EXHIBIT 10.23 Employment Agreement with Xx. Xxxx Xxxx, dated March 7, 2005.
EMPLOYMENT AGREEMENT
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This employment agreement ("Agreement") is entered into this 7th day of
March, 2005 to be effective upon the first day that Integrated Healthcare
Holding, Inc., a Nevada Corporation ("Company") owns the four (4) hospitals
being divested by Xxxxx Healthcare System, in Orange County California,
specifically, Western Medical Center - Santa Xxx; Western Medical Center -
Anaheim; Xxxxxxx Medical Center; and Coastal Communities Hospital, by and
between "Company" and Xxxx X. Xxxx ("Executive") hereinafter referred to as the
"Commencement Date."
RECITALS
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A. The Company is engaged in the business of hospital acquisition and
management (the "Business").
B. The Company wishes to employ Executive, and Executive agrees to
serve, as Executive Director of Company, subject to the terms and conditions set
forth below.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. TERM OF EMPLOYMENT. The Company hereby employs Executive, and
Executive hereby accepts employment with the Company, for a period of three (3)
years commencing on the "Commencement Date" and ending on March 7, 2008, unless
terminated earlier in accordance with the provisions of Section 5 below.
2. POSITION AND DUTIES.
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Executive shall serve as the Executive Chairman of the Board of Directors, of
the Company. Employee's principal duties and responsibilities shall be to, in
concert with the Chief Executive Officer, the President and the Chief Financial
Officer, set the overall strategies and direction of the Company and monitor and
oversee corporate performance, as well as to guide the Board of Directors, in
its role of oversight of corporate activities and performance. He shall report
to the Board of Directors of the Company. Except during vacation periods or in
accordance with the Company's personnel policies covering executive leaves and
reasonable periods of illness or other incapacitation, Executive shall devote
his services to the Company's Business and interests in a manner consistent with
Executive's title and office and the Company's needs for his services. Executive
agrees to perform his duties pursuant to this Agreement in good faith and in a
manner which he honestly believes to be in the best interests of the Company,
and with such care, including reasonable inquiry, as an ordinary prudent person
in a like position would use under similar circumstances. Executive shall at all
times be subject to and shall observe and carry out such reasonable rules,
regulations, policies, directions and restrictions as may be established and
communicated to him from time to time by the Company.
3. PLACE OF PERFORMANCE. Executive shall perform his duties at the
Company's corporate headquarters in Costa Mesa, California or at such other
location as may from time to time be assigned to him, except for reasonable
work-related travel. In the event Company relocates its headquarters and/or
Executive's office outside of Orange County, Executive shall have the right, in
Executive's sole discretion, to elect to treat such action as a termination of
this Agreement without cause by Company as provided for in Section 5.3. However,
Executive agrees to exercise such right within thirty (30) days from receipt of
written notification by the Company that a decision has been made to relocate.
In the event Executive exercises his rights under this paragraph, Company shall
compensate Executive as provided in Section 5.3.
4. COMPENSATION AND BENEFITS.
4.1 BASE SALARY. In consideration of Employee's performance of
all of his duties and responsibilities hereunder and his observance of all of
the covenants, conditions and restrictions contained herein, Employee shall be
entitled to receive a base salary, from the Commencement Date of this Agreement,
through the third anniversary hereof, of Five Hundred Thousand Dollars
($500,000) per annum. The base salary shall be payable in bi-weekly or other
periodic installments in accordance with the Company's payroll procedures in
effect from time to time. The base salary has been expressed in terms of a gross
amount, and the Company is or may be required to withhold from such gross amount
deductions in respect of federal, state or local income taxes, FICA and the
like. Employee's base salary for any renewal term hereof shall be determined by
the Compensation Committee of the Company's Board of Directors. Executive shall
receive base salary increases for each succeeding year of this Agreement as
determined by the Company's Board of Directors but in no event shall Executive's
base salary be decreased.
4.2 BONUS. Executive shall receive an annual bonus during the
term of his employment under this Agreement as determined by the Board of
Directors. Such bonus shall be payable to Executive no later than 60 days after
the end of each calendar year.
4.3 STOCK OPTIONS. The Company will grant Executive,
effective as of the Commencement Date, an option to purchase One Million shares
of the company's class A common stock, .001 value per share, at a price of the
mean average per share price for 10 days following the Commencement Date. This
option will be for a period of 3 consecutive years and will vest at the rate of
33% on each anniversary of this Agreement. Executive shall receive additional
stock options annually if certain company goals are met. Additional information
regarding Company's stock option plan shall be provided.
4.4 MEDICAL INSURANCE. Executive shall receive medical,
dental, vision and/or other health insurance in the same manner and scope as
similarly-situated senior Executives.
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4.5 EXPENSES. Company shall reimburse Executive for
appropriate, reasonable business expenses incurred by Executive, in accordance
with the Company's general policy applicable to similarly-situated senior
executives. The Company shall pay the reasonable costs for Executive to maintain
membership in professional organizations.
4.6 LIFE AND DISABILITY INSURANCE AND RETIREMENT PLAN.
Executive shall be entitled to participate in any short-term disability plan,
long-term disability plan and life insurance plan and any pension or retirement
plan maintained by the Company for similarly-situated senior executives.
4.7 AUTOMOBILE ALLOWANCE. Executive shall receive an
automobile and insurance allowance of $1,000.00 per month.
4.8 CELLULAR TELEPHONE. Executive shall receive reimbursement
for reasonable expenses associated with Executive's use of a cellular telephone
in performing his services.
4.9 VACATION. Executive shall be entitled to four weeks of
paid vacation each year of this Agreement in accordance with the standard
vacation policies of Company applicable to similarly-situated senior executives.
4.10 OTHER EMPLOYEE BENEFITS. Executive shall receive all
other employee benefits and participate in all other employee benefit plans
provided by the Company to similarly-situated senior Executives.
5. TERMINATION.
5.1 BY COMPANY FOR CAUSE. Notwithstanding Section 1, the
employment period may be terminated by the Company at any time for "cause." For
purposes of this Section 5.1, "cause" shall mean (i) the commission by Executive
of a felony or other crime involving moral turpitude or (ii) any willful and
dishonest act committed by Executive that materially breaches Executive's duties
or obligations under this Agreement. If Company terminates Executive for "cause"
under this Section 5.1, Executive shall be entitled to receive all accrued
salary, benefits, and vested stock options, through the date of termination.
5.2 BY EXECUTIVE FOR CAUSE. Executive may resign from his
employment with Company for "cause." For purposes of this Section 5.2, "cause"
shall mean (i) the removal of Executive as Executive Chairman of the Board of
the Company , (ii) any material diminution or modification of Executive's normal
duties, responsibilities and authority under this Agreement, (iii) any change in
Executive's direct reporting relationship to the Board of Directors, (iv) any
material breach of this agreement by Company, (v) the dissolution, or bankruptcy
of the Company, (vi) any person, entity or group of affiliated persons and
entities having more than 50% of the outstanding voting securities of the
Company which sells, transfers, disposes or otherwise relinquishes their
interest in the Company. If Executive wishes to resign after a change of control
he must exercise such right within 10 days after written notification of such
change of control. If Executive resigns for "cause" under this Section 5.2,
Executive shall receive all salary, benefits, health and dental insurance,
bonuses, and stock options for a period of 12 months, but will not accrue
additional Paid Time Off, vacation or other sick pay benefits, if Executive
signs the Severance Agreement attached as exhibit A, within sixty (60) days of
his separation date.
5.3 BY COMPANY WITHOUT CAUSE. The Board of Directors may
terminate executive without cause upon thirty (30) days' written notice to
Executive. If the Board terminates Executive without cause, Executive shall
receive all salary, benefits, health and dental insurance, bonuses and stock
options for a period of twelve (12) months, but will not accrue additional Paid
Time Off, vacation or other sick pay benefits, if Executive signs the severance
agreement attached as exhibit A, within thirty (30) days of his separation date.
10.23-3
Company's Initials: Executive's Initials:
__________________ _____________________
5.4. BY EXECUTIVE WITHOUT CAUSE. Executive may resign without
cause upon sixty (60) days' written notice to Company. If Executive resigns
without cause, Executive shall be entitled to receive all accrued salary,
benefits, and vested stock options, and accrued Paid Time Off, other vacation
and/or sick pay benefits through the date of resignation.
5.5 NO MITIGATION REQUIRED. In the event of an employment
termination under Sections 5.2 and 5.3 above, Executive shall not be required to
mitigate the amount of any payments under Sections 5.2 and 5.3 by seeking other
employment, and any payments by Company under Sections 5.2 and 5.3 shall not be
reduced by the amount of any payments or benefits earned by Executive as a
result of other employment or remunerative relationship.
5.6. DEATH OR DISABILITY. The Board shall be entitled to end
Executive's employment if Executive dies or becomes disabled. Executive shall be
deemed "disabled" for purposes of this Agreement if he is unable, by reason of
illness, accident, or other physical or mental incapacity, to perform
substantially all of his normal duties for a continuous period of ninety (90)
days. In the event Executive's employment ends on account of his death or
disability, Executive (or Executive's surviving spouse or estate if applicable)
shall continue to receive all of Executive's compensation, prorata bonus,
benefits and stock options owed under this Agreement for a period of one year.
However, Paid Time Off, vacation pay or other sick pay benefits shall not accrue
during this period. All stock options which have not vested under this Agreement
shall immediately vest and Executive (or his surviving spouse or estate if
applicable) shall have the right to all benefits associated with such vesting
upon separation. Executive's separation from Company on account of death or
disability shall not constitute a termination for cause by Company under this
Agreement.
6. INDEMNIFICATION. To the extent permitted by law, Company shall
defend, indemnify and hold Executive harmless from and against any and all
losses, liabilities, damages, expenses (including attorneys' fees and costs),
actions, causes of action or proceedings arising directly or indirectly from
Executive's performance of this Agreement or services as an employee of Company,
except claims arising from employee's intentional misconduct or gross
negligence. The Company shall control the defense of such claim(s). This
indemnification shall be in addition to any right of indemnification to which
Executive may be entitled under Company's Articles of Incorporation and By-Laws.
With the prior approval of the Company which may be withheld in the Company's
sole and absolute discretion, Executive may retain his own counsel to defend him
in such actions in which case Company shall pay for the reasonable costs and
expenses of such counsel.
7. CONFIDENTIALITY AND EXCLUSIVITY.
10.23-4
7.1 CONFIDENTIALITY. During the term of Executive's
employment under this Agreement and thereafter, Executive will keep confidential
and will not directly or indirectly reveal, divulge or make known in any manner
to any person or entity (except as required by applicable law or in connection
with the performance of his duties and responsibilities as an Executive
hereunder) nor use or otherwise appropriate for Executive's own benefit, or on
behalf of any other person or entity by whom Executive might subsequently be
employed or otherwise associated or affiliated with, any Confidential
Information. Confidential Information shall include information (not readily
compiled from publicly available sources) which is made available to Executive
or obtained by Executive during the course of his employment relating or
pertaining to the Company's trade secrets, such as financial information,
technical information and /or business plans and strategies. Executive agrees to
cooperate with the Company to maintain the secrecy of and limit the use of such
Confidential Information.
7.2 EXCLUSIVITY. During the term of Executive's employment
under this Agreement, Executive shall not enter into the services of or be
employed in any capacity or for any purposes whatsoever, whether directly or
indirectly, by any person, firm corporation or entity other than the Company,
and will not, during such period of time, be engaged in any business, enterprise
or undertaking other than employment by the Company except in the
non-compensated position as Manager, Orange County Physicians Investment Network
and in his part-time practice of cardiology, so long as those activities do not
detract from the full discharge of Employee's duties hereunder.
7.3 ENFORCEMENT. Company and Executive recognize and
acknowledge that Executive is employed under this Agreement as an Executive in a
position where Executive will be rendering personal services of a special,
unique, unusual and extraordinary character requiring extraordinary ingenuity
and effort by Executive. Executive hereby acknowledges that compliance with the
provisions of Section 7 of the Agreement is necessary to protect the goodwill
and other proprietary interests of the Company and that the Company would suffer
continuing and irreparable injury which injury is not adequately compensable in
monetary damages or at law. Accordingly, Executive agrees that the Company may
obtain injunctive relief against the breach or threatened breach of the
foregoing provisions, in addition to any other legal remedies which may be
available to it under this Agreement.
8. PROPRIETARY RIGHTS AND MATERIALS. All documents, memoranda, reports,
notebooks, correspondence, files, lists and other records, and the like,
designs, drawings, specifications, computer software and computer equipment,
computer printouts, computer disks, and all photocopies or other reproductions
thereof, affecting or relating to the Business of the Company ("Materials"),
shall be and remain the sole property of the Company. Upon termination of this
Agreement, Executive shall deliver promptly to the Company all such Company
Materials.
9. NO ASSIGNMENT. This Agreement shall be binding upon the Company and
Executive. Neither Company nor Executive is permitted to assign any rights or
duties under this Agreement. In the event Company assigns any of its rights or
duties under this Agreement, Executive shall have the right, in Executive's sole
discretion, to elect to treat such action as a termination of this Agreement
without cause by Company as provided for in Section 5.3. However, Executive
agrees to exercise such right within thirty (30) days from receipt of written
notification by the Company that a decision has been made to assign this
Agreement. In the event Executive exercises his rights under this paragraph,
Company shall compensate Executive as provided in Section 5.3.
10. NOTICES. Any notices required or permitted to be sent under this
Agreement shall be delivered by hand or mailed by registered or certified mail,
return receipt requested, and addressed as follows:
If to Company:
Xxxxx X. Xxxxxxxx President
Integrated Healthcare Holdings, Inc
000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
10.23-5
If to Executive:
Xxxx X. Xxxx, M.D.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX. 00000
Either party may change its address for receiving notices by giving
written notice to the other party.
12. MISCELLANEOUS PROVISIONS.
12.1 ARBITRAL CLAIMS. To the fullest extent permitted by law,
all disputes between Executive (and his attorneys, successors, and assigns) and
Company (and its Affiliates, shareholders, directors, officers, employees,
agents, successors, attorneys, and assigns) relating in any manner whatsoever to
the employment or termination of Executive's employment, including, without
limitation, all disputes arising under this Agreement, ("Arbitral Claims") shall
be resolved by arbitration. All persons and entities specified in the preceding
sentence (other than Employer and Employee) shall be considered third-party
beneficiaries of the rights and obligations created by this Section on
Arbitration. Arbitral Claims shall include, but are not limited to, contract
(express of implied) and tort claims of all kinds, as well as all claims based
on any federal, state, or local law, statute, or regulation, excepting only
claims under applicable workers' compensation law and unemployment insurance
claims. By way of example and not in limitation of the foregoing, Arbitral
Claims shall include (to the fullest extent permitted by law) any claims arising
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, and the California Fair
Employment and Housing Act, as well as any claims asserting wrongful
termination, harassment, breach of contract, breach of covenant of good faith
and fair dealing, negligent or intentional infliction of emotional distress,
negligent or intentional misrepresentation, negligent or intentional
interference with contract or prospective economic advantage, defamation,
invasion of privacy, and claims related to disability. The parties consent to
jurisdiction and venue in Orange County, California.
PROCEDURE. Arbitration of Arbitral Claims shall be through
Judicial Arbitration and Mediation Service (JAMS), in Orange County, California,
in accordance with JAMS' rules and regulations then in effect. Arbitration shall
be final and binding upon the parties and shall be the exclusive remedy for all
Arbitral Claims. Either party may bring an action in court to compel arbitration
under this Agreement and to enforce an arbitration award. Otherwise, neither
party shall initiate or prosecute any lawsuit or administrative action in any
way related to any Arbitral Claim. Notwithstanding the foregoing, and only to
the extent allowed by law, either party may, at its option, seek injunctive
relief pursuant to section 1281.8 of the California Code of Civil Procedure. All
arbitration hearings under this Agreement shall be conducted in Orange County,
California. In any arbitration proceeding under this Agreement, the parties
shall have the same rights to discovery as would be available in a proceeding in
California Superior Court, as provided in section 1283.05 of the California Code
of Civil Procedure. The decision of the arbitrator shall be in writing and shall
include a statement of the essential conclusions and findings upon which the
decision is based. The interpretation and enforcement of this agreement to
arbitrate shall be governed by the California Arbitration Act.
10.23-6
THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO
ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO
THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT TO
ARBITRATE.
Company's Initials: Executive's Initials:
__________________ _____________________
12.2 ARBITRATOR SELECTION AND AUTHORITY. All disputes involving
Arbitral Claims shall be decided by a single arbitrator. The arbitrator shall be
selected by mutual agreement of the parties within thirty (30) days of the
effective date of the notice initiating the arbitration. If the parties cannot
agree on an arbitrator, then the complaining party shall notify JAMS and request
selection of an arbitrator in accordance with JAMS' rules. The arbitrator shall
have only such authority to award equitable relief, damages, costs and fees as a
court would have for the particular claim(s) asserted. The fees of the
arbitrator shall be paid equally by the parties. The parties shall each be
responsible for whatever costs they would have otherwise incurred had their
claims been filed in court. If the allocation of responsibility for payment of
the arbitrator's fees would render the obligation to arbitrate unenforceable,
the parties authorize the arbitrator to modify the allocation as necessary to
preserve enforceability. The arbitrator shall have exclusive authority to
resolve all Arbitral Claims, including, but not limited to, whether any
particular claim is arbitral and whether all or any part of this Agreement is
void or unenforceable.
12.3 CONTINUING OBLIGATIONS. The rights and obligations of Executive
and Company set forth in this Section on Arbitration shall survive the
termination of Executives' employment and the expiration of this Agreement.
12.4 ATTORNEYS' FEES. In the event of a dispute relating to this
Agreement, the prevailing party shall be entitled to recover its reasonable
legal fees and costs.
12.5 SEVERABLE PROVISIONS. The provisions of this Agreement are
severable, and if any provision shall be determined to be unenforceable, in
whole or in part, the remaining provisions shall nevertheless be binding and
enforceable.
12.6 NON-WAIVER. The failure of either party to insist on strict
compliance with any of the terms and conditions of this Agreement by the other
party shall not be deemed a waiver of that term or condition, nor shall any
waiver or relinquishment of any right or power at any one time or times be
deemed a waiver or relinquishment of that right or power for all or any other
times.
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12.7 ENTIRE AGREEMENT. This Agreement and those documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
12.8 CONTROLLING LAW. This Agreement shall be construed and interpreted
in accordance with California law.
12.9 AMENDMENT. This Agreement shall not be amended, released,
discharged, changed or modified in any manner, except by an instrument signed by
the parties.
12.10 PHOTOCOPIES AND COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original and together shall
constitute one complete instrument. Photocopies and facsimiles of such signed
counterparts may be used in lieu of the originals for any purpose.
12.11 NO STRICT CONSTRUCTION. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
12.12 AUTHORITY. Any person or entity purporting to have the authority
to enter into this Agreement on behalf of or for the benefit of any other person
or entity hereby warrants that it has such authority. The parties agree to sign
any forms or documents necessary to effectuate their intent under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
Dated: March 1, 2005 Integrated Healthcare Holdings, Inc.
A Nevada Corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President
Dated: April 6, 2005 By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Chairman of the Board
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