EXHIBIT 99.2
EMPLOYMENT AGREEMENT
AGREEMENT dated the 20th day of September, 2000, between Xxxx Xxxxxxx
("Employee") and America Service Group Inc., a Delaware Corporation (the
"Company").
WHEREAS, the Company seeks to employ the Employee; and
WHEREAS, the Employee accepts the positions contemplated herein;
NOW, THEREFORE, the parties hereby agree as follows:
1. Employment and Duties. The Company hereby employs the Employee as
Executive Vice President of the Company and President and CEO of Secure Pharmacy
Plus, Inc. and/or such other offices and duties as the Company shall reasonably
determine from time to time, consistent with Employee's responsibilities.
Employee shall perform the duties and services of the offices and titles for
which he is employed from time to time hereunder.
2. Performance. From the date hereof, Employee agrees to actively devote
all of his time and effort during normal business hours as agreed with the
Company, to the performance of his duties hereunder and to use his reasonable
best efforts and endeavors to promote the interests and welfare of the Company.
3. Term. The term of Employee's employment hereunder shall commence as of
the date hereof and shall continue as an employment at will unless terminated by
written notice from either party to the other at least thirty (30) days prior to
termination.
4. Compensation. For all services rendered by Employee, the Company agrees
to pay Employee from and after the date hereof: (1) a salary (the "Base Salary")
at an annual rate of not less than One Hundred Eighty-Five Thousand Dollars and
No/100's, payable in such installments as the parties shall mutually agree; plus
(ii) such additional compensation as the Compensation Committee of the Board
(the "Committee") shall from time to time determine.
5. Employee Benefits. During the period of his employment under this
Agreement, Employee shall be entitled to vacation, insurance, and other
employment benefits customarily, provided by the Company to its executives,
including increased or changed benefits as are from time to time provided to the
Company's executives generally.
6. Expenses. The Company shall promptly pay or reimburse Employee for all
reasonable expenses incurred by him in connection with the performance of his
duties and responsibilities hereunder, including, but not limited to, payment or
reimbursement of reasonable expenses paid or incurred for travel and
entertainment relating to the business of the Company.
7. Termination.
(a) Termination for Cause. Employee may be terminated from his
employment hereunder, either before Term End or thereafter, and without advance
notice, by the Company for "cause". For purposes hereof, "cause" shall mean: (i)
violation of the material terms of this Agreement, (ii) intentional commission
of an act, or failure to act, in a manner
which constitutes dishonesty or fraud or which has a direct material adverse
effect on the Company or its business; (iii) Employee's conviction of or a plea
of guilty to any felony or crime involving moral turpitude; (iv) continued
incompetence, as determined by the chief executive officer of the Company, using
reasonable standards; (v) drug and/or alcohol abuse which impairs Employee's
performance of his duties or employment; (vi) breach of loyalty to the Company,
whether or not involving personal profit, as determined by the chief executive
officer of the Company using reasonable standards; or (vii) failure to follow
the directions of the chief executive officer of the Company within 20 days
after notice to Employee of such failure provided that the directions are not
inconsistent with Employee's duties and further provided that Employee is not
directed to violate any law or take any action that he reasonably deems to be
immoral or unethical.
(b) Disability, Death. If Employee shall fail to or be unable to perform
the duties required hereunder because of any physical or mental infirmity, and
such failure or inability shall continue for any six (6) consecutive months
while Employee is employed hereunder, the Company shall have the right to
terminate this Agreement. Except as otherwise provided herein, this Agreement
shall terminate upon the death of Employee, and the estate of Employee shall be
entitled to receive all unpaid amounts due Employee hereunder to such date of
death.
(c) Termination Without Cause. The Company shall have the right to
terminate the employment of Employee at any time, without cause, cause being
determined under Section 7(a), upon thirty (30) days advance written notice.
(d) Change in Control. For purposes of this Agreement, a "change in
control of the Company" shall mean (a) a change in control of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation l4A promulgated under the Securities Exchange Act of 1934 ("Exchange
Act"); provided however, that without limitation, such a change in control shall
be deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) (2) of the Exchange Act) other than Employee or any other person
currently the beneficial owner of 10% or more of the outstanding common stock of
the Company, becomes the beneficial owner, directly or indirectly, of securities
of the Company representing 50% or more of the combined voting power of the
Company's then outstanding securities and (b) as a result of such change in
control Employee will not be offered a continuation of his job after such change
in control.
(e) Voluntary Termination. Employee may voluntarily terminate his
employment hereunder at any time, for any reason or for no reason.
(f) Termination Compensation. If Employee's employment hereunder is
terminated pursuant to Sections 7(a), 7(b) or 7(e) of this Agreement, the
Company shall pay the Employee his full base salary through the Termination
Date, plus, within five (5) business days of the Termination Date, any bonuses,
incentive compensation, or other payments due which pursuant to the terms of any
compensation or benefit plan have been earned or vested at of the Termination
Date. If Employee's employment is terminated by the Company under Section 7(c)
without cause, or if there is a change in control of the Company as defined in
Section 7(d), all unexercised options granted to Employee under the Company's
Incentive Stock Plan or Amended Incentive Stock Plan shall accelerate and shall
immediately vest. If Employee's
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employment is terminated pursuant to Sections 7(c) or 7(d) of this Agreement,
the Company shall pay the Employee the following:
(i) within five (5) business days of the termination, his full
base salary through the Termination Date, plus any bonuses, incentive
compensation, or other payments due which pursuant to the terms of any
compensation or benefit plan have been earned or vested as of the
Termination Date;
(ii) within five (5) business days of the termination, to
compensate for all accrued but unpaid leave such as holidays and
vacation under the Company's paid leave plan, an amount equal to the
Employee's then current base salary multiplied by the product of (A)
the total number of leave days accrued, divided by (B) the total
number of work days in the fiscal year in which the Termination Date
occurs;
(g) as of the termination pursuant to Section 7(b), 7(c) or 7(d), a
continuation, on a monthly basis, of Employee's annual base salary for one year
following the Termination Date.
8. Covenant Not to Compete, Nonemployment, Noninducement.
(a) Employee acknowledges that in the course of his employment he will
become familiar with the Company and its affiliates' confidential information
concerning the Company and its affiliates and that his services are of special,
unique and extraordinary value to the Company and its affiliates. Therefore,
Employee agrees that, during his employment with the Company, and for one year
after Employee ceases to perform duties hereunder, neither Employee nor any
company with which Employee is affiliated as an employee, consultant or
independent contractor, will directly or indirectly (A) engage in any business
similar to the Business of the Company, as described below, anywhere in the
United States of America, or have interest directly or indirectly in any
Business; provided, however, that nothing herein shall prohibit Employee from
(i) owning in the aggregate not more than 5% of the outstanding stock of any
class of stock of a corporation so long as Employee has no active participation
in the business of such corporation; (ii) affiliating with any company which may
participate in the Business, so long as that participation at the time of
affiliation aggregates less than 10% of such company's revenue; or (iii)
directly or through an affiliate, acquiring, merging or otherwise gaining
control, or purchasing an interest in an organization as long as the Business
represents less than 10% of the acquiree's revenue at the time of the
transaction, (B) employ or retain as an independent contractor any employee of
the Company, or (C) recruit, solicit or otherwise induce any employee of the
Company to discontinue such employment relationship. For purposes hereof the
"Business" shall consist of (A) delivery of pharmaceuticals and supplies to
correctional facilities, and (B) any other business in which the Company is
significantly engaged as of the date that Employee ceases to perform duties
hereunder.
(b) If, at the time of enforcement of this Section 8 a court shall hold
that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for the
stated duration, scope or area.
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(c) In the event of the breach by Employee of any of the provisions of
this Section 8, the Company, in addition and supplementary to other rights and
remedies existing in its favor, may apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce or prevent any violations of the provisions hereof.
9. Notices. All notices hereunder, to be effective, shall be in writing and
shall be deemed delivered when delivered by and or when sent by first-class,
certified mail, postage and fees prepaid, to the following addresses or as
otherwise indicated in writing by the parties;
(i) If to the Company:
America Service Group Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
(ii) If to Employee;
Xxxx Xxxxxxx
Secure Pharmacy Plus, Inc.
000 Xxxx Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
10. Assignment. This Agreement is based upon the personal services of
Employee and the rights and obligations of Employee hereunder shall not be
assignable except as herein expressly provided. This Agreement shall inure to
the benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, and distributees,
devisees and legatees. If the Employee should die while entitled to any payments
hereunder, any amounts would still be payable to his estate hereunder as if he
would have continued to live. All such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Employee's devisee, legatee or other designee and if there is no such devisee,
legatee or designee, to the Employee's estate.
11. Entire Agreement. This Agreement supersedes all prior understandings
and agreements with respect to the provisions hereof and contains the entire
agreement of the parties and may be amended only in writing, signed by the
parties hereto.
12. Severability. The provisions of this Agreement are severable, and the
invalidity of any provision shall not affect the validity of any other
provision. In the event that any arbitrator or court of competent jurisdiction
shall determine that any provision of this Agreement or the application thereof
is unenforceable because of the duration or scope thereof, the parties hereto
agree that said arbitrator or court in making such determination shall have the
power to reduce the duration and scope of each provision to the extent necessary
to make it enforceable, and that the Agreement in its reduced form shall be
valid and enforceable to the full extent permitted by law.
13. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the
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Employee's continuing or future participation in any benefit, bonus, incentive
or other plan or program provided by the Company (except for any severance or
termination policies, plans, programs or practices) and for which the Employee
may qualify, nor shall anything herein limit or reduce such rights as the
Employee may have under any other Agreement with the Company. Amounts which are
vested benefits or which the Employee is otherwise entitled to receive under any
plan or program of the Company shall be payable in accordance with such plan or
program, except as explicitly modified by this Agreement.
14. Governing Law. This Agreement shall be construed under the governed by
the internal laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
a binding contract as of the day and year first above written.
AMERICA SERVICE GROUP INC.
By: /s/ Xxxxxxx Xxxxxxxx
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EMPLOYEE:
By: /s/ Xxxx Xxxxxxx
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