EXHIBIT 10.46
EMPLOYMENT CONTRACT
THIS CONTRACT OF EMPLOYMENT (hereinafter "Contract") is made in
Indianapolis, Indiana, dated and effective November 1, 2002, by and between
HOME MED CHANNEL, INC. an Indiana corporation, (hereinafter the "Company"),
Standard Management Corporation, an Indiana corporation, (herein after the
"Guarantor"), and Xx. Xxxxx Xxxxxxx, (hereinafter "Executive").
RECITALS
A. Executive is expected to make a major contribution to the
profitability, growth and financial strength of the Company.
B. The Company considers the services of Executive to be in the
best interest of the Company and its shareholders and desires to assure the
services of the Executive on behalf of the Company on an objective and
impartial basis and without distraction or conflict of interest in the event of
an attempt to obtain control of the Company.
C. Executive is willing to become employed by the Company under
the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties to this Contract hereby agree as follows:
AGREEMENT
1. Employment. The Company hereby agrees to employ Executive as
President of the Company. Executive accepts such employment and agrees to be
subject to the general supervision, orders, advice and direction of the Chief
Executive Officer and the Board of Directors of the Company in a manner
consistent with the Articles of Incorporation and By-Laws of the Company.
2. Terms of Employment and Compensation. Executive's term of
employment (the "Employment Term") hereunder shall start on November 1, 2002
and continue until such employment terminates pursuant to Section 7 hereof.
3. Salary and Bonus and Options. Executive's salary for the
first year hereunder shall be $218,000 per year. Thereafter during the
Employment Term, Executive's salary shall be increased each year by an amount
equal to Executive's salary for the previous year, multiplied by the percent
change of the Consumer Price Index for all Urban Consumers (the "CPI")
(published by the Bureau of Labor Statistics, United States Department of
Labor) during the immediately preceding calendar year. For example, if the
percent change in the CPI from January 1, 2002 to December 31, 2002 were 5%,
Executive's salary for the second year hereunder would be $228,900. Executive's
salary shall be payable on the Company's regular salary payment dates. In
addition, within 90 days after the end of each fiscal year during the
Employment Term, Executive shall receive a bonus in an amount determined by the
Chairman of the Company and
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approved by the Compensation Committee of Standard Management Corporation.
Employee shall be entitled to receive 60,000 incentive stock options of
Standard Management Corporation at the closing market price on the effective
date of this Contract. Vesting of such stock options shall be one-third upon
the grant date, one-third one year from the grant date, and the remaining
one-third two years from the grant date.
The salary and bonus payments hereunder shall be subject to
withholding and any other applicable tax law.
4. Salary Guarantee. The salary payable to Executive hereunder
(the "Guaranteed Payments") shall continue to be paid to Executive hereunder as
set forth herein in the event of a termination of Executive's employment
hereunder except in the event that Executive terminates this Contract pursuant
to Section 7(e) hereof or in the event that the Company terminates Executive's
employment pursuant to Section 7(b) hereof.
(a) In the event that the Company elects not to renew
the Contract as provided in (i) Section 7(a) hereof, or (ii) in the
event Company terminates the Contract pursuant to Section 7(f) hereof,
the Executive shall be entitled to a severance payment equal to twelve
(12) months salary payable in twelve (12) equal monthly installments
based upon the Executive's salary at the termination of the Employment
Term.
(b) In the event that this Contract is terminated as a
result of the death of Executive as provided in Section 7(c) hereof,
the Executive shall be entitled to a payment equal to twelve (12)
months salary payable in a lump sum within thirty (30) days of the
date of death of the Executive based upon the Executive's salary at
the date of his death. Any such payment shall be payable to the Estate
of the Executive. The Company shall be entitled to an offset against
such sums due in the amount of the sum payable to Executive's
beneficiary as provided under Section 6 hereof.
(c) In the event this Contract is terminated as a result
of the disability of Executive as provided in Section 7(d) hereof, the
Executive shall be entitled to a payment equal to twelve (12) months
salary payable in twelve (12) equal monthly installments based upon
the Executive's salary at the time of such termination based upon such
disability. The Company shall be entitled to an offset against such
sums due in the amount of any disability insurance payment received by
the Executive from the Company.
(d) In the event that any acquisition of control occurs
to the Guarantor, and thereafter, the term of this Contract is
terminated for any reason other than pursuant to Section 7(b) hereof,
or as a result of the option of the Executive pursuant to Section 7(e)
hereof, the Executive shall be entitled to a severance payment equal
to remaining Employment Term under this Contact plus twelve months,
and any such sum shall be payable in twelve (12) equal monthly
installments based on the Executive's salary at the time of such
termination, other than in the event of death of the Executive, which
sum shall be payable in a lump sum within thirty (30) days of the
Executive's date of death.
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As used in this Contract, the "acquisition of control" means:
(i) attaining ownership of 15% or more of the shares of voting stock
of SMC by any person or group (other than a person or group including
Executive or with whom or which Executive is affiliated), or (ii) the
occurrence of a "change of control" required to be described under the
proxy disclosure rules of the Securities and Exchange Commission.
5. Reimbursement for Expenses. The Company shall, during the
Employment Term, reimburse Executive for all reasonable travel, business
entertainment and other business expenses incurred by Executive in rendering
services under this Contract. Such reimbursement shall be subject to compliance
with the applicable policies and procedures established by the Company.
6. Fringe Benefits. During the Employment Term, Executive shall
be entitled to participate in the Company's corporate, medical, medical
reimbursement and disability insurance plans. To the extent that split dollar
insurance can be structured not to violate the Xxxxxxxx-Xxxxx Act of 2002, the
Company shall also provide Executive with Key Man split dollar term life
insurance in the amount of $1,000,000, $500,000 of which shall be payable to
Executive's spouse and the balance of $500,000 shall be payable to the Company.
Executive shall be entitled to all other fringe benefits generally provided for
salaried employees of the Company upon attaining eligibility as provided under
such fringe benefit programs. Executive shall be entitled to four (4) weeks
paid vacation per year.
7. Termination. The Employment Term shall terminate on the first
to occur of the following events:
(a) the second anniversary of the date on which the
Employment Term became effective; provided, however, that after such
second anniversary, the Employment Term shall be extended each year
thereafter for an additional one year period unless either party gives
the other written notice at least 90 days before such extension of its
intention not to renew the Contract.
(b) termination by the Company for cause, upon written
notice (specifying the particulars) to Executive from the Company's
Board of Directors, which cause shall be limited to:
(i) the persistent failure of or refusal by
Executive to comply with the material orders, advice,
directions, policies, standards and regulations of the
Company and its President or Board of Directors, as
promulgated from time to time, or with the provisions of this
Contract;
(ii) an act or acts of fraud or dishonesty by
Executive resulting in or tending to result in gain to or
personal enrichment of Executive at the Company's expense;
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(iii) any felony conviction of Executive or
material tort which is detrimental to the Company; or
(iv) the persistent absence of Executive from
his employment without cause or explanation;
(c) the death of Executive;
(d) the 90th day after notice from the Company to
Executive that Executive is considered to be permanently disabled due
to his inability to perform his duties or fulfill his responsibilities
hereunder; which inability existed for a period of 90 days or more
before such notice;
(e) termination by the Executive, at his option, after
30 days prior written notice to the Company , or
(f) termination by the Company after the second
anniversary of the Employment Term, at its option after 30 days prior
written notice to the Executive.
Upon termination of Executive's employment as provided above, Executive (or his
estate) shall be entitled to receive (i) any unpaid salary payments with
respect to periods prior to the date of such termination, (ii) any declared but
unpaid bonus granted to Executive prior to the date of termination, and (iii)
any termination, disability or death benefit to which he is entitled under any
employee benefit plan of the Company which is in effect at the time of
termination of Executive's employment. In addition, Executive shall be entitled
to receive the Guaranteed Payments provided for in Section 4 above as provided
therein. Such obligation to make such payments by Company to Executive shall
survive the termination of Executive's employment hereunder.
8. Agreement Not To Compete. Subject to the provisions set forth
herein, Executive agrees that if his employment is terminated by the Company
for any reason he shall not, for a period of one year from the date his
employment hereunder terminates, (x) directly or indirectly sell or attempt to
sell, within Indiana, on behalf of himself or any other person, corporation or
entity, any type of product marketed by the Company or any of its affiliates or
subsidiaries at the time his employment is terminated, (y) directly or
indirectly sell or attempt to sell any type of product marketed by the Company
or any of its affiliates or subsidiaries at the time his employment is
terminated to any person, corporation or other entity that is a customer of the
Company or any of its affiliates or subsidiaries at the time his employment is
terminated, and (z) within Indiana, directly or indirectly, own, manage,
operate, control, be employed by, participate in, or be connected in any manner
with the ownership, management, operation, or control of any business similar
to the type of business conducted by the Company or any of its affiliates or
subsidiaries at the time of termination of Executive's employment hereunder;
provided, however, that Executive may be a shareholder of less than 5% of the
outstanding shares of voting stock of any company listed on a recognized stock
exchange or traded in the NASD over-the-counter market.
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Executive has disclosed to the Company, and the Company acknowledges receipt of
disclosure that Executive has a controlling interest in Health Care Resources,
Inc. ("HCR"), an Indiana corporation, a limited private medical practice, a ten
percent (10%) interest in PCA Corrections, a pharmacy located in Louisville,
KY, and a seven percent (7%) interest in Promed, a real estate limited
partnership located in Carmel, Indiana.
The Company and Executive agree that the above mentioned activities may require
Executive's attention during business hours, and the Company consents to
Executive transacting such activities during the normal work week of the
Company, with reasonable notice to the Company, in an amount not in excess of
eight (8) hours per business week. In addition, Executive shall be required to
offer any new contractual opportunities presented to HCR to the Company on a
right of first refusal basis to avoid any potential conflict of interest. The
Company shall be deemed to have passed on any such opportunity if the Company
fails to accept such opportunity in writing within ten (10) business days after
the same is presented in writing by Executive to Company.
In the event this Employment Contract is terminated prior to the second
anniversary of its effective date, other than for cause pursuant to Section
7(b), to the extent the Deferred Note referenced in the Limited Liability
Company Purchase Agreement has not been paid in full, such Deferred Note shall
become immediately due and payable. If the Company should fail to make any
payments on the Deferred Notes or severance payments pursuant to Section 4, if
due, within ten (10) days of the due date, then Executive's obligations
pursuant to the agreement not to compete shall lapse and shall be of no further
force and effect.
9. Technical Information. Executive covenants and agrees that
during the Employment Term and for a period of one year after termination of
the Employment Term (regardless of whether Executive is terminated or defaults
under any other provision of this Contract) he will assign to the Company or
its nominees all of his right, title and interest in and to all "Technical
Information" (as hereinafter defined) which he makes, develops or conceives,
either alone or in conjunction with others; he will disclose promptly to the
Company all such Technical Information; and he will cooperate with the Company
in its efforts to protect its rights of ownership in such Technical
Information. For purposes of this Contract, "Technical Information" shall mean
and include, but not be limited to, all software, processes, devices,
trademarks, trade names, copyrights, marketing plans, improvements, and ideas
relating to the business of the Company, and all goodwill associated with any
such item.
10. Covenant Against Disclosure of Technical and Confidential
Information. Executive agrees that while he is employed by the Company or any
of its affiliates or subsidiaries and thereafter he shall not, directly or
indirectly, disclose or use to the detriment of the Company or for the benefit
of any other person, corporation or other entity, any confidential information
or trade secret (including, but not limited to, the identity and needs of any
customer of the Company or any of its affiliates or subsidiaries, the method
and techniques of any of the business of the Company or any of its affiliates
or subsidiaries, the marketing, sales, costs and pricing plans and objectives
of the Company or any of its affiliates or subsidiaries, the problems,
developments, research records, and Technical Information) of the Company, or
any of the affiliates or subsidiaries of the Company. Furthermore, Executive
shall deliver promptly to the Company upon termination of his employment, or at
any time the Company may so request, all
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memoranda, notes, records, reports, manuals, software, models, designs, and
other documents and computer records (and all copies thereof) relating to the
business of the Company or any of its affiliates or subsidiaries, and all
property associated therewith, which he may then possess or have under his
control. This Contract supplements and does not supersede Executive's
obligations under statute or the common law to protect the Company's or any of
its affiliates or subsidiaries trade secrets and confidential information.
11. Remedy. Executive acknowledges that the restrictions
contained in Sections 8 through 10 of this Contract are reasonable and that the
legal remedies for breach of the covenants which are contained in Sections 8
through 10 of this Contract may be inadequate and, therefore, agrees that, in
the event of any actual or threatened breach of any such covenant, in addition
to any other right or remedy which the Company may have, the Company may: (a)
seek specific enforcement of any such covenant through injunction or other
equitable relief, or (b) recover from Executive an amount equal to (i) all
costs and expenses (including attorneys' fees) incurred by the Company in
enforcement of the covenant, plus (ii) all other damages to which the Company
may be legally entitled.
12. Guarantee of Standard Management Corporation. The Guarantor
unconditionally guarantees the financial obligations of the Company payable to
Executive as provided in Sections 3, 4, 5 and 6 hereof.
13. Entire Agreement. This Contract contains the entire agreement
of the parties relating to the employment of Executive by the Company,
superseding any and all prior such agreements, and cannot be amended, modified,
or supplemented in any respect except by subsequent written agreement entered
into by the parties.
14. Benefit. Executive acknowledges that the services to be
rendered to him are unique and personal; accordingly, Executive may not assign
any of his rights or delegate any of his duties or obligations under this
Contract. The rights and obligations of the Company under this Contract shall
inure to the benefit of, and be binding upon, the legal representatives,
successors and assigns of the Company.
15. No Waiver. No failure on the part of either party at any time
to require the performance by the other party of any term of this Contract
shall be taken or held to be a waiver of such term or in any way affect such
party's right to enforce such term, and no waiver on the part of either party
of any term in this Contract shall be taken or held to be a waiver of any other
term hereof or the breach thereof.
16. Severability. The provisions of Sections 8 through 11 hereof
are severable, and the invalidity or unenforceability of any particular
provision of Sections 8 through 11 shall not affect or limit the enforceability
of the other provisions. If any provision in Sections 8 through 11 hereof is
held unenforceable for any reason, including the time period, geographic area,
or scope of activity covered, then such provision shall be enforced to whatever
extent is reasonable and enforceable.
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17. Governing Law. This Contract shall be governed and construed in
accordance with the law of the State of Indiana (other than the provisions
relating to choice of law). The Contract may be brought in any state or federal
court of record in Indianapolis, Indiana and the parties hereto waive any right
to question the jurisdiction of such court over their person or the property of
such venue.
18. Captions. The captions in this Contract are for convenience
and identification purposes only, and not an integral part of this Contract,
and are not to be considered in the interpretation of any part hereof.
19. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if in writing and
personally delivered to the party to whom notice should be given or if sent by
registered or certified mail, postage prepaid, addressed to the addresses set
forth below, or to such other addresses as shall be furnished in writing by
either party to the other:
Xxxxx Xxxxxxx
0000 X. Xxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, XX 00000
To the Company:
Home Med Channel, Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Chairman and Chief Executive Officer
To the Guarantor:
Standard Management Corporation
00000 X. Xxxxxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Chairman and Chief Executive Officer
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Guarantor have caused this
Contract to be executed on its behalf by its duly authorized officers and
Executive has hereunto set his hand as of the 1st day of November, 2002.
The "Company"
HOME MED CHANNEL, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Attest:
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
Secretary
The "Guarantor"
STANDARD MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Attest:
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx
Secretary
EXECUTIVE
/s/ Xxxxx Xxxxxxx
-------------------------------------------
Xxxxx Xxxxxxx
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