EMPLOYMENT AGREEMENT
Exhibit
10.12
AGREEMENT
made as of the 25th day of May, 2007, by and between Xxxxx Xxxxxxx, MD, an
individual residing in Ft. Lauderdale, FL (hereinafter referred to as
"Executive") and THE AMACORE GROUP, INC., a Delaware corporation with offices in
Tampa, Florida (hereinafter called the "Company").
WITNESSETH
WHEREAS,
the Company desires to retain the services of Executive to render his services
to Company on the terms and conditions hereinafter set forth; and
WHEREAS,
Executive is agreeable to rendering such services to the Company on the terms
and conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Employment
Term, Duties and Acceptance
(a) Company
hereby retains Executive as Company's Chief Medical Officer for a period of
three (3) years, commencing on the date hereof (the "Employment Period"),
subject to earlier termination as hereinafter provided, to render his services
to Company upon the terms and conditions herein contained, in such executive
capacity. In such executive capacity, Executive shall report and be responsible
to the Company's Chief Executive Officer and the Company's Board of
Directors.
(b) Executive
hereby accepts the foregoing employment
and agrees to render his services to Company on a full-time basis in such a
manner as
directed by the Company's Chief
Executive Officer as to reflect Executive's best efforts to the end that the
Company's operations are properly managed. In
furtherance of Executive performing the duties assigned to him under
this Agreement, the Company agrees to provide Executive
with a support staff reasonably required by Executive so as to
enable him to carry out such duties.
2. Compensation
(a) During
the first year of the term of this Agreement, Executive shall receive
compensation of $360,000 per year. This compensation may, at
Executive's election, be accrued, in whole or in part. Executive's compensation
shall be payable in accordance with the general payroll practices of the Company
as are from time to time, in effect, less such deductions or amounts as shall be
required to be withheld by applicable law or regulation. On each yearly
anniversary date of the execution of this Agreement (hereinafter sometimes
called the "Anniversary Date," in each yearly instance) the Board of Directors
shall review the services provided by Executive to determine the amount that
Executive's salary shall be increased for the forthcoming yearly period. Such
increase shall be no less than an amount equal to the percentage increase in the
Consumer Price Index or such other similar index reflective of the cost of
living increase in the Orlando, Florida metropolitan area from the beginning of
yearly period to the end of the yearly period with respect to the Consumer Price
Index applicable to the said metropolitan area, times Executive's base
compensation in effect during the said yearly period. The sum resulting by way
of this increase to the Executive's base compensation shall, for the then
immediately succeeding period be considered the Executive's base compensation.
The Board of Directors shall also determine on an annual (fiscal or calendar
year, as the case may be) basis, the amount, if any, of bonus or incentives to
be paid to Executive. Provided, however, that Executive shall receive a special
bonus ("special bonus") in an amount equal to one (1) percent of the Company's
pre-tax profits from the preceding year (as determined by the application of
generally accepted accounting principles), up to the first one- million dollars
of such profits; plus an additional sum equal to two, and (2) percent of the
Company's pre-tax profits for all sums over one-million dollars The special
bonus shall be paid within thirty (30) days following determination thereof,
which determination shall be made as soon as practicable.
(b) Executive
agrees to sell such shares he may own in the Company that were granted to him by
the Company (as opposed to being purchased by him from another source) only in
accordance with the then existing Rule 144 selling formula for shares held more
than one year but less than two years. Unless otherwise directed by the Company,
Executive agrees to sell such shares only through Mr. Xxx Xxxxxxx, a registered
broker, or through such other broker or brokerage company designated by the
Company.
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(c) Executive
shall be entitled to reasonable paid vacation time, sick leave and time to
attend professional meetings comparable to that offered the executives in
comparable positions.
(d) Executive
shall be entitled (subject to the terms and conditions of particular plans and
programs) to all fringe benefits afforded to other senior executives of the
Company, including, but not by way of limitation, bonuses and the right to
participate in any pension, stock option, retirement and, unless otherwise
covered by a group policy (as opposed to an individual policy owned and paid for
by Executive and/or his wife and/or a company of which either of them own 100%
of stock), major medical, group health, disability, relocation reimbursement,
and other employee benefit programs made generally available, from time to time,
by the Company. The Company also agrees to obtain and pay the premiums for life,
travel and accident insurance (with a double indemnity provision).
(e)
Company shall pay or reimburse Executive for reasonable expenses incurred in the
performance of his services under this Agreement during the Employment Period,
upon presentation of expense statements, vouchers or such other supporting
documentation as may reasonably be required.
3. Disability
(a) Upon the
disability, as defined in subparagraph 3(b) hereof, of Executive during the
Employment Period, Company may, in its sole discretion, terminate Executive's
employment; provided that if the Company elects to so terminate Executive's
employment, Executive shall be entitled to receive, accrued but unpaid salary,
expense reimbursement and bonuses, the proceeds of any disability insurance
policy plus an amount from the Company monthly which, when added to the amount
received by the Executive from any disability policy in effect for the Executive
at the time of his disability will equal the Executive's salary for a
twelve-month period following the date of termination, as if the termination had
not occurred. Such termination shall have no effect on the Company's obligation
to pay the special bonus referred to hereinbefore. Provided, however, in the
event Executive partially perform and discharge the duties previously performed
by him for Company, nothing herein shall prevent the Executive from continuing
his duties in a part-time capacity, at a level of Compensation to be determined
at that time.
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(b) For
purposes of this Agreement the term "disability" shall mean Executive's
inability to continue to materially and substantially perform and discharge the
duties previously required of him on behalf of the Company for an aggregate
period exceeding three (3) consecutive months within any twelve (12) month
consecutive period.
(c) In
the event of a dispute between the parties as to what constitutes a disability,
such dispute shall be finally determined by a person mutually agreed upon by
Executive and Company. If a mutually acceptable person cannot be selected, such
designations shall be made by Executive and Company each choosing a person,
which person shall then mutually select a third person (collectively called the
"panel"). The panel's determination shall be made by majority vote and such
determination shall be deemed binding and conclusive. The parties agree to fully
cooperate with whatever procedures and examinations may be required in order to
allow the panel to make its determination.
4. Termination
of Employment
(a) (i)
In the event Fifty (50) Percent or more of the equity securities or all or
substantially all of the assets of the Company are acquired by any single person
or identifiable group, as defined by the applicable rules and regulations under
the Security and Exchange Act
of 1934, as amended
and in the further event that Executive's employment is terminated, by either
the Company or the Executive, within twelve (12) months following such event,
except if such termination is by reason of "cause" (as that term is defined at
paragraph 4(c) hereafter, or (ii) in the event Executive terminates his
employment by reason of the uncured breach of this Agreement by Company
("cause"), then, on the termination date, Company shall pay (or issue, as the
case may be) to Executive a lump
sum amount equal to the aggregate of (i) accrued but unpaid salary, if
any; (ii) accrued but unpaid expenses, if any; (iii) accrued but unpaid bonuses,
if any; (iv) unissued warrants, if any; and (v) the total compensation which
would have been paid to Executive through three full years of compensation from
the date of termination which sum may, at Company's election, be paid in twelve
(12) equal monthly
installments. If the Executive intends to terminate his employment with the
company for "cause", the "cause" shall be specified in a written notice sent by
Executive to the Company, and the Company shall be afforded thirty (30) days or
longer, if reasonably required, to cure such breach, if such breach is capable
of being cured.
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(b) In
the event Fifty (50) Percent or more of the equity securities or all or
substantially all of the assets of the Company are acquired by any single person
or identifiable group, as defined by the applicable rules and regulations under
the Security and Exchange Act of 1934, as amended, all unvested securities and
benefits attributable to the Executive will immediately vest. In addition, with
respect to any securities of the Company or rights to securities in the Company
vesting in Executive as a result of this Article 4, the Company shall advise
Executive by written notice at least four weeks prior to the Company's filing of
one or more registration statements under the Securities Act of 1933, as amended
(or any successor form covering securities) to be offered and sold to the public
generally, and shall, upon request of Executive, include in any such
registration statement such securities of Executive as he may request. The
foregoing shall include common stock of the Company to which Executive may be
entitled by way of his exercise of any stock options and/or the exercise of
warrants.
(c) In
the event of misconduct in office by Executive
in the performance of his duties hereunder (which shall hereinafter be referred
to as "Termination for Cause"), Company may terminate this Agreement by giving
two (2) weeks prior written notice to Executive identifying the cause of
termination and specifying the effective date of such termination. If Executive
is subjected
to Termination for Cause, then such "cause" shall be specified in such
notice and Executive shall be afforded thirty (30) days or longer, if reasonably
required, to cure such breach, if such breach is capable of being cured. If
Executive is unable to cure or if terminated pursuant to the provisions of
paragraph "4.(c)", Company shall pay to Executive the aggregate of (i) accrued
but unpaid expenses, if any; and (ii) the net salary compensation which would
have been paid to Executive through the date of termination. Furthermore, in
that event any warrants to be issued pursuant to this Agreement, and any options
granted pursuant to plans then applicable to Executive which have not then
vested shall be forfeited as of the termination date.
(d) The
failure of Executive's representations herein to be materially accurate shall
give the Company the right to terminate Executive's engagement.
(e) In
the event Executive resigns or is terminated as an employee of Company,
Executive hereby agrees that his position(s) as officer and director of the
Company shall automatically end as of the date of his resignation or termination
of employment.
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5. EXECUTIVE
REPRESENTATIONS
Executive
represents and warrants to the Company that:
(a) He
has full right, power and authority to enter into this Agreement and perform the
services and directions given to him by the Company's Chief Executive Officer,
consistent with Executive's position of Chief Financial Officer, free of any
further obligation to any prior employer.
(b) The Executive is not
subject to the restrictions of any restrictive covenants entered into
between or among the Executive and other prior employer(s).
6. CONFIDENTIALITY
(a) Executive
agrees to execute Company's standard form of Confidentiality Agreement as
prepared by Counsel to Company.
(b) Executive's
covenants contained herein shall survive the termination or expiration of this
Agreement.
7. TERMINATION
OF AGREEMENT
This
Agreement shall, in addition to other provisions affecting termination,
terminate on the occurrence of any of the following events:
(a) Cessation
of the Company's business;
(b) Dissolution
of the Company; or
(c) The
voluntary agreement of the parties hereto.
8. NOTICES
All
notices, requests, demands, deliveries and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed, postage
prepaid, registered or certified mail, return receipt requested to the parties
at the addresses (or at such other address for a party as shall be specified by like notice)
specified on the first page of this Agreement.
9. WAIVER
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The
failure of either party at any time or times to require performances of any
provision hereof shall in no manner effect the right at a later time to enforce
the same. To be effective, any waiver must be contained in a written instrument
signed by the party waiving compliance by the other party of the term or
covenant as specified. The waiver by either party of the breach of any term or
covenant contained herein, whether by conduct or otherwise, in any one or more
instances, shall not be deemed to be, or construed as, a further or continuing
waiver of any such breach, or a waiver of the breach of any other term or
covenant contained in this Agreement.
10. GOVERNING
LAW
This
Agreement shall be governed by the laws of the Sate of Florida, which shall have
exclusive jurisdiction over any claims or disputes arising from the subject
matter contained herein without regard to any conflict of laws
provision.
11. COMPLETE
AGREEMENT
This
Agreement constitutes the complete and exclusive agreement between the parties
hereto which supersedes all proposals, oral and written, and all other
communications between the parties relating to the subject matter contained
herein.
12. SEVERABILITY
If any of
the provisions of this Agreement are held to be invalid,
illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
13. EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS
This
Agreement may not be assigned,
transferred or otherwise
inure to the benefit of any third person, firm or corporation by
operation of law or otherwise, without the written consent by the other party
hereto, except as herein specifically provided to the contrary.
14. MODIFICATION
This
Agreement may only be amended, varied or modified by a written document executed
by the parties hereto.
15. FURTHER
INSTRUMENTS
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The
parties hereto agree to execute and deliver, or cause to be executed and
delivered, such further instruments or documents and take such other action as
may be required to effectively carry out the transactions contemplated
herein.
16. INDEMNIFICATION
Except
for a claim, demand, suit, action or judgment asserted by Protective against
Executive and/or the Company, in addition to any liability insurance to be
provided the Executive, the Company will indemnify Executive from any and all
claims, demands, suits, actions or judgments which hereafter may by asserted,
instituted or recorded by any person, firm or corporation for the duration of
this Agreement and for a six (6) year period following the termination of said
Agreement as defined in paragraph 4. The foregoing indemnity shall be
enforceable only with respect to claims made against Executive with respect to
all expenses, losses, charges and attorney's fees sustained or incurred by the
Executive in defending any suit, action or other proceeding brought against the
Executive, directly or indirectly, arising out of Executive's employment by
Company.
17. BOARD
APPROVAL
This
Agreement is subject to and conditioned upon the approval of the Company's Board
of Directors.
IN
WITNESS WHEREOF, the
parties hereto have executed this Agreement this 25th day of May,
2007.
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By:
/s/ Xxxxx X.
Xxxxxx
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By:
/s/ Xxxxx
Xxxxxxx
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Xxxxx
X. Xxxxxx
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Xxxxx
Xxxxxxx, MD
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Chief
Executive Officer
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