ADMINISTRATIVE SERVICES AGREEMENT
THIS
ADMINISTRATIVE SERVICES AGREEMENT (the
"Agreement") is entered
into on this 1St
day of October,
2007, by and between American Surgical Holdings,
Inc., a Delaware corporation ("ASHI"), and North Point Consultants, Inc., a
Florida corporation ("North Point").
WITNESSETH:
WHEREAS,
ASHI, through its wholly-owned subsidiary, American Surgical
Assistants, Inc., provides hospitals with licensed and certified surgical
assistant services.
WHEREAS,
the principal owner of North Point, Xxxx Xxxxxxxx, (the "Owner")
has experience in serving as a Chief Financial Officer of publicly-held
corporations; and
WHEREAS,
ASHI desires to formally engage North Point to provide certain
accounting and administrative services to it.
NOW,
THEREFORE, for and in consideration of the mutual covenants and
agreements herein set forth, and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. RECITALS.
All of the above recitals are true and correct.
2. TERM.
This Agreement shall commence and become effective on October
1,
2007 (the "Effective Date") and shall continue until December 31, 2009.
Notwithstanding the foregoing, the Agreement may in any event be terminated
pursuant to Section 3 below.
3. TERMINATION.
This Agreement shall terminate prior to its natural expiration,
upon the first to occur of any of the following:
3.1
Breach. If a party is in any material respect in breach, default or
violation of any provision of this Agreement and fails to cure such material
breach, default or violation within 10 days after notice to do so ;
or
3.2
Bankruptcy. Upon notice by either ASHI or North Point to the other if
either ASHI or North Point is adjudicated as bankrupt or insolvent, files a
voluntary petition in bankruptcy or a petition or answer seeking a
reorganization, arrangement, composition, readjustment or other relief under
any
provision of any insolvency law, makes an assignment for the benefit of
creditors, or files a petition for or consents to the appointment of any
trustee, receiver or liquidator.
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3.3
For "Cause". By the Company, in the event of the Owner's death or
Disability (as hereinafter defined) or for Cause (as hereinafter defined).
For
purposes of this Agreement,
"Cause"
shall mean either: (i) the indictment of, or the bringing of formal charges
against, Owner by a governmental authority of competent jurisdiction for charges
involving criminal fraud or embezzlement; (ii) the conviction of Owner of a
crime involving an act or acts of dishonesty, fraud or moral turpitude by the
Owner, which act or acts constitute a felony; (iii) Owner having committed
acts
or omissions constituting gross negligence or willful misconduct with respect
to
the Company; (iv) Owner having committed acts or omissions constituting a
material breach of Owner's duty of loyalty or fiduciary duty to the Company
or
any material act of dishonesty or fraud with respect to the Company which are
not cured in a reasonable time, which time shall be 30 days from receipt of
written notice from the Company of such material breach; or (v) Owner having
committed acts or omissions constituting a material breach of this Agreement,
including any failure of the Owner to follow a directive from the Board of
Directors and/or its Audit Committee, which are not cured in a reasonable time,
which time shall be 30 days from receipt of written notice from the Company
of
such material breach. A determination that Cause exists as defined in clauses
(iii), (iv), or (v) (as to this Agreement) of the preceding sentence shall
be
made in good faith and by at least a majority of the members of the Board of
Directors.
For
purposes of this Agreement, "Disability" shall mean the inability of Owner,
in
the reasonable judgment of a physician appointed by the Board of Directors,
to
perform his duties of employment for the Company or any of its subsidiaries
because of any physical or mental disability or incapacity, where such
disability shall exist for an aggregate period of more than 120 days in any
365—day period or for any period of 90 consecutive days. The Company shall by
written notice to the Owner specify the event relied upon for termination
pursuant to this Section 3.3, and this Agreement shall be deemed terminated
as
of the date of such notice.
4. DESIGNATION.ASHI
hereby designates North Point as its exclusive agent to provide the services
set
forth in Section 6 of this Agreement.
5. INDEPENDENT
CONTRACTER,
5.1
North
Point shall act as an independent contractor and will hire employees who are
qualified to provide the services to be performed hereunder. Nothing in this
Agreement shall be construed to cause any of North Point's employees to be
construed as employees of ASHI.
5.2
ASHI
acknowledge that North Point makes its services available to other individuals
and companies and agrees that nothing in this Agreement shall be construed
as
limiting North Point's right to perform services for the benefit of persons
or
entities other than ASHI. It is not intended that employees of North Point
devote their full time to providing the services to ASHI but some employees
may
do so.
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5.3
As an
independent contractor North Point agrees to assume full responsibility and
pay
all federal and state social security taxes, employment taxes, witholding,
workmen's compensation and any other forms of taxes in connection with
compensation earned by North Point's employees while providing services to
ASHI.
6. RESPONSIBILITIES
OF NORTH POINT. North Point's responsibilities are as
follows:
6.1
North
Point is making its Owner available and will cause its Owner to act as the
ASHI
Chief Financial Officer and administer such activities in accordance with the
directives of the Chairman and CEO of ASHI, its Board of Directors and its
Audit
Committee. Although North Point shall determine the amount of time required
to
fulfill such services, the compensation payable under this Agreement to North
Point is based on North Point Is Owner spending no more than 80 hours
per month on ASHI matters, The Owner will make himself available at the Houston,
TX office of ASHI for up to four days per month. Should the Board of Directors
of ASHI delegate tasks to North Point or its Owner that require more than this
amount of time from North Point, North Point shall have the right to increase
the amount of compensation payable to it hereunder at the rate of $150 per
hour.
6.2
Owner
shall sign all documents of ASHI required to be signed by ASHI's Chief Financial
Officer, including ASHI's filings with the Securities and Exchange
Commission.
7. COMPENSATION
AND OTHER RESPONSIBILITIES OF ASHI.
7.1
Amount
Payable to North Point. North Point shall be compensated for the
Services identified in Sections 6.1 and 6.2 at the rate of $8,333 per month,
plus expenses, paid monthly, or as otherwise agreed to by the
parties.
7.2 Payment
Schedule. Compensation will be payable to North Point on
a
monthly basis in advance.
7.3
Expense.
ASHI shall reimburse North Point for its reasonable expenses actually
incurred in connection with the performance of its duties hereunder, subject
to
the prior approval of ASHI for expenses in excess of $100 and submission of
proper documentation of expenses.
7.4
Directors'
and Officers' Liability Insurance and Indemnification. During the
Term, ASHI shall maintain directors' and officers' liability insurance in such
coverage amounts and with such other coverage as shall be reasonably acceptable
to North Point and its Owner and shall cause North Point and its officers and
employees, including
its Owner, to be covered under the terms of such insurance to the extent
permitted by such insurance policies.
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In
addition, ASHI agrees to enter into an agreement with North Point and its
Owner
wherein ASHI shall indemnify and advance costs to North Point, its officers
and
employees (including its Owner) to the fullest extent permitted by applicable
law in connection with the services provided by North Point under this
Agreement. Such indemnification obligation and obligation to provide directors'
and officers' liability insurance shall survive the termination of this
Agreement for any reason.
7.5
ASHI
Financial Accounting Staff. ASHI shall hire and terminate its financial
accounting staff as may be recommended from time to time in the reasonable
judgment of North Point. In no event shall it be deemed reasonable for ASHI
to
have less than the current staffing level in its finance department. Such staff
shall report to North Point and its Owner.
7.6
Compliance with Laws and Directives of North Point. In its role as Chief
Financial Officer, North Point and it Owner will take steps and make
recommendations for changes in procedures to assist ASHI in complying with
laws
related to financial reporting, including aspects of the Sarbanes Oxley laws
that relate to financial accounting and the preparation of financial statements.
North Point shall make such recommendations to the Board of Directors and shall
report any deficiencies it identifies to the Board of Directors. With respect
to
any deficiencies identified by North Point, ASHI agrees to take prompt steps
to
correct such deficiencies in accordance with North Point's
recommendations.
8. Confidentiality
and Non-Competition
8.1
Nondisclosure
of Confidential Information. With respect to Confidential
Information, (the "Company Information"), North Point and its Owner: (i) shall
receive and hold all Company Information in trust and in strictest confidence,
and except as required by North Point and its Owner's duties in the course
of
his employment by the Company, will not, directly or indirectly, use,
disseminate or otherwise disclose any Company Information to any third party
without the prior written consent of the Company, which may be withheld by
the
Company in its absolute discretion; (ii) shall take reasonable steps to protect
Company Information from disclosure and will in no event take any action
causing, or fail to take any action reasonably necessary to prevent, any Company
Information to lose its character as Company Information; and (iii) shall not
use any Company Information to the detriment of the Company or for the benefit
of any other person or persons, or misuse in any way, any Company Information.
The terms of this section shall survive the termination of North Point and
its
Owner's employment.
The
provisions of this section shall not apply to information that is or shall
become generally known to the public (except by reason of North Point and its
Owner's breach
of
his obligations hereunder) and information that North Point and its Owner is
required to disclose by order of a court of competent jurisdiction (but only
to
the extent specifically ordered by such court).
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North
Point and its Owner agrees that in the event that he becomes aware, in any
manner, that he may be required by a court order to disclose any Company
Information, North Point and its Owner shall give the Company prompt and
sufficient written notice to enable it to assert an objection or seek a
protective order prior to such disclosure, and shall not object to or oppose
in
any manner any attempt by the Company to protect, or prevent the disclosure
of,
such information.
8.2
Non-Competition In Related Business. During the term of
this Agreement and for a period of one (1) year thereafter, North Point and
its
Owner agree that they shall not, either directly or indirectly, engage in,
or
become employed by, associated with, consult with or otherwise provide services
to, or through, any corporations, agents, partnerships, persons, or associates
in any business, enterprise or employment that competes with the Company in
the
business and other endeavors of the Company within the geographic areas that
the
Company engaged in business during the term of this Agreement.
8.3
Solicitation of Employees and Customers. During the term
of this Agreement and for a period of one (1) year thereafter, North Point
and
its Owner will not, whether for their own account or for the account of any
person or entity, attempt to solicit, endeavor to entice away from the Company
or its Affiliates, or otherwise interfere with any relationship of the Company
or its Affiliates with (i) any person (including, but not limited to, any
independent contractor or representative) who is or was employed by or otherwise
engaged to perform services for the Company or its Affiliates, while North
Point
and its Owner were employed by the Company, or (ii) any person who is or was
a
customer or client of the Company or its Affiliates while the North Point and
its Owner were employed by the Company.
9. NOTICES.
All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person or sent by overnight delivery, confirmed telefax or prepaid
first class registered or certified mail, return receipt requested, to the
following addresses, or such other addresses as are given to the other parties
to this Agreement in the manner set forth herein:
|
If
to ASHI:
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American
Surgical Holdings, Inc.
00000
Xxxxxxxxx Xxxxxx, Xxxxx #000
Xxxxxxx,
XX 00000-0000
Attn:
Chairman & Chief Executive Officer
713-779-9862
Telefax
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If
to North Point:
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North
Point Consultants, Inc
0000
XX 000xx Xxxxxx, Xxxxx #000 Xxxxx Xxxxx, XX
00000
Attn:
President
786.524.4643
Telefax
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Any
such
notices shall be effective when delivered in person or sent by telefax, one
business day after being sent by overnight delivery or three business days
after
being sent by registered or certified mail. Any of the foregoing addresses
may
be changed by giving notice of such change in the foregoing manner, except
that
notices for changes of address shall be effective only upon
receipt.
10. MISCELLANEOUS.
10.1
Further Assurances. At any time, and from time to time, each party will
execute such additional instruments and take such actions as may be reasonably
requested by the other party to carry out the intent and purposes of this
Agreement.
10.2
Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
negotiations, letters and understandings relating to the subject matter
hereof.
10.3
Amendment. This Agreement may not be amended, supplemented or modified in
whole or in part except by an instrument in writing signed by the party or
parties against whom enforcement of any such amendment, supplement or
modification is sought.
10.4
Binding Nature. This Agreement will be binding upon and will inure to the
benefit of any successor or successors of the parties hereto.
10.5
Counterpart. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original and all of which together will
constitute one and the same instrument.
10.6
Governing Law; Venue. This Agreement has been executed and delivered and
shall be construed, governed by, and enforced and interpreted in accordance
with, the laws of the State of Texas. Venue of any actions to enforce this
Agreement shall be in a court of competent jurisdiction in Xxxxxx County,
Texas.
10.7
Attorney's Fees and Costs. In the event of any action, dispute,
litigation or other proceeding, including appeals, with respect to this
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party all reasonable fees, costs, and expenses of counsel
incurred in connection with such action, dispute, litigation or other
proceeding, whether or not litigation is instituted, and if instituted, at
both
trial and appellate levels, in addition to any other relief to which the parties
may be entitled.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed by their duly authorized representatives on the date first above
written.
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AMERICAN
SURGICAL HOLDINGS, INC.
|
|
By: /s/ Xxx
X. Xxxxxxx
|
|
Name:
Xxx X. Xxxxxxx
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|
Title:
Chairman & Chief Executive Officer
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NORTH
POINT CONSULTANTS, INC.
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By: /s/ Xxxx
Xxxxxxxx
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Title:
President
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