EMPLOYMENT AGREEMENT
EXHIBIT 10.15
This EMPLOYMENT AGREEMENT (“Agreement”), dated as of November 25, 2004 by and between AMS Health Sciences, Inc., an Oklahoma corporation (the “Company”), and Xxxxx X’Xxxxxxxxx (“Executive”) is set forth below.
IN CONSIDERATION of the premises and the mutual covenants set forth below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive as its President and Executive hereby accepts such employment, on the terms and conditions set forth in this Agreement.
2. Term. The period of employment of Executive by the Company under this Agreement (the “Initial Term”) shall commence on November 25, 2004 (the “Commencement Date”) and shall continue through November 24, 2005; provided that this Agreement shall be reviewed annually unless either party elects not to renew this Agreement by delivering written notice of its election to the other party no later than thirty (30) days prior to the end of the current term. The Term shall constitute the “Employment Period.” The Employment Period may be terminated in accordance with Section 6 of this Agreement.
3. Position and Duties. During the Employment Period, Executive shall report directly to the Chairman of the Company’s board of directors (the ”Chairman”). Executive shall have those powers and duties normally associated with the position of a President . Executive shall devote substantially all of his working time, attention and energies (other than absences due to illness or vacation) to the performance of his duties for the Company. Notwithstanding the above, Executive shall be permitted, to the extent such activities do not interfere with the performance by Executive of his duties and responsibilities under this Agreement or violate Sections 9(a), (b) or (c) of this Agreement, to (i) serve on civic or charitable boards or committees and (ii) serve on the board of directors or other similar governing body of any other corporation or other business entity or trade organization.
4. Place of Performance. The principal place of employment and performance of duties by Executive shall be at the Company’s principal executive offices in Oklahoma City, Oklahoma. The Executive shall be permitted to commute between San Diego, California and Oklahoma City, Oklahoma.
5. Compensation and Related Matters.
6. Termination. Executive’s employment under this Agreement may be terminated during the Employment Period under the following circumstances:
(a) Death. Executive’s employment under this Agreement shall terminate upon his death.
(i) an act of felony dishonesty taken by Executive which results or is intended to result in improper personal enrichment of Executive and/or expense to the Company; or
(ii) Executive’s failure to follow a direct, reasonable and lawful written order from the Board and/or the Chairman, within the reasonable scope of Executive’s duties.
Cause shall not exist under paragraphs (i) or (ii) above unless and until the Company has delivered to Executive a copy of a resolution duly adopted by not less than three-fourths (3/4ths) of the Board (excluding Executive) at a meeting of the Board called and held for such purpose finding that in the good faith opinion of the Board, Executive was guilty of the conduct set forth in paragraphs (i) or (ii) and specifying the particulars thereof in detail. Upon receipt of the board resolution, the Executive shall have 15 days to cure, if curable, the “Cause” of the board resolution and avoid termination..
8. Compensation Upon Termination or During Disability. In the event of Executive’s Disability or termination of his employment under this Agreement during the Employment Period, the Company shall provide Executive with the payments and benefits set forth below. Executive acknowledges and agrees that the payments set forth in this Section 8, and the other agreements and plans referenced in this Agreement, constitute the sole compensation and damages for termination of his employment during the Employment Period.
5(a) until his employment is terminated pursuant to Section 6(b). In the event Executive’s employment is terminated for Disability pursuant to Section 6(b):
(i) the Company shall pay to Executive (A) his Base Salary and accrued vacation pay through the Date of Termination, as soon as practicable following the Date of Termination, and (B) provide Executive with disability benefits pursuant to the terms of any Company disability programs;
(ii) the Company shall reimburse Executive pursuant to Section 5(d) for reasonable business expenses incurred, but not paid, prior to such termination of employment; and
(iii) Executive shall be entitled to any other rights, compensation and/or benefits as may be due to Executive following such termination to which he is otherwise entitled in accordance with the terms and provisions of any plans or programs of the Company.
(i) the Company shall pay to Executive (A) his Base Salary and accrued vacation pay through the Date of Termination, as soon as practicable following the Date of Termination, and (B) Severance Pay, in equal monthly installments or a lump sum at the Company’s discretion, according to the following schedule:
Length of Employment | Months of Base Salary | ||||
1 – 6 months
|
1 month | ||||
7 – 12 months
|
5 months | ||||
13 – 24 months
|
6 months | ||||
25 – 36 months
|
12 months | ||||
(ii) the Company shall reimburse Executive pursuant to Section 5(d) for reasonable business expenses incurred, but not paid, prior to such termination of employment; and
(iii) Executive shall be entitled to any other rights, compensation and/or benefits as may be due to Executive following such termination to which he is otherwise entitled in accordance with the terms and provisions of any plans or programs of the Company.
(i) the Company shall pay Executive (or his legal representative or estate) his Base Salary and his accrued vacation pay (to the extent required by law or the Company’s vacation policy) through the Date of Termination, as soon as practicable following the Date of Termination;
(ii) the Company shall reimburse Executive (or his legal representative or estate) pursuant to Section 5(d) for reasonable business expenses incurred, but not paid, prior to such termination of employment, unless such termination resulted from a misappropriation of Company funds; and
(iii) Executive (or his legal representative or estate) shall be entitled to any other rights, compensation and/or benefits as may be due to Executive following such termination to which he is otherwise entitled in accordance with the terms and provisions of any plans or programs of the Company.
(c) Protection of Business. During the Employment Period and until the first anniversary of Executive’s Date of Termination (regardless of the reason for termination of employment), the Executive will not, directly or indirectly, on his own behalf or behalf of any third party, solicit or attempt to induce any existing customers or accounts of the Company or its affiliates to cease doing business with the Company or its affiliates. During the same time period, Executive will not, directly or indirectly, on his own behalf or on behalf of any third party, solicit or attempt to induce any employee of the Company to terminate his or her employment with the Company to be employed by Executive or a third party.
10. Arbitration. The parties agree that Executive’s employment and this Agreement relate to interstate commerce, and that any disputes, claims or controversies between Executive and the Company which may arise out of or relate to the Executive’s employment relationship or this Agreement shall be settled by arbitration. This agreement to arbitrate shall survive the termination of this Agreement. Any arbitration shall be in accordance with the Rules of the American Arbitration Association or another national arbitration service that is mutually agreeable to the parties. The arbitration shall be undertaken pursuant to the Federal Arbitration Act. Arbitration will be held in Oklahoma City, Oklahoma unless the parties mutually agree on another location. The decision of the arbitrator(s) will be enforceable in any court of competent jurisdiction. The parties agree that the arbitrator(s) may allocate administrative and arbitrator fees, the parties’ other costs and expenses of arbitration and the parties’ attorneys’ fees and require that such items be paid in any manner in which such item would have been allocated and ordered to be paid by a court of competent jurisdiction. The parties agree that punitive, liquidated or indirect damages shall not be awarded by the arbitrator(s) unless such damages would have been awarded by a court of competent jurisdiction. Nothing in this agreement to arbitrate, however, shall preclude the Company from obtaining injunctive relief from a court of competent jurisdiction prohibiting any on-going breaches by Executive of this Agreement including, without limitation, violations of Section 9.
11. Successors Binding Agreement.
12. Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered either personally or by United States certified or registered mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive:
00000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
If to the Company:
000 Xxxxxxxxx 00xx Xxxxxx
or to such other address as any party may have furnished to the others in writing in accordance with this Agreement, except that notices of change of address shall be effective only upon receipt.
13. Taxes and Withholding. All payments hereunder shall be subject to tax in accordance with the federal Internal Revenue Code, as amended from time to time, and any applicable rules or regulations promulgated thereunder and in accordance with applicable state statutes, rules and regulations. All payments shall be subject to any required withholding of Federal, state and local taxes pursuant to any applicable law, rule or regulation.
14. Miscellaneous. No provisions of this Agreement may be amended, modified, or waived unless such amendment or modification is agreed to in writing signed by Executive and by a duly authorized officer of the Company, and such waiver is set forth in writing and signed by the party to be charged. No waiver by either party hereto at any time of any breach by the other party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. The respective rights and obligations of the parties under this Agreement shall survive Executive’s termination of employment and the termination of this Agreement to the extent necessary for the intended preservation of such rights and obligations. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Oklahoma without regard to its conflicts of law principles.
15. Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
16. Entire Agreement. Except as provided elsewhere herein, this Agreement sets forth the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party to this Agreement with respect of such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.
Xxxx X Xxxx | ||
By /S/ Xxxx X. Xxxx Chairman of the Board |
||
/S/ Xxxxx X’Xxxxxxxxx Xxxxx X’Xxxxxxxxx |