EMPLOYMENT AGREEMENT
This
employment agreement (this "Agreement"), dated as of November 26, 2007 (the
"Effective Date"), is made by and between American Surgical Assistants, Inc.,
a
Delaware corporation (the "Company"), and Xxxxx Xxxxxxxx (the "Executive")
(each, a "Party" and together, the "Parties").
WHEREAS, the Executive is to be employed as Chief Financial Officer of the
Company;
and
WHEREAS,
the Parties wish to establish the terms of the Executive's employment by the
Company;
NOW,
THEREFORE, in consideration of the foregoing, of the mutual promises contained
herein and of other
good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound, hereby agree
as
follows:
1.
POSITION/DUTIES:
(a) During
the Employment Term (as defined in Section 2 below), the Executive shall serve
as a Chief Executive Officer of the Company. In this capacity the Executive
shall have such duties, authorities and responsibilities commensurate with
the
duties, authorities and responsibilities of persons in similar capacities in
similarly sized companies and such other reasonable duties and responsibilities
as the Board of Directors of the Company (the "Board") shall designate. The
Executive shall report directly to the Chief Executive Officer. The Executive
shall obey the lawful directions of the Board, the Company's Chief Executive
Officer and any other senior executive of the Company to whom the Executive
reports and shall use his diligent efforts to promote the interests of the
Company and to maintain and promote the reputation thereof.
(b) During
the Employment Term, the Executive shall use his best efforts to perform his
duties under this Agreement and shall devote all of his business time, energy
and skill in the performance of his duties with the Company. The Executive
shall
not during the Employment Term (except as a representative of the Company or
with consent in writing of the Board) be directly or indirectly engaged or
concerned in any other business activity. Notwithstanding the foregoing
provisions, the Executive is not prohibited from (1) participating in
charitable, civic, educational, professional or community affairs or serving
on
the board of directors or advisory committees of non-profit entities, and (2)
managing his and his family's personal investments, in each case, provided
that
such activities in the aggregate do not materially interfere with his duties
hereunder.
2.
EMPLOYMENT
TERM. Except for
earlier termination as provided in Section6,
the
Executive's employment under this Agreement shall be for a one-year
term commencingon
the
Effective Date and ending on December ____, 2009 (the "Initial Term"). Subject
to Section6,
the
Initial Term shall be automatically extended for additional terms of successive
one-year
periods
(the "Additional Term") unless the Company or the Executive gives written notice
to the other of the termination of the Executive's employment hereunder at
least
60 days prior to the expiration of the Initial Term or Additional Term. The
Initial Term and any Additional Term shall be referred to herein as the
"Employment Term."
3. BASE
SALARY. The Company
agrees to pay to the Executive a base salary at an annual rate of not less
than
$120,000, payable in accordance with the regular payroll practices of the
Company. The Executive's Base Salary shall be subject to annual review by the
Board (or a committee thereof). The base salary as determined herein from time
to time shall constitute "Base Salary" for purposes of this
Agreement.
4. BONUS.
With
respect to each
full fiscal year during the Employment Term, the Executive shall be eligible
to
earn an annual bonus (the "Annual Bonus") in such amount, if any, as determined
in the sole discretion of the Board of up to 100% of the Executive's Base
Salary. In addition, the Executive shall be eligible to participate in the
Company's bonus and other incentive compensation plans and programs (if any)
for
the Company's senior executives at a level commensurate with his position and
may be entitled to bonus payments in addition to the amount set forth
hereinabove.1
5. EMPLOYEE
BENEFITS.
(a) Benefit
Plans. The Executive
shall be eligible to participate in any employee benefit plan of the Company,
including, but not limited to, equity, pension, thrift, profit sharing, medical
coverage, education, or other retirement or welfare benefits that the Company
has adopted or may adopt, maintain or contribute to for the benefit of its
senior executives, at a level commensurate with his positions, subject to
satisfying the applicable eligibility requirements. The Company may at any
time
or from time to time amend, modify, suspend or terminate any employee benefit
plan, program or arrangement for any reason in its sole discretion.
(b) Vacation.
The
Executive shall
be entitled to an annual paid vacation in accordance with the Company's policy
applicable to senior executives from time to time in effect, but in no event
less than two weeks per calendar year (as prorated for partial years), which
vacation may be taken at such times as the Executive elects with due regard
to
the needs of the Company. The carry-over of vacation days shall be in accordance
with the Company's policy applicable to senior executives from time to time
in
effect.
(c)
Business
and Entertainment Expenses.
Upon presentation of appropriate documentation, the Executive shall
be
reimbursed for all reasonable and necessary business and entertainment expenses
incurred in connection with the performance of his duties hereunder, all in
accordance with the Company's expense reimbursement policy applicable to senior
executives from time to time in effect.
________________________
1 NOTE:
publicly held companies are
subject to the
$1,000,000 compensation deduction limitation imposed
by Internal
Revenue Code Section
162(m).
6.
TERMINATION. The
Executive's employment and the Employment Term shallterminate
on the first of the following to occur:
(a) Disability.
On the thirtieth
(30th)
day
following written notice by the Company to the Executive of termination due
to
Disability. For purposes of this Agreement, "Disability" shall mean a
determination by the Company in accordance with applicable law that due to
a
physical or mental injury, infirmity or incapacity, the Executive is unable
to
perform the essential functions of his job with or without accommodation for
180
days (whether or not consecutive) during any 12-month period.
(b) Death.
Automatically
on the
date of death of the Executive.
(c) Cause.
Immediately
upon
written notice by the Company to the Executive of a termination for Cause.
"Cause" shall mean, as determined by the Board (or its designee) (1) conduct
by
the Executive in connection with his employment duties or responsibilities
that
is fraudulent, unlawful or grossly negligent; (2) the willful misconduct of
the
Executive; (3) the willful and continued failure of the Executive to perform
the
Executive's duties with the Company (other than any such failure resulting
from
incapacity due to physical or mental illness); (4) the commission by the
Executive of any felony (or the equivalent under the law of the state of Texas)
(other than traffic-related offenses) or any crime involving moral turpitude;
(5) violation of any material policy of the Company or any material provision
of
the Company's code of conduct, employee handbook or similar documents; or (6)
any material breach by the Executive of any provision of this Agreement or
any
other written agreement entered into by the Executive with the
Company,
(d) Without
Cause. On the
thirtieth (30th) day following written notice by the Company to the Executive
of
an involuntary termination without Cause, other than for death or
Disability.
(e)Good
Reason. On the sixtieth
(60th)
day
following written notice by the Executive to the Company of a termination for
Good Reason. "Good Reason" shall mean, without the express written consent
of
the Executive, the occurrence of any the following events unless such events
are
cured (if curable) by the Company within fifteen days following receipt of
written notification by the Executive to the Company that he intends to
terminate his employment hereunder for one of the reasons set forth below:
any
material reduction or diminution (except temporarily during any period of
incapacity due to physical or mental illness) in the Executive's title,
authorities, duties or responsibilities or reporting requirements with the
Company.
7.
CONSEQUENCES
OF
TERMINATION.
(a)
Disability.
Upon
termination
of the Employment Term because of the Executive's Disability, the Company shall
pay or provide to the Executive (1) any unpaid Base Salary and any accrued
vacation through the date of termination; (2) any unpaid Annual Bonus accrued
with respect to the fiscal year ending on or preceding the date of termination;
(3) reimbursement for any unreimbursed expenses properly incurred through the
date of termination;
and
(4)
all other payments or benefits to which the Executive may be entitled under
the
terms of any applicable employee benefit plan, program or arrangement
(collectively, "Accrued Benefits").
(b) Death.
Upon
the termination of
the Employment Term because of the Executive's death, the Executive's estate
shall be entitled to any Accrued Benefits.
(c) Termination
for Cause. Upon
the termination of the Employment Term by the Company for Cause or by either
party in connection with a failure to renew this Agreement, the Company shall
pay to the Executive any Accrued Benefits.
(d)
Termination
without Cause or for Good
Reason. Upon the termination of the Employment Term by the Company
without Cause or by the Executive with Good Reason, the Company shall pay or
provide to the Executive (1) the Accrued Benefits, and (2) subject to the
Executive's execution (and non-revocation) of a general release of claims
against the Company and its affiliates in a form reasonably requested by the
Company, (A) continued payment of his Base Salary for two (2) months after
termination, payable in accordance with the regular payroll practices of the
Company, but off the payroll; and (B) payment of the Executive's cost of
continued medical coverage for two (2) months after termination (subject to
the
Executive's co-payment of the costs in the same proportion as such costs were
shared immediately prior to the date of termination).2
Payments
provided under this Section 7(d) shall be in lieu of any termination or
severance payments or benefits for which the Executive may be eligible under
any
of the plans, policies or programs of the Company.
8, NO
ASSIGNMENT. This Agreement
is personal to each of the Parties. Except as provided below, no Party may
assign or delegate any rights or obligations hereunder without first obtaining
the written consent of the other Party hereto; provided, however,
that
the
Company may assign this Agreement to any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all
of
the business or assets of the Company.
9, NOTICES.
For
the purpose of
this Agreement, notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given (1)
on
the date of delivery if delivered by hand, (2) on the date of transmission,
if
delivered by confirmed facsimile, (3) on the first business day following the
date of deposit if delivered by guaranteed overnight delivery service, or (4)
on
the fourth business day following the date delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If
to the
Executive:
At
the
address (or to the facsimile number) shown on the records of the Company If
to
the Company:
____________________
2
NOTE: typically the period for severance payments corresponds to the
length of the
noncompete and nonsolicitation
period.
00000
Xxxxxxxxx Xxxxxx, Xxxxx #000
Xxxxxxx,
Xxxxx
Telephone: (000)
000-0000
Facsimile:
(000) 000-0000
Attention: Principal
Executive Officer
With
a
copy to:
Xxxxxx
& Xxxxxx, LLP
000
Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx, 00000
Attention:
Xxxxx Xxxxxx, Esq.
Facsimile:
(000) 000-0000
or
to
such other address as either Party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
10. PROTECTION
OF THE COMPANY'S
BUSINESS.
(a) Confidentiality.
The
Executive
acknowledges that during the course of his employment by the Company (prior
to
and during the Employment Term) he has and will occupy a position of trust
and
confidence. The Executive shall hold in a fiduciary capacity for the benefit
of
the Company and shall not disclose to others or use, whether directly or
indirectly, any Confidential Information regarding the Company, except (i)
as in
good faith deemed necessary by the Executive to perform his duties hereunder,
(ii) to enforce any rights or defend any claims hereunder or under any other
agreement to which the Executive is a party, provided
that such disclosure is relevant to the enforcement of such rights or
defense of such claims and is only disclosed in the formal proceedings related
thereto, (iii) when required to do so by a court of law, by any governmental
agency having supervisory authority over the business of the Company or by
any
administrative or legislative body (including a committee thereof) with
jurisdiction to order him to divulge, disclose or make accessible such
information, provided
that the Executive shall give prompt written notice to the Company of
such requirement, disclose no more information than is so required, and
cooperate with any attempts by the Company to obtain a protective order or
similar treatment, (iv) as to such Confidential Information that shall have
become public or known in the Company's industry other than by the Executive's
unauthorized disclosure, or (v) to the Executive's spouse, attorney and/or
his
personal tax and financial advisors as reasonably necessary or appropriate
to
advance the Executive's tax, financial and other personal planning (each an
"Exempt Person"), provided,
however,
that any disclosure or use of Confidential Information by an Exempt
Person shall be deemed to be a breach of this Section 10(a) by the Executive.
The Executive shall take all reasonable steps to safeguard the Confidential
Information and to protect it against disclosure, misuse, espionage, loss and
theft. The Executive understands and agrees that the Executive shall acquire
no
rights to any suchConfidential
Information.
"Confidential
Information" shall mean information about the Company, its subsidiaries and
affiliates, and their respective clients and customers that is not disclosed
by
the Company and that was learned by the Executive in the course of
hisemployment
by the Company, including, but not limited to, any proprietary knowledge,
trade
secrets, data and databases, formulae, sales, financial, marketing, training
and
technical information, client, customer, supplier and vendor lists, competitive
strategies, computer programs and all papers, resumes, and records (including
computer records) of the documents containing such Confidential
Information.
(b) Non-Competition.
During
the
Employment Term and for the one-year period following the termination of the
Executive's employment for any reason (the "Restricted Period"), the Executive
shall not, directly or indirectly, without the prior written consent of the
Company, provide employment (including self-employment), directorship,
consultative or other services to any business, individual, partner, firm,
corporation, or other entity that competes with any business conducted by the
Company or any of its subsidiaries or affiliates on the date of the Executive's
termination of employment or within one year of the Executive's termination
of
employment in the geographic locations where the Company and its subsidiaries
or
affiliates engage or propose to engage in such business (the "Business").
Nothing herein shall prevent the Executive from having a passive ownership
interest of not more than 2% of the outstanding securities of any entity engaged
in the Business whose securities are traded on a national securities
exchange.
(c) Non-Solicitation
of Employees.
The Executive recognizes that he possesses and will possess confidential
information about other employees of the Company and its subsidiaries and
affiliates relating to their education, experience, skills, abilities,
compensation and benefits, and inter-personal relationships with customers
of
the Company and its subsidiaries and affiliates. The Executive recognizes that
the information he possesses and will possess about these other employees is
not
generally known, is of substantial value to the Company and its subsidiaries
and
affiliates in developing their business and in securing and retaining customers,
and has been and will be acquired by him because of his business position with
the Company. The Executive agrees that, during the Restricted Period, he will
not, directly or indirectly, (i) solicit or recruit any employee of the Company
or any of its subsidiaries or affiliates (a "Current Employee") or any person
who was an employee of the Company or any of its subsidiaries or affiliates
during the twelve (12) month period immediately prior to the date the
Executive's employment terminates (a "Former Employee") for the purpose of
being
employed by him or any other entity, or (ii) hire any Current Employee or Former
Employee.
(d)
Non-Solicitation
of Customers.
The Executive agrees that, during the Restricted Period, he will not,
directly or indirectly, solicit or attempt to solicit (i) any party who is
a
customer or client of the Company or its subsidiaries, who was a customer or
client of the Company or its subsidiaries at any time during the twelve (12)
month period immediately prior to the date the Executive's employment terminates
or who is a prospective customer or client that has been identified and targeted
by the Company or its subsidiaries for the purpose of marketing, selling or
providing to any such party any services or products offered by or available
from the Company or its subsidiaries, or (ii) any supplier or vendor to the
Company or any subsidiary to terminate, reduce or alter negatively its
relationship with the Company or any subsidiary or in any manner interfere
with
any agreement or contract between the Company or any subsidiary and such
supplier or vendor.
(e) Property.
The
Executive
acknowledges that all originals and copies of materials, records and documents
generated by him or coming into his possession during his employment by the
Company or its subsidiaries are the sole property of the Company and its
subsidiaries ("Company Property"), During the Employment Term, and at all times
thereafter, the Executive shall not remove, or cause to be removed, from the
premises of the Company or its subsidiaries, copies of any record, file,
memorandum, document, computer related information or equipment, or any other
item relating to the business of the Company or its subsidiaries, except in
furtherance of his duties under this Agreement. When the Executive's employment
with the Company terminates, or upon request of the Company at any time, the
Executive shall promptly deliver to the Company all copies of Company Property
in his possession or control.
(f) Non-Disparagement.
Executive
shall not, and shall not induce others to, Disparage the Company or its
subsidiaries or affiliates or their past and present officers, directors,
employees or products. "Disparage" shall mean making comments or statements
to
the press, the Company's or its subsidiaries' or affiliates' employees or any
individual or entity with whom the Company or its subsidiaries or affiliates
has
a business relationship which would adversely affect in any manner (1) the
business of the Company or its subsidiaries or affiliates (including any
products or business plans or prospects), or (2) the business reputation of
the
Company or its subsidiaries or affiliates, or any of their products, or their
past or present officers, directors or employees.
(g)
Cooperation.
Subject
to the
Executive's other reasonable business commitments, following the Employment
Term, the Executive shall be available to cooperate with the Company and its
outside counsel and provide information with regard to any past, present, or
future legal matters which relate to or arise out of the business the Executive
conducted on behalf of the Company and its subsidiaries and affiliates, and,
upon presentation of appropriate documentation, the Company shall compensate
the
Executive for any out-of-pocket expenses reasonably incurred by the Executive
in
connection therewith.
(h) Equitable
Relief and Other Remedies.
The Executive acknowledges and agrees that the Company's remedies at
law
for a breach or threatened breach of any of the provisions of this Section
10
would be inadequate and, in recognition of this fact, the Executive agrees
that,
in the event of such a breach or threatened or attempted breach, in addition
to
any remedies at law, the Company, without posting any bond, shall be entitled
to
obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available. In addition, without limiting the Company's
remedies for any breach of any restriction on the Executive set forth in this
Section 10, except as required by law, the Executive shall not be entitled
to
any payments set forth in Section 7(d) hereof if the Executive has breached
the
covenants applicable to the Executive contained in this Section 10, the
Executive will immediately return to the Company any such payments previously
received under Section 7(d) upon such a breach, and, in the event of such
breach, the Company will have no obligation to pay any of the amounts that
remain payable by the Company under Section 7(d).
(i) Reformation.
If
it is
determined by a court of competent jurisdiction in any state that any
restriction in this Section 10 is excessive in duration or scope or
is
unreasonable
or unenforceable under the laws of that state, it is the intention of the
parties that such restriction may be modified or amended by the court to render
it enforceable to the maximum extent permitted by the law of that state. The
Executive acknowledges that the restrictive covenants contained in this Section
10 are a condition of this Agreement and are reasonable and valid in temporal
scope and in all other respects.
(i)
Survival
of Provisions. The
obligations contained in this Section 10 shall survive in accordance with their
terms the termination or expiration of the Executive's employment with the
Company and shall be fully enforceable thereafter.
11.
INDEMNIFICATION.
The
Executive
shall be indemnified to the extent permitted by the Company's organizational
documents and to the extent required by law.
12. SECTION
HEADINGS AND INTERPRETATION.
The section headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement. Expressions of inclusion used in this agreement
are to
be understood as being without limitation.
13. SEVERABILITY.
The
provisions
of this Agreement shall be deemed severable and the invalidity of
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
14. COUNTERPARTS.
This
Agreement
may be executed in several counterparts, each of which shall be deemed to be
an
original but all of which together will constitute one and the same
Agreement.
15. GOVERNING
LAW AND VENUE. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of New York without regard to its conflicts
of law principles. The Parties agree irrevocably to submit to the exclusive
jurisdiction of the federal courts or, if no federal jurisdiction exists, the
state courts, located in the City of New York, Borough of Manhattan, for the
purposes of any suit, action or other proceeding brought by any Party arising
out of any breach of any of the provisions of this Agreement and hereby waive,
and agree not to assert by way of motion, as a defense or otherwise, in any
such
suit, action, or proceeding, any claim that it is not personally subject to
the
jurisdiction of the above-named courts, that the suit, action or proceeding
is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that the provisions of this Agreement may not be
enforced in or by such courts. IN ADDITION, THE PARTIES
AGREE TO
WAIVE A TRIAL BY JURY.
16. ENTIRE
AGREEMENT. This
Agreement contains the entire agreement between the Parties with respect to
the
subject matter hereof and supersedes all prior agreements, written or oral,
with
respect thereto. No agreements or representations, oral or otherwise, express
or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
17. WAIVER
AND AMENDMENT. No
provision of this Agreement may be modified, amended, waived or discharged
unless such waiver, modification, amendment or discharge is agreed to in writing
and signed by the Executive and such officer or director as may be designated
by
the Board. No waiver by either Party at any time of any breach by the other
Party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other Party shall be deemed a waiver or
similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time.
18. WITHHOLDING.
The
Company may
withhold from any and all amounts payable under this Agreement such federal,
state, local and foreign taxes as may be required to be withheld pursuant to
any
applicable law or regulation.
19. AUTHORITY
AND NON-CONTRAVENTION.
The Executive represents and warrants to the Company that he has the
legal right to enter into this Agreement and to perform all of the obligations
on his part to be performed hereunder in accordance with its terms and that
he
is not a party to any agreement or understanding, written or oral, which could
prevent him from entering into this Agreement or performing all of his
obligations hereunder.
20. COUNTERPARTS.
This
Agreement
may be executed in counterparts, each of which shall be deemed an original
but
all of which shall constitute one and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first written
above.
|
AMERICAN
SURGICAL HOLDINGS, INC.
|
|
/s/ Xxx
Xxxxxxx
|
|
By:
Xxx Xxxxxxx
|
|
Title:
President and Chief Executive
Officer
|
|
EXECUTIVE
|
|
/s/ Xxxxx
Xxxxxxxx
|
|
By:
Xxxxx Xxxxxxxx
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