Exhibit 10.9
Employment Agreement Between
National Medical Financial Services Corporation
And
Xxxx Xxxxxxxx
THIS AGREEMENT is entered into effective the 1st day of September, 1997
(the "Effective Date") between National Medical Financial Services Corporation,
a Nevada Corporation ("National") and Xxxx Xxxxxxxx ("Xxxxxxxx") and shall
govern the terms and conditions of their relationship. National and Xxxxxxxx are
sometimes hereinafter referred to collectively as the "Parties".
R E C I T A L S
Whereas, National wishes to employ Xxxxxxxx as its President; and
Where as Xxxxxxxx desires to accept the position of President under the terms
and conditions hereinafter set forth; and
Whereas, the Parties wish to memorialize the terms and conditions of Xxxxxxxx'x
employment with National,
NOW THEREFORE, in consideration of the mutual covenants, promises and conditions
hereinafter set forth, the Parties agree as follows:
1. Duties and Responsibilities
National agrees that it shall employ Xxxxxxxx as the President of
National. In that role, Xxxxxxxx shall be responsible for direction of the
day-to-day operations of National and for overseeing the preparation of product
development and marketing strategies and the establishment, with the approval of
the Chairman of the Board, of overall corporate goals to further the success of
National. Specific projects and duties may be assigned to Xxxxxxxx by the
Chairman of the National Board of Directors, from time to time as appropriate.
Xxxxxxxx shall report directly to the Chairman of the National Board of
Directors. It is agreed that any specific projects or responsibilities assigned
to Xxxxxxxx shall be documented in writing within a reasonable period of time
after the assignment is given.
Xxxxxxxx recognizes and agrees that the only other entity to this
contract is National and that Xxxxxxx Xxxxxxx, M.D., individually, is not a
party, in any capacity, to this agreement. Any actions taken by Xxxxxxx X.
Xxxxxxx, M.D. in relation to Xxxxxxxx'x employment with National shall be
limited to Xxxxxxx'x role as a Director of National.
It is further agreed that Xxxxxxxx shall, subject to the approval of
the Board of Directors, have primary responsibility for the recruitment of
suitable personnel to fill the executive positions required by National.
2. Compensation
2.1 Base Salary
Xxxxxxxx shall receive a base salary during the term of this Agreement in
the amount of one hundred fifty thousand dollars ($150,000) (the "Base Salary")
per annum. The Base Salary shall be payable for
periods ending on the fifteenth (15th) and final day of each month and shall be
delivered on the seventh (7th) and twenty second (22nd) of each month.
2.2 Cash Performance Bonus
Xxxxxxxx shall be eligible for the award of a cash performance bonus at
the completion of the first fiscal quarter of 1998 (the "Cash Bonus") (such
first fiscal quarter of 1998 to begin January 1, 1998 and end March 31, 1998).
At the commencement of the 1998 fiscal year (which shall include the period
January 1, 1998 through December 31, 1998, inclusive), Xxxxxxxx, with the
approval of the Board of Directors, shall develop corporate revenue, profit,
unit sale and other appropriate goals for each quarter of the coming and
subsequent fiscal years (the "Goals"). All such Goals shall be documented in
writing and shall be approved by Chairman and the Board of Directors not later
than thirty (30) days after the commencement of the 1998 fiscal year and not
later than thirty (30) days before the commencement of every subsequent fiscal
year of the Term. The stated Goals shall be accompanied by an agreed projection
of resources necessary to achieve Goals (the "Agreed Resource Projection").
The amount of the Cash Bonus shall be in an amount equal to two percent
(2%) of the net before tax earnings of National during the 1998 fiscal year and
for every subsequent fiscal year of the Term, if Xxxxxxxx has achieved one
hundred percent (100%) of the Goals. All cash bonuses shall be calculated
quarterly and paid within thirty (30) days following the end of each quarter. In
the event Xxxxxxxx has achieved less than one hundred percent (100%) of the
Goals, but has achieved not less than seventy-five per cent (75%) of the Goals,
he shall be entitled to receive a prorated Cash Bonus equal to one percent (1%)
of net before tax earnings multiplied by the percentage of the Goals reached.
In the event that less than ninety percent (90%) of the resources set
forth in the Agreed Resources Projection are made available to Xxxxxxxx during
any year of the Term hereof, it is agreed that the Goals shall, for purposes of
this section 2.2 be automatically adjusted downward by the same percentage as
the percentage of resources made available during the course of any year of the
Term is adjusted downward. Example: If the Goal is $100,000 of sales but only
ninety percent (90%) of the Agreed Resources Projection is made available, there
will be no reduction in the Goal. If only eighty (80%) percent of the resources
are made available, the Goal would be reduced to $80,000.
Xxxxxxxx shall also have the option of converting the Cash Bonus to
fully vested options to purchase the shares of National at the closing price of
National common on the date the bonus is awarded. The Cash Bonus may be
converted on a formula which allows the purchase of three times the value of the
bonus when compared to the market price of the stock. Example: Cash Bonus amount
is $20,000. The Cash Bonus multiplied by 3 is thus $60,000. If the then current
stock price is $10 per share, Xxxxxxxx would have the option of accepting
options for the purchase of six thousand (6,000)shares at a purchase price of
$10 per share. Any such options shall be issued pursuant to the National Stock
Option Plan and shall be subject to all the terms and conditions thereof. No
cash payment shall be due Xxxxxxxx in the event options are chosen in lieu of
cash payment.
2.3 Stock Option Grants and Exercise Rights
2.3.1 Initial Option Grant
It is agreed that the Board of Directors of National shall authorize,
fully vested options to Xxxxxxxx to purchase one hundred thousand (100,000)
shares of the common shares of National pursuant to the National Stock Option
Plan. The option shall be exercisable for a period of five (5) years commencing
on the date of
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grant (each such period in sections 2.3.1 and 2.3.2 hereof are sometimes
referred to collectively as the "Exercise Period") at a purchase price equal to
the closing price of National common stock on November 11, 1997.
2.3.2 Additional Option Grants
Xxxxxxxx shall be entitled to a further grant of vested options, to be
granted in accordance with the National Stock Option Plan, to purchase common
equity of National upon achievement of goals as follows:
At conclusion of Fiscal Year
Percentage of Goal Achieved 1998 1999 2000
--------------------------- ---- ---- ----
Options on Options on Options on
75.0 % - 89.9% 100,000 shares 150,000 shares 200,000 shares
Options on Options on Options on
90.0 % - 99.9% 150,000 shares 225,000 shares 300,000 shares
Options on Options on Options on
100.0% 200,000 shares 300,000 shares 400,000 shares
Such options granted in accordance with this section 2.3.2 shall be granted at
an exercise price equal to the closing price of National common shares on the
last business day of the respective fiscal year.
2.3.3 Change in Control
In the event Xxxxxxxx ceases to be employed by National as a result of
change in control, Xxxxxxxx shall receive the same value for all of the shares
then actually vested as all other sellers of common shares receive.
2.4 Entity Acquisition Bonuses
Xxxxxxxx'x duties shall include seeking out entities which are
candidates for acquisition by National during the Term hereof. In the event
Xxxxxxxx identifies, coordinates, controls and completes the acquisition of any
entity during the Term hereof, National agrees that it shall pay to Xxxxxxxx a
cash bonus (the "Acquisition Bonus"), payable on the date the acquisition
closes, equal to one percent (1%) of the annual revenues of the acquired entity
in the year prior to the acquisition. The Acquisition Bonus shall be payable on
any acquisition which closes on or after September 1, 1997.
Any commissions, finders fees, etc. paid to any other individual or
entity based upon the closing of any acquisition will be offset against the
Acquisition Bonus calculated in accordance with the above, with the net, if any,
payable to Xxxxxxxx.
Xxxxxxxx shall also have the option of converting any and all
Acquisition Bonus payments due him to fully vested options to purchase the
common shares of National at the closing price of National common on the date
the bonus is awarded. The Acquisition Bonus may be converted on a formula which
allows the purchase of three times the value of the bonus when compared to the
market price of the stock. Example: Acquisition Bonus amount is $20,000. The
Acquisition Bonus multiplied by 3 is thus $60,000. If the then current stock
price
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is $10 per share, Xxxxxxxx would have the option of accepting options for the
purchase of six thousand (6,000) shares at a purchase price of $10 per share.
Any such options shall be issued pursuant to the National Stock Option Plan and
shall be subject to all the terms and conditions thereof.
2.5 Automobile Allowance
Xxxxxxxx shall receive an allowance equal to eight hundred dollars
($800) per month which may be applied to the lease or purchase of an automobile,
which automobile may be used by Xxxxxxxx for such purposes as he deems
appropriate. Such allowance is intended to compensate Xxxxxxxx for the costs of
acquisition, fuel, insurance and maintenance of such vehicle as he shall select
and shall be included in Xxxxxxxx'x base salary payments.
2.6 Business Expenses
Xxxxxxxx shall be compensated for all reasonable out-of-pocket expenses
incurred by him in the performance of his duties under this Agreement in
accordance with section 700, policy code No. 701, of the company employee
handbook, as shall be amended from time to time. A Company credit card shall be
issued to Xxxxxxxx for his use in connection with Company business.
2.7 Equipment to be Provided
National agrees that it shall absorb all reasonable expenses relating
to the acquisition of approved equipment, maintenance and services for said
equipment, to be used by Xxxxxxxx in the performance of his duties pursuant to
this Agreement. Approved equipment shall include a separate telephone line
installed in Xxxxxxxx'x home, a fax, a cellular phone of Xxxxxxxx'x choice, and
a Pentium II equipped color laptop computer equipped with sufficient RAM and
disk storage to permit operation with computer software programs of Xxxxxxxx'x
choosing, all software Xxxxxxxx may reasonably require, a 28.8 or higher modem
suitable for data transmission, and a printer, keyboard and monitor for home use
of the laptop computer.
2.8 Vacation and Miscellaneous Employee Benefits
Xxxxxxxx shall be entitled to four (4) weeks vacation each year, and
all other benefits as stated in the company employee handbook.
2.9 Legal Expenses
National agrees that it shall reimburse Xxxxxxxx for up to one thousand
dollars ($1,000) in legal fees incurred in the preparation and negotiation of
this Agreement upon presentation of an appropriate invoice from counsel for
Xxxxxxxx.
2.10 Participation on Boards of Directors
National agrees that Xxxxxxxx shall be permitted to serve as a member
of the Board of Directors of not more than three (3) other companies at any one
time during the Term hereof and that any compensation payable to Xxxxxxxx
arising from such participation shall be retained by Xxxxxxxx. No time shall be
charged against vacation or other authorized leave for reasonable time consumed
by any such Board activities.
3. Severance Provisions
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3.1 Change in Control Separation
In the event Xxxxxxxx is terminated by National as a result of a change
in control of National it is agreed that Xxxxxxxx shall receive a cash severance
payment equal to twelve (12) months Base Salary at the rate effective on the
termination date and a pro-rata payment of Cash Bonus amounts accrued to the
date of termination. All such severance amounts shall be paid to Xxxxxxxx as
normal payroll on the schedule set forth in Section 2 hereof.
3.2 Other Separation from Employment
In the event Xxxxxxxx ceases to be employed during the term hereof for
any reason other than a change in control as set forth in Section 3.1, then it
is agreed that Xxxxxxxx shall receive a cash severance payment equal to six (6)
months Base Salary at the rate effective on the termination date and a pro-rata
payment of Cash Bonus amounts earned to the date of termination. All such
severance payments shall be paid to Xxxxxxxx as normal payroll on the schedule
set forth in Section 2 hereof.
4. Term and Termination
4.1 Term
The term of this Agreement shall commence of the Effective Date and
shall remain in effect for a period of three (3) years, unless terminated sooner
in accordance with the provisions herein.
4.2 Termination
4.2.1 This Agreement may be terminated at any time by the mutual
consent of the parties. The Agreement may also be terminated by the Chairman of
the Board of National upon thirty days (30) written notice to Xxxxxxxx. In the
event of termination under this section 4.2.1., severance shall be paid in
accordance with Section 3.2 above.
4.2.2 This Agreement may be terminated by Xxxxxxxx at any time upon
thirty (30) days written notice provided, however, that no severance payments
shall be made to Xxxxxxxx pursuant to Section 3 hereof in the event of such a
voluntary termination and Xxxxxxxx shall be entitled to exercise only those
options to purchase common shares as are fully vested on the day notice of
termination is delivered
5. Miscellaneous
5.1 Governing Law; Arbitration
This Agreement shall be governed by and construed under the laws of the
Commonwealth of Pennsylvania, without reference to principles of conflict of
laws. Except as set forth in below, any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by binding
arbitration in State College, Pennsylvania by submission by either party, to a
mutually agreeable private judicial service or to a mutually agreed retired
judge of the Pennsylvania Superior Court. Judgement on an award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
In any arbitration proceeding, the parties shall be entitled to conduct
discovery in accordance with the Federal Rules of Civil Procedure, except that
the arbitrator shall have the authority to limit the nature and scope
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of discovery.
The parties agree that monetary damages would not in all cases be an
adequate remedy, and injunctive relief may be necessary to prevent irreparable
injury. Accordingly, either party may request injunctive relief, seizure orders,
writs of attachment, and other extraordinary remedies from a court of competent
jurisdiction. The parties stipulate and consent to jurisdiction of the person in
the courts sitting in the Commonwealth of Pennsylvania, for all actions. The
filing of a proceeding for injunctive relief shall not constitute a waiver by
the filing party of the right to compel arbitration pursuant to this Agreement
or of all demands for other relief.
5.2 Entire Agreement
This Agreement sets forth the entire agreement and understanding of the
Parties relating to the subject matter herein and merges and supersedes all
prior agreements, discussions and understandings between them. No modification
of or amendment to this Agreement, nor any waiver of any rights under this
Agreement, shall be effective unless in writing signed by the party to be
charged.
5.3 Waiver
No delay, omission, or failure to exercise any right or remedy provided
for in this Agreement shall be deemed to be a waiver thereof or an acquiescence
in the event giving rise to such remedy, but every such right or remedy may be
exercised, from time to time, as may be deemed expedient by the party exercising
such right or remedy.
5.4 Notices
Any notice required or permitted by the Agreement shall be in writing
and shall be sent by prepaid registered or certified mail, return receipt
requested, addressed to the other party at the addresses shown below or at such
other address for which such party gives notice hereunder. Such notice shall be
deemed to have been given three (3) days after deposit in the mail, or, if sent
by overnight service, on the next day following deposit except that notice of
change of address shall be effective only upon receipt.
If to Xxxxxxxx:
Xxxx Xxxxxxxx
000 Xxxxxx Xxxx Xxxx
Xxxx, XX 00000
If to National:
National Medical Financial Services Corporation
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
With copy to:
Xxxxx X Xxxxxxx and Associates
X.X. Xxx 000
0
Xxxxxxx, XX 00000
5.5 Force Majeure
Non performance of either party, except for the making of payments,
shall be excused to the extent that performance is rendered impossible by
strike, fire, flood, governmental acts or orders or restrictions, failure of
suppliers, or any other reason where failure to perform is beyond the control
and not caused by the negligence of the non-performing party.
5.6 Counterparts
This Agreement may be executed in one or more counterparts which, when
read together, shall constitute a single original Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement
effective on the date hereinabove set forth.
"NATIONAL" "XXXXXXXX"
National Medical Financial Services Corporation
By:
---------------------------------------- ----------------------------
Xxxx Xxxxxxxx
Title:
-------------------------------------
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M E M O R A N D U M
TO: Xxxx Xxxxxxxx
FROM: Xxxx Xxxx
SUBJECT: Employment Agreement
DATE: November 25, 1997
Unfortunately, several "clean-up" issues have come up with respect to your
employment agreement that needs your agreement and acknowledgement. I don't see
anything negative to you in the following, and if you agree, please initial
below and fax back to be.
Issues #1
Effective Date
The contract shows an effective date of September 1, 1997 although
actually not signed till November.
I believe our understanding is that the September 1, 1997 date
essentially starts the 3 year period of the contract - i.e., expiration
August 31, 2000.
For salary purposes, the increase to the base salary per the contract
was covered by including a retroactive payment for the difference in
the contract from your salary under your previous employer (Astute
Systems) from September 1 to October 31. 1997.
Also since November 14, 1997 was the due date for the Company's 10Q SEC
filing, we are considering November 17, 1997 as the execution date for
reporting purposes. (This will mean the contract must be reported as a
4th quarter transaction).
This will cause a change in the pricing of the options per sections
2.3.1. Rather than pricing as of class of November 11, 1997 (23/32),
they will be priced as of the average of the high and low of November
17, 1997 (11/16 & 19/32), giving a pricing of 41/64.
Issue #2
Option Pricing
It has been pointed out that the option plan document calls for pricing
to be based on the average of the high and low on date of award rather
than closing price. As a result, section 2.3.2 options awards will be
based on the plan formula, not closing price.
Sorry for any inconveniences. As stated above, please acknowledge above as
correct by initialing below, assuring you are in agreement.
Acknowledged & Agreed
-------------------------------------------
Xxxx Xxxxxxxx
