EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement"), dated May 13, 2005, to be effective
February 1, 2005 (the "Effective Date"), is being entered into by and between
National Health Partners, Inc., an Indiana corporation with its principal place
of business at 000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000 (the "Company"),
and Xxxxx X. Xxxxxxx (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to secure the employment of the Employee
as the Chief Executive Officer of the Company in accordance with the provisions
of this Agreement; and
WHEREAS, the Employee desires and is willing to be so employed by the
Company.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Employment Term. This Agreement shall remain in force and effect for
a term commencing on the Effective Date hereof and expiring on the fifth (5th)
anniversary hereof (the "Initial Term"), or until the employment relationship is
terminated pursuant to Section 4 hereof. Upon the expiration of the Initial
Term, this Agreement will be renewed automatically for successive one-year
periods (each, a "Renewal Term"), unless sooner terminated in accordance with
the provisions of Section 4 or unless the Company or the Employee gives written
notice of non-renewal ("Non-Renewal Notice") to the other at least three (3)
months prior to the date on which the Employee's employment would otherwise end.
2. Duties; Exclusive Services and Best Efforts.
(a) Duties. Employee shall hold the position of Chief
Executive Officer and shall have such responsibilities, duties and authority
consistent with such position as may from time to time be determined by the
Company's board of directors, including those set forth in Exhibit A attached
hereto.
(b) Dedicated Services and Best Efforts. The Employee agrees
to devote his best efforts, energies and skill to the faithful, competent and
diligent discharge of the duties and responsibilities attributable to his
position and to this end, will devote his fulltime attention to the business and
affairs of the Company. The Employee also agrees that he shall not take personal
advantage of any business opportunities directly relevant to the present
business and products of the Company that arise during his employment that may
benefit the Company. All material facts regarding such opportunities must be
promptly reported to the Company's board of directors for its consideration. In
addition, the Company acknowledges and agrees that the Employee shall be
permitted to engage in and pursue such contemporaneous activities and interests
as the Employee may desire, for personal profit or otherwise, provided such
activities do not interfere with the Employee's performance of his duties and
obligations hereunder.
3. Compensation. On and after the commencement of Employee's
employment, the Employee shall receive, for all services rendered to the Company
hereunder, the following:
(a) Base Salary. Beginning on the Effective Date, the Employee
shall be entitled to an annual base salary equal to $231,000. The Employee's
annual base salary shall be payable in equal installments in accordance with the
Company's general salary payment policies but no less frequently than monthly.
On January 1 of each year remaining of the Initial Term, Employee's salary shall
be increased by the greater of: (i) 10%, (ii) the Consumer Price Index for all
items for the 12-months ended December 31st of the immediately preceding year,
or (iii) such amount as shall be determined by the board of directors in its
sole discretion.
(b) Annual Bonus. In addition to base salary, the Employee
shall receive an annual bonus ("Annual Bonus") in such amount as shall be
determined by the board of directors in its sole discretion. The Annual Bonus,
if any, shall be paid by the Company to the Employee within 10 business days of
the date the Company's Annual Report on Form 10-K or Form 10-KSB, as the case
may be, for the fiscal year to which the Annual Bonus relates is filed with the
United States Securities and Exchange Commission ("SEC"), or, if the Company is
not subject to the SEC reporting requirements, within 10 business days of the
delivery to the Company of the Company's audited financial statements for the
fiscal year to which the Annual Bonus relates by the Company's independent
accountant.
(c) Incentive Compensation. The Employee will be eligible for
awards from the Company's incentive compensation plans, including without
limitation, any stock incentive plans applicable to high level executives of the
Company, in accordance with the terms thereof and on a basis commensurate with
his position and responsibilities. Any such compensation shall be determined by
the Company in its sole discretion. Nothing herein shall effect any rights or
obligations of the Employee or the Company created pursuant to any stock option
plan or stock option agreement between the parties hereto.
(d) Stock Option. Upon execution of this Agreement, the
Company shall deliver to the Employee an option to acquire 2,500,000 shares of
the Company's common stock, $0.001 par value per share (the "Common Stock"), in
the form attached hereto as Exhibit B.
(e) Benefits Plans. The Employee shall be eligible to
participate in any and all employee welfare and health benefit plans, including,
but not limited to: (i) health, (ii) medical, (iii) dental, (iv) alternative
care, (v) chiropractic, and (vi) mental health plans; and other employee benefit
plans, including, but not limited to, life insurance and qualified pension plans
that may be established by the Company from time to time for the benefit of
other Company employees of comparable status. To the extent the Company does not
make available to Employee participation in any of the plans described in items
(i) through (vi) above, the Company shall reimburse Employee for all
out-of-pocket expenses reasonably incurred by Employee in connection with
obtaining the services customarily available under such plans. In addition, the
Company will provide Employee with the maximum allowable level of disability
insurance, such amount to be not less than 65% of the Employee's annual salary.
The Company will also acquire a universal life insurance policy in the amount of
$1,000,000 for the benefit of Employee and his designated beneficiary. If the
Company is unable to obtain the policy, the Company shall pay to the Employee a
post-tax amount equal to the cost of the premium for which Employee would be
obligated to pay were the Employee to obtain such a policy himself. The Employee
shall be required to comply with the conditions attendant to coverage by such
preceding plans and policies and shall comply with and be eligible for benefits
only in accordance with the terms and conditions of such plans as they may be
amended from time to time.
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(f) Vacation. The Employee shall be eligible for six (6) weeks
of paid vacation each year of his employment hereunder. The Employee shall be
permitted to carry over and accrue unused vacation time for a period of up to
two (2) years. Except as required by applicable law, in no event shall the
Employee be entitled to receive any cash compensation in lieu of unused vacation
time.
(g) Expenses. Subject to and in accordance with the Company's
policies and procedures and, upon presentation of itemized accounts, the
Employee shall be reimbursed by the Company for reasonable and necessary
business-related expenses incurred by the Employee on behalf of the Company.
(h) Deductions from Salary and Benefits. The Company will
withhold from any salary or benefits payable to the Employee all federal, state,
local, and other taxes and other amounts as required by law, rule or regulation.
4. Termination. This Agreement may be terminated by either the Employee
or the Company at any time, subject only to the provisions of this Section 4.
(a) Voluntary Termination. If Employee terminates his own
employment, the Company shall be released from any and all further obligations
under this Agreement, except that the Company shall be obligated to pay Employee
all salary, benefits, stock, bonuses, reimbursable expenses and all other
compensation owing to Employee through the effective date of termination.
Employee shall also be entitled to any benefits and reimbursement owed in
accordance with Sections 3(e) & (g). Employee's obligations under Sections 5, 7
and 8 hereof shall survive the termination of Employee's employment, and
Employee shall remain bound thereby. In the case of voluntary termination,
Employee shall be given the option of assuming the disability and health
insurance with no lapse in coverage.
(b) Death. This Agreement shall terminate on the date of the
Employee's death, in which event all salary, benefits, stock, bonuses,
reimbursable expenses and all other compensation owing to the Employee through
the date of the Employee's death shall be paid to his estate.
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(c) Disability. If, during the term of this Agreement, in the
reasonable opinion of at least three (3) licensed medical specialists who
specialize in the diagnosed form of disability, the Employee, because of
physical or mental illness or incapacity or disability, shall become unable to
perform, with reasonable accommodation, substantially all of the duties and
services required of him under this Agreement for a period of 180 days during
any 12-month period, the Company may, upon at least 10 days prior written notice
given at any time after the expiration of such 180-day period, notify the
Employee of its intention to terminate this Agreement as of the date set forth
in the notice. In the event a determination is made that such a disability
exists and the Employee disagrees with the determination, Employee may request a
review of the determination by independent licensed medical specialists, the
reasonable costs of which shall be paid by the Company. If the licensed medical
specialists are unable to reach a consensus that a such a disability exists,
then the Company and the Employee shall settle the dispute in accordance with
the provisions of Section 10 hereof. In the event of the Employee's termination,
the Employee shall be entitled to receive all salary, benefits, stock, bonuses,
reimbursable expenses and all other compensation owing to the Employee through
the date of termination. The Company shall have no further obligation or
liability to the Employee. The Employee's obligations under Sections 5, 7 and 8
hereof shall survive the termination of Employee's employment, and Employee
shall remain bound thereby.
(d) Termination by Employer for Cause. This Agreement may be
terminated by the Company for "Cause" at any time. Upon such termination for
"Cause", the Company shall be released from any and all further obligations
under this Agreement, except that the Company shall be obligated to pay the
Employee all salary, benefits, stock, bonuses, reimbursable expenses and all
other compensation owing to the Employee through the effective date of such
termination. The Employee shall also be entitled to any benefits and
reimbursement owed in accordance with Sections 3(e) & (g). The Employee's
obligations under Sections 5, 7 and 8 hereof shall survive the termination of
Employee's employment, and Employee shall remain bound thereby.
Termination for "Cause" shall mean and be limited to the
following conduct of the Employee:
(i) Breach of any material provision of this
Employment Agreement by the Employee if not reasonably cured within two (2)
weeks after receiving written notice thereof;
(ii) Intentional misconduct as an employee of the
Company, including but not limited to, any intentional misappropriation of funds
or property of the Company, any intentional attempt to obtain any personal
profit from any transaction in which the Employee has an interest that is
materially adverse to the Company, any intentional breach of the duty of care or
loyalty owed by the Employee to the Company, or any other intentional act or
intentional omission of the Employee that substantially impairs the Company's
ability to conduct its ordinary business in its usual manner;
(iii) Material neglect or refusal to perform the
duties set forth in Section 2(a) of this Agreement if not reasonably cured
within two (2) weeks after receiving notice thereof;
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(iv) Conviction of a felony or plea of guilty or nolo
contendere to a felony;
(v) Intentional acts of dishonesty by the Employee
having a material adverse effect on the Company, including any intentional act
or intentional omission that subjects the Company to public scandal or ridicule,
or that causes the Company to be sanctioned by a governmental authority as a
result of a violation of governmental regulations; and
(vi) Intentional disclosure or use of material
confidential information of the Company, other than as specifically authorized
and required in the performance of the Employee's duties, having a material
adverse effect on the Company.
(e) Termination by Employer Without Cause. Upon termination of
this Agreement without Cause: (i) the Company shall be released from any and all
further obligations under this Agreement, and (ii) the Company shall pay to the
Employee the full annual base salary that would otherwise have been paid to the
Employee during the remainder of the Initial Term, (iii) the Employee shall be
immediately entitled to two (2) years' annual base salary, calculated at the
highest annual base salary rate as determined in accordance with Section 3(a) of
this Agreement, and (iv) the Employee shall be immediately entitled to all
benefits, stock, bonuses, reimburseable expenses and all other compensation to
which Employee would have been entitled had the Employee been employed by the
Company during the remainder of the Initial Term.
(f) Termination by the Employee for Good Reason. Upon
termination of this Agreement for Good Reason: (i) the Company shall be released
from any and all further obligations under this Agreement, (ii) the Company
shall pay to the Employee the full annual base salary that would otherwise have
been paid to the Employee during the remainder of the Initial Term, (iii) the
Employee shall be immediately entitled to two (2) years' annual base salary,
calculated at the highest annual base salary rate as determined in accordance
with Section 3(a) of this Agreement, and (iv) the Employee shall be immediately
entitled to all benefits, stock, bonuses, reimburseable expenses and all other
compensation to which Employee would have been entitled had the Employee been
employed by the Company during the remainder of the Initial Term. Termination
for "Good Reason" shall mean, without the express written consent of the
Employee, the occurrence of any of the following events:
(i) assignment to the Employee of any duties
inconsistent in any material respect with the Employee's position (including
titles and reporting relationships), authority, duties or responsibilities as
set forth in Section 2(a), or any other action by the Company that results in a
significant diminution in such position, authority, duties or responsibilities;
(ii) any failure by the Company to comply with any of
the material provisions of this Agreement;
(iii) the delivery to the Employee by the Company of
a Non-Renewal Notice pursuant to Section 1 hereof; or
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(iv) any "Change in Control."
"Change in Control" shall mean the first to occur of any of the following
events:
(a) any "person" (as defined in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), excluding for
this purpose: (i) the Company or any subsidiary of the Company, or (ii) any
employee benefit plan of the Company or any subsidiary of the Company, or any
person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan that acquires beneficial ownership of
voting securities of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly of
securities of the Company representing more than 30% of the combined voting
power of the Company's then outstanding securities; provided, however, that no
Change in Control will be deemed to have occurred as a result of a change in
ownership percentage resulting solely from an acquisition of securities by the
Company;
(b) persons who, as of the Effective Date, constitute the
board of directors (the "Incumbent Directors") cease for any reason, including
without limitation, as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority thereof, provided that
any person becoming a director of the Company subsequent to the Effective Date
shall be considered an Incumbent Director if such person's election or
nomination for election was approved by a vote of at least 50% of the Incumbent
Directors; but provided further, that any such person whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of members of the board of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a "person" (as
defined in Section 13(d) and 14(d) of the Exchange Act) other than the board of
directors, including by reason of agreement intended to avoid or settle any such
actual or threatened contest or solicitation, shall not be considered an
Incumbent Director;
(c) consummation of a reorganization, merger or consolidation,
or sale or other disposition of at least 80% of the assets of the Company; or
(d) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
5. Non-Competition and Business Opportunities.
(a) Non-Competition. The Employee agrees that during the
period of his employment hereunder and for a period of one (1) year thereafter,
the Employee will not directly or indirectly: (i) market, sell or perform
services such as are offered or conducted by the Company, its affiliates and
subsidiaries during the period of his employment, to any customer or client of
the Company, or "Prospective Customer" or client of the Company; or (ii) engage,
directly or indirectly, whether as principal or as agent, officer, director,
employee, consultant, shareholder, or otherwise, alone or in association with
any other person, corporation or other entity, in any "Competing Business". For
the purpose of this Section 5(a) "Prospective Customer" shall mean any person
with whom the Company during the 12 months preceding the date of the Employee's
termination of employment hereunder has entered into formal negotiations for a
contract and/or has indicated in any written documentation an intent to do
business with the Company. For purposes of this Section 5(a), the term
"shareholder" shall exclude Employee to the extent the Employee owns less than
ten percent (10%) of any public company's outstanding Common Stock. For the
further purposes of this Agreement, the term "Competing Business" shall mean all
activities and services similar to those conducted or provided by the Company in
connection with the Company's CARExpress Health Savings Network. Due to the
nature of the markets served and the products and services to be developed and
marketed by the Company that are intended to be available on a national basis,
the restrictions set forth in this Section 5(a) cannot be limited to a specific
geographic area within the United States.
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(b) Business Opportunities. The Employee agrees that during
the period of his employment hereunder, the Employee will not take personal
advantage of any business opportunities that are similar or substantially
similar to the present business of the Company. In addition, all material facts
regarding any such business opportunities must be promptly and fully disclosed
by the Employee to the board of directors as soon as the Employee becomes aware
of any opportunity, and in no event later than forty-eight (48) hours after
learning of such opportunity. Business opportunities covered by this Section
5(b) shall include, but are not limited to, opportunities directly relating to
any activities or services similar to those conducted or provided by the Company
in connection with the Company's CARExpress Health Savings Network.
(c) Non-Solicitation. The Employee agrees that during the
period of employment hereunder and for a period of one (1) year thereafter, the
Employee will not request or otherwise attempt to induce or influence, directly
or indirectly, any present customer, distributor or supplier, or Prospective
Customer, distributor or supplier, of the Company, or other persons sharing a
business relationship with the Company to cancel, to limit or postpone their
business with the Company, or otherwise take action that might be to the
material disadvantage of the Company. The Employee agrees that during the period
of employment hereunder and for a period of one (1) year thereafter, Employee
will not hire or solicit for employment, directly or indirectly, or induce or
actively attempt to influence, hire or solicit, any employee, agent, officer,
director, contractor, consultant or other business associate of the Company to
terminate his or her employment or discontinue such person's consultant,
contractor or other business association with the Company.
(d) Nondisparagement. Each of the Employee and the Company
(for purposes hereof, the Company shall mean only the executive officers and
directors thereof and not any other employees) agrees not to make any public
statements that disparage the other party, or in the case of the Company, its
respective affiliates, employees, officers, directors, products or services.
Notwithstanding the foregoing, statements made in the course of sworn testimony
in administrative, judicial or arbitral proceedings (including, without
limitation, depositions in connection with such proceedings) shall not be
subject to this Section 5(d).
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(e) Scope. The parties hereto agree that, due to the nature of
the Company's business, the duration and scope of the non-competition and
non-solicitation provisions set forth above are reasonable. In the event that
any court determines that the duration or the geographic scope, or both, are
unreasonable and that such provisions are to that extent unenforceable, the
parties hereto agree that such provisions shall remain in full force and effect
for the greatest time period and in the greatest area that would not render it
unenforceable. The parties intend that the non-competition and non-solicitation
provisions herein shall be deemed to be a series of separate covenants, one for
each and every county of each and every state of the United States of America
and each and every political subdivision of each and every country outside the
United States of America where this provision is intended to be effective. The
Employee agrees that damages are an inadequate remedy for any breach of such
provisions and that the Company shall, whether or not it is pursuing any
potential remedies at law, be entitled to seek in any court of competent
jurisdiction, equitable relief in the form of preliminary and permanent
injunctions without bond or other security upon any actual or threatened breach
of either of these competition provisions.
6. Representations and Warranties of the Employee. The Employee hereby
represents and warrants to the Company as follows: (i) the Employee has the
legal capacity and unrestricted right to execute and deliver this Agreement and
to perform all of his obligations hereunder, and (ii) the execution and delivery
of this Agreement by the Employee and the performance of his obligations
hereunder will not violate or be in conflict with any fiduciary or other duty,
instrument, agreement, document, arrangement, or other understanding to which
Employee is a party or by which he is or may be bound or subject.
7. Disclosure of Innovations; Assignment of Ownership of Innovations;
Protection of Confidential Information. Employee hereby represents and warrants
to the Company that Employee understands that the Company's business consists of
the performance of activities and provision of services in connection with the
Company's CARExpress Health Savings Network and any other healthcare benefits
network or healthcare savings program of the Company, and that Employee may have
access to or acquire information with respect to Confidential Information (as
defined below), including software, processes and methods, development tools,
scientific, technical and/or business innovations.
(a) Disclosure of Innovations. Employee agrees to disclose in
writing to the Company all inventions, improvements and other innovations of any
kind materially relevant to the Company's present business and the CARExpress
product line that Employee may make, conceive, develop or reduce to practice,
alone or jointly with others, during the term of Employee's employment with the
Company, whether or not such inventions, improvements or other innovations are
related to and grow out of Employee's work for the Company and whether or not
they are eligible for patent, copyright, trademark, trade secret or other legal
protection ("Innovations"). Examples of Innovations shall include, but are not
limited to, discoveries, research, inventions, formulas, techniques, processes,
know-how, marketing plans, new product plans, production processes, advertising,
packaging and marketing techniques and improvements to computer hardware or
software.
(b) Assignment of Ownership of Innovations. Employee agrees
that all Innovations will be the sole and exclusive property of the Company and
Employee hereby assigns all of Employee's rights, title or interest in the
Innovations and in all related patents, copyrights, trademarks, trade secrets,
rights of priority and other proprietary rights to the Company. At the Company's
request and expense, during and after the period of Employee's employment with
the Company, Employee will assist and cooperate with the Company in all respects
and will execute documents, and, subject to Employee's reasonable availability,
give testimony and take further acts requested by the Company to obtain,
maintain, perfect and enforce for the Company patent, copyright, trademark,
trade secret and other legal protection for the Innovations. Employee hereby
appoints an authorized officer of the Company as Employee's attorney-in-fact to
execute documents on his behalf for this purpose.
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(c) Protection of Confidential Information of the Company.
Employee understands that Employee's work as an employee of the Company creates
a relationship of trust and confidence between Employee and the Company. During
and after the period of Employee's employment with the Company, Employee will
not use or disclose or allow anyone else to use or disclose any Confidential
Information relating to the Company, its products, services, suppliers or
customers except as may be necessary in the performance of Employee's work for
the Company or as may be specifically authorized in advance by appropriate
officers of the Company. "Confidential Information" shall include, but not be
limited to, information consisting of research and development, patents,
trademarks and copyrights and applications thereof, technical information,
computer programs, software, methodologies, innovations, software tools,
know-how, knowledge, designs, drawings, specifications, concepts, data, reports,
processes, techniques, documentation, pricing, marketing plans, customer and
prospect lists, trade secrets, financial information, salaries, business
affairs, suppliers, profits, markets, sales strategies, forecasts, employee
information and any other information not available to the general public,
whether written or oral, which Employee knows or has reason to know the Company
would like to treat as confidential for any purpose, such as maintaining a
competitive advantage or avoiding undesirable publicity. Employee will keep
Confidential Information secret and will not allow any unauthorized use of the
same, whether or not any document containing it is marked as confidential. These
restrictions, however, will not apply to Confidential Information that has
become known to the public generally through no fault or breach of Employee's or
that the Company regularly gives to third parties without restriction on use or
disclosure.
8. Company Property. All records, files, lists, including computer
generated lists, drawings, documents, software, documents, equipment, models,
binaries, object modules, libraries, source code and similar items relating to
the Company's business that the Employee shall prepare or receive from the
Company and all Confidential Information shall remain the Company's sole and
exclusive property ("Company Business Property"). Upon termination of this
Agreement, the Employee shall promptly return to the Company all property of the
Company in his possession, including Company Business Property. The Employee
further represents that he will not copy or cause to be copied, or print out or
cause to be printed out, any Company Business Property other than as
specifically authorized and required in the performance of the Employee's
duties. The Employee additionally represents that, upon termination of his
employment with the Company, he will not retain in his possession any such
Company Business Property.
9. Cooperation. The Employee and Company agree that during the term of
Employee's employment they shall, at the request of the other Party, render all
assistance and perform all lawful acts that each Party considers necessary or
advisable in connection with any litigation involving either Party or any
director, officer, employee, shareholder, agent, representative, consultant,
client, or vendor of the Company.
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10. Employment Dispute Settlement Procedure / Waiver of Rights.
(a) The Employee and the Company each agree that, in the event
either party (or its representatives, successors or assigns) brings an action in
a court of competent jurisdiction relating to the Employee's recruitment,
employment with, or termination of employment from the Company, each party in
such action agrees to waive his, her or its right to a trial by jury, and
further agrees that no demand, request or motion will be made for trial by jury.
(b) The parties hereto further agree that, in the event that
either seeks relief in a court of competent jurisdiction for a dispute covered
by this Agreement, any other agreement between the Employee and the Company, or
that relates to the Employee's recruitment, employment with or termination of
employment from the Company, the defendant or third-party defendant in such
action may, at any time within 60 days of the service of the complaint,
third-party complaint or cross-claim upon such party, at his, her or its option,
require all or part of the dispute to be arbitrated by a group of persons
consisting of three (3) arbitrators in accordance with the rules of the American
Arbitration Association. The parties agree that the option to arbitrate any
dispute is governed by the Federal Arbitration Act. The parties understand and
agree that, if the other party exercises his, her or its option, any dispute
arbitrated will be heard solely by the arbitrators, and not by a court. The
first arbitrator shall be chosen by the Company, the second arbitrator shall be
chosen by the Employee, and the third arbitrator shall be chosen by the American
Arbitration Association in accordance with such association's rules. Judgment
upon the award rendered, however, may be entered in any court of competent
jurisdiction. The cost of such arbitration shall be borne equally by the
parties.
(c) This dispute resolution agreement will cover all matters
directly or indirectly related to the Employee's recruitment, employment or
termination of employment by the Company; including, but not limited to, claims
involving laws against discrimination whether brought under federal and/or state
law and/or local law, and/or claims involving co-employees but excluding
Worker's Compensation Claims. Nothing contained in this Section 10 shall limit
the right of the Company to enforce by court injunction or other equitable
relief the Employee's obligations under Sections 5, 7 and 8 hereof.
11. Attorney's Fees.
(a) In the event of any dispute arising out of or under this
Agreement or the Employee's employment with the Company, if the arbitrator or
court of competent jurisdiction, whichever is hearing the matter, determines
that the Employee has prevailed on the issues in the arbitration or court
proceeding, as the case may be, the Company shall, upon presentment of
appropriate documentation, at the Employee's election, pay or reimburse the
Employee for all reasonable legal and other professional fees, costs of
arbitration and other reasonable expenses incurred in connection therewith by
the Employee.
(b) The Company shall promptly pay the Employee's reasonable
costs of entering into this Agreement, including the reasonable fees and
expenses of his counsel and other professionals, up to a maximum of $10,000
(based on such counsel's and professionals' standard hourly rates). The Company
shall gross up for tax purposes any deemed income to the Employee arising
pursuant to the payments provided under this Section 11(b) so that the economic
benefit is the same to the Employee as if such payments were provided on a
non-taxable basis to the Employee.
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12. Choice of Law and Jurisdiction. This Agreement shall be construed
and interpreted under, and the rights of the parties determined in accordance
with, the laws of the Commonwealth of Pennsylvania. Each of the parties hereto
hereby irrevocably consents and submits to the exclusive jurisdiction of the
state and federal courts of the Commonwealth of Pennsylvania in connection with
any suit, action, or other proceeding concerning this Agreement or enforcement
of Sections 5, 7 and 8 hereof. The Employee waives and agrees not to assert any
defense that the court lacks jurisdiction, venue is improper, inconvenient forum
or otherwise. The Employee agrees to accept service of process by certified mail
at the Employee's last known address.
13. Successors and Assigns. Neither this Agreement, nor any of the
Employee's rights, powers, duties or obligations hereunder, may be assigned by
the Employee. This Agreement shall be binding upon and inure to the benefit of
the Employee and his heirs and legal representatives and the Company and its
successors. Successors of the Company shall include, without limitation, any
company, individual, group, association, partnership, firm, venture or other
entity or party acquiring, directly or indirectly, all or substantially all of
the assets of the Company, whether by merger, consolidation, purchase, lease or
otherwise. Any such successor referred to in this paragraph shall thereafter be
deemed "the Company" for the purpose hereof. All covenants and restrictions upon
the Employee hereunder, including, but not limited to, Sections 5, 7 and 8
hereof, are specifically assignable by the Company.
14. Waiver. Any waiver or consent from the Company with respect to any
term or provision of this Agreement or any other aspect of the Employee's
conduct or employment shall be effective only in the specific instance and for
the specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of the Company at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to any term or
provision of this Agreement or any other aspect of the Employee's conduct or
employment (except as otherwise expressly provided herein) shall in no manner
affect the Company's right at a later time to enforce any such term or
provision.
15. Notices. All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first class,
registered mail, return receipt requested, postage and registry fees prepaid, to
the applicable party and addressed as follows:
If to the Company:
National Health Partners, Inc.
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Board of Directors
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With a copy to:
Xxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, Esquire
If to the Employee:
Xxxxx X. Xxxxxxx
c/o National Health Partners, Inc.
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
16. Severability. In the event that any one or more of the provisions
of this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
17. Headings. The descriptive headings of the several paragraphs of
this Agreement are inserted for convenience of reference only and shall not
constitute a part of this Agreement.
18. Entire Agreement and Amendments. This Agreement, including all
Exhibits that form a part hereof, contains the entire agreement of the parties
concerning the Employee's employment and all promises, representations,
understandings, arrangements and prior agreements on such subject are merged
herein and superseded hereby. The provisions of this Agreement may not be
amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification, repeal, waiver, extension or discharge is sought. No
person acting other than pursuant to a resolution of the board of directors
shall have authority on behalf of the Company to agree to amend, modify, repeal,
waive, extend or discharge any provision of this Agreement or anything in
reference thereto or to exercise any of the Company's rights to terminate or to
fail to extend this Agreement.
19. Survival. The Employee's obligations under Paragraphs 5, 7 and 8
shall survive and continue pursuant to the terms and conditions of this
Agreement following specific termination.
20. Understanding. The Employee represents and agrees that he fully
understands his rights to discuss all aspects of this Agreement with his private
attorney, that to the extent he desires, he availed himself of this right, that
he has carefully read and fully understands all of the provisions of this
Agreement, that he is competent to execute this Agreement, that his decision to
execute this Agreement has not been obtained by any duress, and that he freely
and voluntarily enters into this Agreement, and that he has read this document
in its entirety and fully understands the meaning, intent, and consequences of
this Agreement.
21. Counterparts. This Agreement may be executed and delivered by
facsimile in two or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same agreement.
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22. Injunctive Relief. The Employee and Company hereby agree and
acknowledge that in the event of a breach or threatened breach of this Agreement
by the Employee or Company, the Company or the Employee, respectively, may
suffer irreparable harm and monetary damages alone would not adequately
compensate the Company or the Employee, respectively. Accordingly, the Company
and the Employee will therefore be entitled to injunctive relief to enforce this
Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and attested by its duly authorized officers, and the Employee has set
his hand, all as of the day and year first above written.
NATIONAL HEALTH PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------
Xxxxx X. Xxxxx
Chief Financial Officer
EMPLOYEE
/s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
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Omitted Exhibits and Schedules
The following exhibits and schedules to the Employment Agreement have
been omitted:
Exhibit Exhibit Description
-------- --------------------
A Job Description
B Form of Option
The Company agrees to furnish supplementally a copy of the foregoing
omitted exhibits to the Securities and Exchange Commission upon request.
