term."
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4.
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Compensation and Benefits During the Employment Term.
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(a)
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Stock
Award. As consideration for his employment, the Company
will transfer to Employee 50,000 restricted shares of its common
stock.
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(b)
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Salary. At
such time as funds become available, the Board of Directors of the Company
may, in its sole discretion, approve the payment of an annual base salary
of $100,000.00 to Employee, after a review of Employee's performance of
his duties hereunder.
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(c)
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Bonus. The
Company will transfer to Employee 500,000 restricted shares of common
stock of the Company if Employee is employed by the Company under this
Agreement on June 30 of the calendar year in which the Company achieves an
annual fully diluted earning per share of at least $0.01 as reflected in
the audited financial statements filed with an annual report on Form 10-K
filed with the Securities and Exchange Commission. Further, at
the sole discretion of the Board of Directors of the Company, it may from
time to time grant other performance bonuses to
Employee.
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5. Confidentiality, Intellectual
Property and Non-Competition.
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(a)
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Confidentiality. In the
course of the performance of Employee's duties hereunder, Employee
recognizes and acknowledges that Employee may have access to certain
confidential and proprietary information of Company or any of its
affiliates. Without the prior written consent of Company,
Employee shall not disclose any such confidential or proprietary
information to any person or firm, corporation, association, or other
entity for any reason or purpose whatsoever, and shall not use such
information, directly or indirectly, for Employee's own behalf or on
behalf of any other party. Employee agrees and affirms that all
such information is the sole property of Company and that at the
termination and/or expiration of this Agreement, at Company's written
request, Employee shall promptly return to Company any and all such
information so requested by
Company.
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The provisions of this Section 5
shall not, however, prohibit Employee from disclosing to others or using in any
manner information that:
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(i)
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has
been published or has become part of the public domain other than by acts,
omissions or fault of Employee;
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(ii)
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has
been furnished or made known to Employee by third parties (other than
those acting directly or indirectly for or on behalf of Employee) as a
matter of legal right without restriction on its use or
disclosure;
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(iii)
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was
in the possession of Employee prior to obtaining such information from
Company in connection with the performance of this Agreement;
or
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(iv)
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is
required to be disclosed by
law.
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(b)
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Non-Competition. Employee
agrees that he will not, for himself, on behalf of, or in conjunction with
any person, firm, corporation or entity, either as principal, employee,
shareholder, member, director, partner, consultant, owner or part-owner of
any corporation, partnership or any other type of business entity,
directly or indirectly, own, manage, operate, control, be employed by,
participate in, or be connected in any manner with the ownership,
management, operation, or control of any business similar to or
competitive with the business presently conducted by the Company of
delivering turnkey solutions to spine surgeons and orthopedic surgeons for
necessary and appropriate treatment for musculo-skeletal spine injuries,
anywhere in the United States for a period of two years (the “Non-Compete
Period”) from the termination of this Agreement Notwithstanding
the foregoing, during the Non-Compete Period Employee may solicit,
contact, call upon and/or communicate with a client(s) of the Company with
a view to providing services competitive with the services sold, provided,
or under development by the Company, provided that Employee had an
established business relationship with such client(s) prior to the date of
his employment with the Company.
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Employee
agrees not to hire, solicit or attempt to solicit for employment by Employee or
any company to which he may be involved, either directly or indirectly, any
party who is an employee or independent contractor of the Company or any entity
which is affiliated with the Company, or any person who was an employee or
independent contractor of the Company or any entity which is affiliated with the
Company within the two year period immediately following the termination of this
Agreement.
Employee
acknowledges that he has carefully read and considered all provisions of this
Agreement and agrees that:
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(i)
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Due
to the nature of the Company's business, the foregoing covenants place no
greater restraint upon Employee than is reasonably necessary to protect
the business and goodwill of the
Company;
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(ii)
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These
covenants protect the legitimate interests of the Company and do not serve
solely to limit the Company's future competition;
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(iii)
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This Agreement is not an invalid or unreasonable restraint of trade; |
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(iv)
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A
breach of these covenants by Employee would cause irreparable damage to
the Company;
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(v)
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These
covenants are reasonable in scope and are reasonably necessary to protect
the Company's business and goodwill which the Company has established
through its own expense and effort; and
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(vi)
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The
signing of this Agreement is necessary as part of the consummation of the
transactions described in the
preamble.
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6. Indemnification. The
Corporation shall to the full extent permitted by law or as set forth in the
Certificate of Incorporation and the Bylaws of the Company, indemnify, defend
and hold harmless Employee from and against any and all claims, demands,
liabilities, damages, loses and expenses (including reasonable attorney's fees,
court costs and disbursements) arising out of the performance by him of his
duties hereunder except in the case of his willful misconduct.
7. Termination for
Cause. The Company may terminate this Agreement at any time
because of (i) Employee's material breach of any term of the Agreement, (ii) the
determination by the Board of Directors in the exercise of its reasonable
judgment that Employee has committed an act or acts constituting a felony or
other crime involving moral turpitude, dishonesty or theft or fraud; or (iii)
Employee's gross negligence in the performance of his duties hereunder,
provided, in each case, however, that the Company shall not terminate this
Agreement pursuant to this Section 7 unless the Company shall first have
delivered to the Employee, a notice which specifically
identifies such breach or misconduct and the Employee shall not have cured the
same within fifteen (15) days after receipt of such notice.
8. Waiver of
Breach. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
9. Costs. If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party will be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
he or it may be entitled.
10. Notices. Any
notices, consents, demands, requests, approvals and other communications to be
given under this Agreement by either party to the other will be deemed to have
been duly given if given in writing and personally delivered or within two days
if sent by mail, registered or certified, postage prepaid with return receipt
requested, as follows:
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If
to Company:
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0000
Xxxx Xxxxxxx, #000
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Xxxxxxx,
Xxxxx 00000
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Attention:
Xxxxxxx X. Xxxxxxx, M.D.
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If
to Employee:
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Xxxx
X. Xxxxxxx
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00
Xxxxxxx Xxxxx Xxxxx
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Xxx
Xxxxxxxxx, Xxxxx 00000
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Notices delivered personally will be
deemed communicated as of actual receipt.
11. Entire
Agreement. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
12. Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during this Agreement, such provision
will be fully severable and this Agreement will be construed and enforced as if
such illegal, invalid or unenforceable provision never comprised a part hereof;
and the remaining provisions hereof will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom. Furthermore, in lieu of such illegal, invalid
or unenforceable provision there will be added automatically as part of this
Agreement a provision as similar in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable.
13. Arbitration. If a
dispute should arise regarding this Agreement the parties agree that all claims,
disputes, controversies, differences or other matters in question arising out of
this relationship shall be settled finally, completely and conclusively by
arbitration in Houston, Texas in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (the "Rules"). The
governing law of this Agreement shall be the substantive law of the State of
Texas, without giving effect to conflict of laws. A decision of the
arbitrator shall be final, conclusive and binding on the Company and
Employee. Any arbitration held in accordance with this paragraph
shall be private and confidential and no person shall be entitled to attend the
hearings except the arbitrator, Employee, Employee's attorneys, a representative
of the Company, the Company's attorneys, and advisors to or witnesses for any
party. The matters submitted to arbitration, the hearings and proceedings and
the arbitration award shall be kept and maintained in the strictest confidence
by Employee and the Company and shall not be discussed, disclosed or
communicated to any persons except as may be required for the preparation of
expert testimony. On request of any party, the record of the
proceeding shall be sealed and may not be disclosed except insofar, and only
insofar, as may be necessary to enforce the award of the arbitrator and any
judgment enforcing an award. The prevailing party shall be entitled
to recover reasonable and necessary attorneys' fees and costs from the
non-prevailing party and the determination of such fees and costs and the award
thereof shall be included in the claims to be resolved by the arbitrator
hereunder.
14. Captions. The
captions in this Agreement are for convenience of reference only and will not
limit or otherwise affect any of the terms or provisions hereof.
15. Gender and
Number. When the context requires, the gender of all words
used herein will include the masculine, feminine and neuter and the number of
all words will include the singular and plural.
16. Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
[Remainder
of page intentionally left blank. Signature page
follows.]
IN WITNESS WHEREOF, the parties
hereto have duly executed this Agreement effective as of the day and year first
above written.
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COMPANY:
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| SPINE PAIN MANAGEMENT, INC. | ||
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By:
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/s/
Xxxxxxx X. Xxxxxxx,
M.D.
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Xxxxxxx
X. Xxxxxxx, M.D.,
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Chief
Executive Officer
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EMPLOYEE:
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By:
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/s/
Xxxx X.
Xxxxxxx
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Xxxx
X. Xxxxxxx
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