EMPLOYMENT AGREEMENT
(Amended and Restated)
THIS EMPLOYMENT AGREEMENT (this "Agreement"), shall be effective the
15th day of April, 1994, by and between Laboratory Specialists of America,
Inc. (the "Company"), an Oklahoma corporation, and Xxxxx X. Xxxxxx, an
individual ("Xxxxxx").
WHEREAS, the parties hereto entered into this Employment Agreement on
April 15, 1994, which was amended and restated on September 9, 1994, April
23, 1996 and September 26, 1997;
WHEREAS, the parties have determined that it is in the best interest of
the Company that this Agreement be further amended to extend the term of this
Agreement, effective as of April 15, 1996;
NOW, THEREFORE, for and in consideration of the conditions hereinbelow
to be performed on the part of the respective parties hereto, and in
consideration of the mutuality thereof, the parties hereto agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby agrees to employ Xxxxxx, and
Xxxxxx hereby agrees to serve the Company, during the period beginning on
April 15, 1996, and ending on April 15, 2000 (the "Employment Period"), or on
such earlier date as provided in Sections 4 and 5 hereof; provided, however,
that the Period of Employment shall be extended an additional one year period
to next April 15 immediately following the end of each full year of
employment with the Company that Xxxxxx completes pursuant to and accordance
with this Agreement.
2. DUTIES. Substantially all of the duties and responsibilities of
Xxxxxx, subject to such travel as the duties of Xxxxxx hereunder may
reasonably require, shall be performed by Xxxxxx at and from the corporate
offices of the Company in Oklahoma City, Oklahoma.
2.1 During the Employment Period, Xxxxxx shall devote such time,
attention, skill, energy and best efforts to the duties assigned to him
from time to time by management and/or the Board of Directors of the
Company, and shall, but without obligation hereunder, serve the Company in
the executive officer positions to which he may be elected or appointed by
the Board of Directors of the Company, subject to acceptance by Xxxxxx of
such executive officer position or positions. Notwithstanding the
foregoing, Xxxxxx shall be required to devote not less than 50 percent of
his full business time, attention, skill, energy and efforts to the
performance of his duties hereunder; provided, however, that Xxxxxx may
engage in any other employment or pursuit of other endeavors which does not
conflict with his ability to perform his duties to the business interests
of the Company, provided that such other employment or pursuit of other
endeavors does not violate the duty of loyalty and care which Xxxxxx has to
the Company by reason of this Agreement or in his capacity as an executive
officer of the Company.
2.2 As an employee of the Company, Xxxxxx shall be subject to the
overall supervision and instructions of management of the Company and, if
applicable, that are associated with the executive officer position or
positions held by Xxxxxx which shall be subject to the overall supervision
and instructions of the Board of Directors to the Company.
3. COMPENSATION AND OTHER BENEFITS. During the Employment Period, the
Company shall pay or provide to Xxxxxx and Xxxxxx shall be entitled to
receive or have maintained for his benefit, the following:
3.1 Effective July 1, 1998, the Company shall compensate Xxxxxx for
the services to be rendered by him thereunder at the rate of one hundred
fifty-two thousand five hundred dollars ($152,500) per year, payable in
equal semi-monthly installments on the first and fifteen day of each month,
commencing on July 15, 1998.
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3.2 In addition to the compensation payable to Xxxxxx pursuant to
Section 3.1 hereof, within 90 days following the end of each fiscal year of
Laboratory Specialists of America, Inc. ending during the Employment
Period, the Company shall pay Xxxxxx a bonus equal to one percent of the
net income from continuing operations of Laboratory Specialists, Inc.
before provision for income taxes determined in accordance with generally
accepted accounting principles as reflected on the audited financial
statements of Laboratory Specialists of America, Inc. for the immediately
preceding fiscal year. The bonus payable pursuant to this Section 3.2
shall be deemed earned by Xxxxxxxxx as of the end of each such fiscal year
of Laboratory Specialists of America, Inc. for all intents and purposes,
including for federal income tax purposes, notwithstanding termination of
the employment of Xxxxxx on or after the end of such fiscal year of
Laboratory Specialists of America, Inc. To the extent that bonuses or
stock options are paid or granted by the Board of Directors to its
executive officers, Xxxxxx shall be deemed to be a member of the bonus
group or group to which stock options are granted, and his bonus or stock
option grants shall be determined in the same manner as are the bonuses or
stock option grants of other executives in the group.
3.3 Xxxxxx is hereby authorized to incur reasonable expenses for the
promotion of the Company's business, including entertainment, travel and
similar expenses, and he shall be reimbursed therefore by the Company upon
his presentation of itemized accounts of such expenditures.
3.4 The Company shall provide to Xxxxxx health and disability
insurance benefits comparable to those provided to the executive officers
of the Company either as a group or individually.
3.5 Xxxxxx shall be entitled to reasonable periods of vacation with
pay in each year, and reasonable periods of sick leave with pay
commensurate with his position, in accordance with Company policy as
established by the Board of Directors.
3.6 The Company shall provide to Xxxxxx and maintain insurance, at
the Company's cost and expense, covering the life of Xxxxxx in the face
amount of five hundred thousand dollars ($500,000), the proceeds of which
shall be payable to such beneficiary that Xxxxxx shall designate or in the
event of failure to designate a named beneficiary shall be payable to the
estate of Xxxxxx.
3.7 The Company shall pay to Xxxxxx an automobile allowance of five
hundred dollars ($500) per month, payable on the fifteen day of each month
while employed pursuant to this Agreement, and shall provide at the sole
cost and expense of the Company a mobile phone to assist Xxxxxx in the
performance of his duties and responsibilities as an employee and, if
applicable, executive officer of the Company.
4. DISABILITY OR DEATH.
4.1 In the event the Board of Directors of the Company determines in
good faith that Xxxxxx is unable, because of physical or mental illness or
disability, to render services of the character contemplated hereby and
that such disability reasonably may be expected to be permanent or to
continue for a period of at least six (6) consecutive months (or for
shorter periods totaling more than six (6) months during any period of
eighteen (18) consecutive months), in such event the Board of Directors of
the Company may elect to terminate the employment of Xxxxxx hereunder upon
written notice by the Company to Xxxxxx effective on the next first or
fifteenth day of the month following the date of such notice. At any time
and upon reasonable request therefor by the Company, Xxxxxx shall submit to
medical examination by a physician designated by the Company in Oklahoma
City, Oklahoma, for the purpose of determining the existence, nature and
extent of any such disability. In the event the Board of Directors elects
to terminate the employment of Xxxxxx pursuant to this Section 4.1, Xxxxxx
shall be entitled to receive any amount of compensation determined pursuant
to Section 3.1 up to the date of the termination of the employment of
Xxxxxx payable on the dates established pursuant to Section 3.1.
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4.2 In the event Xxxxxx shall die during the Employment Period, this
Agreement shall terminate effective on the next first or fifteenth day of
the month following the date of death, and the Company shall pay to the
spouse of Xxxxxx, or if unmarried at the time of his death, to the estate
of Xxxxxx, the compensation payable to Xxxxxx pursuant to Section 3.1 for a
period of three (3) months following the effective date of termination of
this Agreement pursuant to this Section 4.2, payable on the dates provided
for such compensation payment thereunder.
4.3 In the event of termination of this Agreement pursuant to Section
4.1 and/or Section 4.2 of this Agreement, Xxxxxx (or his spouse or if
unmarried on the date of his death his estate) shall be entitled to receive
accrued and unpaid expense reimbursements, automobile allowance and any
unpaid bonus amounts awarded to Xxxxxx prior to such termination and stock
option grants awarded to Xxxxxx prior to such termination exercisable in
accordance with the terms of such stock option grants.
5. TERMINATION FOR CAUSE. In the event the Board of Directors of the
Company determines in good faith that Xxxxxx is guilty of gross negligence or
fraud materially injurious to the Company, the Company may terminate this
Agreement, and all obligations hereunder shall thereupon terminate.
6. NON-COMPETITION. During the Employment Period, or, if longer, the
period of employment of Xxxxxx by the Company, Xxxxxx will not engage in
competition with the Company, either directly or indirectly, in any manner or
capacity as an employee or executive officer of a competitor company in any
phase of the business carried on by the Company at any time.
7. CONFIDENTIALITY. During the Employment Period, or, if longer, the
period of employment of Xxxxxx by the Company, and for a period of three (3)
years thereafter, Xxxxxx will not divulge to anyone, other than the Company
or persons designated by the Company in writing, any confidential material
information directly or indirectly useful in any aspect of the business of
the Company or any of its subsidiaries, as conducted from time to time, as to
which Xxxxxx is now, or at any time during employment shall become, informed
and which is not then generally known to the public or recognized as standard
practice.
8. CERTAIN PROVISIONS TO SURVIVE TERMINATION; ETC. Notwithstanding any
termination of his employment under this Agreement, Xxxxxx, in consideration
of his employment hereunder to the date of such termination, shall remain
bound by the provisions of Section 6 and 7, and consequently, in addition to
all other remedies that may be available to it, the Company shall be entitled
to injunctive relief for any actual or threatened violation of such Sections.
9. NON-ASSIGNABILITY. Neither party hereto shall have the right to
assign this Agreement or any rights or obligations hereunder without the
written consent of the other party.
10. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the Rules of the American Arbitration Association and
judgment upon the award rendered by the arbitrator or arbitrators may be
entered in any court having jurisdiction thereof. The arbitration
proceedings shall be conducted in Oklahoma City, Oklahoma unless otherwise
agreed by the parties hereto. The arbitrator or arbitrators shall be deemed
to possess the powers to issue mandatory orders and restraining orders in
connection with such arbitration; provided, however, that nothing in this
Section 10 shall be construed so as to deny the Company the right and power
to seek and obtain injunctive relief in a court of equity for any breach or
threatened breach by Xxxxxx of any of his covenants contained in Sections 6
and 7 hereof.
11. NOTICE. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to have been given forty-eight (48)
hours after depositing in the United States mail, certified mail, postage
prepaid, addressed to the party to receive such notice at the address set
forth hereinbelow or such other address as either party may give to the other
in writing pursuant to written notice pursuant to this Section:
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If to Xxxxxx: Xx. Xxxxx X. Xxxxxx
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
If to the Company: Laboratory Specialists of America, Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
12. GENERAL. The terms and provisions herein contained (i) constitute the
entire Agreement between the Company and Xxxxxx with respect to the subject
matter hereof, (ii) may be amended or modified only by a written instrument
executed by the parties hereto, and (iii) shall be construed and enforced in
accordance with the laws in effect in the State of Oklahoma without regard to
its conflicts of law provisions. Failure by a party hereto to require
performance of any provision of this Agreement shall not affect, impair or waive
such party's right to require full performance at any time thereafter.
It is acknowledged that the furniture, equipment and artwork in the
corporate offices of the Company in Oklahoma City, Oklahoma are the property of
Xxxx Xxxxxxxxx and Xxxxxx.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement,
as amended and restated, on the 16th day of July, 1998, with an effective date
of the 1st day of July, 1998.
"Company" LABORATORY SPECIALISTS OF AMERICA, INC.
By:
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Xxxx Xxxxxxxxx, Chief Executive Officer
"Xxxxxx"
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Xxxxx X. Xxxxxx
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