Exhibit 10.2
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, and April 23,
1996;
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 April 15, 1996, the Company shall compensate Xxxxxx for the
services to be rendered by him hereunder at the rate of one hundred twelve
thousand five hundred dollars ($112,500) per year, payable in equal semi-
monthly installments on the first and fifteen day of each month, commencing on
May 1, 1996.
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3.2 From time to time the Company may pay cash bonuses (but not in excess
of 10 percent of the net income of the Company during the applicable fiscal
year of the Company determined in accordance with generally accepted accounting
principles) or grant stock options to its executive officers as determined by
the Board of Directors (or the Compensation Committee established by the Board
of Directors). 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.
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.
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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:
If to Xxxxxx: Xx. Xxxxx X. Xxxxxx
0000-X Xxxxxxxxx Xxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
If to the Company: Laboratory Specialists of America, Inc.
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0000-X Xxxxxxxxx Xxx
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 26th day of September, 1997, with an effective date
of the 15th day of April, 1996.
"Company" LABORATORY SPECIALISTS OF AMERICA, INC.
By:____________________________________________________
Xxxx Xxxxxxxxx, Chief Executive Officer
"Xxxxxx" __________________________________________________
Xxxxx X. Xxxxxx
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