Exhibit 10.24
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into effective
December 6, 2000 (the "Effective Date") between DYNACQ INTERNATIONAL, INC., a
Nevada corporation (the "Company"), and XXXXX X. XXXXXX, of 0000-X Xxxxx Xxxx,
Xxxxxxxx, Xxxxx 00000 ("Employee"). All capitalized terms not defined herein
shall have the meanings ascribed to such terms in the "Merger Agreement" (as
defined below). This Agreement is one of several contemplated by the Merger
Agreement and related agreements (the "Merger Documentation"). The Company by
this Agreement employs Employee and Employee accepts employment on the terms and
conditions that follow:
1. POSITION; DUTIES; PRINCIPAL OFFICE. Employee will be employed
with the titles, positions, and responsibilities (the "Duties") of Vice
President-Operations and Strategic Planning of the Company and she shall serve
as one of three (3) Directors on the Board of Directors of Surgi+Group, Inc., a
Texas corporation and a wholly owned subsidiary of the Company ("SGI" f/k/a DII
New Corp., a Texas corporation) into which the former Texas corporation known as
Surgi+Group, Inc. (the "Target") was merged (the "Merger) on February 7, 2001
(the "Effective Time") and in connection therewith DII New Corp. as the
surviving corporation amended its Articles of Incorporation pursuant to the
Articles of Merger to change its name to Surgi+Group, Inc. (the same "SGI" as
referred to above) as described in the Agreement and Plan of Merger (the "Merger
Agreement") by and among the foregoing parties and the shareholders of Target.
This Employment Agreement shall continue to be effective, as well as the "ISO
Agreement"(defined below) whether or not the Merger becomes effective at the
Effective Time or any later date.
Employee shall perform her Duties to the best of her ability and with
diligence and competence. Her Duties shall include such executive duties on
behalf of the Company and its subsidiaries or affiliates as may from time to
time be assigned to her by the Board of Directors of the Company, its CEO or
President or any other senior officer of the Company. Employee shall devote her
full time, attention, loyalty and energies to the business of the Company, and
shall not, during the term of this Agreement, be engaged in any other business
activity whether or not such business activity is pursued for gain, profit or
other pecuniary advantages; but this shall not be construed as preventing
Employee from investing her assets in stocks, bonds, commodities or other
securities or forms of passive investments, provided that such investments do
not detract from her devotion of time or attention to the Company and will not
require any services on the part of Employee in the operation of the affairs of
the companies or entities in which such investments are made. Employee further
agrees that during the term of this Agreement, she will act exclusively for the
Company performing services in the field of healthcare services and, in
particular, the development and expansion of the Company's ambulatory surgical
center ("ASC") business. Employee shall not solicit business opportunities for
any other persons or entities or for personal gain (except for passive
investments of the type referred to above). Employee shall follow the Company's
rules and regulations applicable to its employees. Employee may devote
reasonable time to participating in professional, educational, philanthropic,
public interest and social and charitable activities provided that such
activities do not materially interfere with the regular performance of her
Duties and responsibilities hereunder.
Employee shall have day-to-day authority and control over the
development of the Company's ASC business and shall form a strategic business
plan and goals for the direction of such business group and shall have such
powers, duties, authority and responsibility usually incident to the positions
and office of a senior executive officer of a public corporation in charge of
the strategic growth and development of its core business division. Employee
shall supervise the growth and strategic planning for the Company's ASC
development subsidiary SGI and shall work closely with its President, Xxxxx X.
Xxxxxxx, who shall report to the Company through Employee.
Employee shall perform her Duties at the principal offices of the
Company located in Houston, Texas, and her primary residence currently is and
shall be in Houston, Texas. Employee shall also be required to travel as
necessary to develop the Company's ASC business nationwide.
2. SALARY. Employee will be paid an annual salary (the "Base
Salary") of $120,000, payable in accordance with the normal payroll practices of
the Company.
3. TERM. The term of employment under this Agreement shall be a
period of three (3) years commencing on the Effective Date of this Agreement,
and ending on the third anniversary of such date, unless earlier terminated as
provided in this Agreement.
4. EXPENSES. Employee will be reimbursed for all reasonable expenses
incurred in the performance of Employee's duties and Employee will receive an
expense grant of $3,300 per month; any undocumented or documented expenses not
in accordance with the Company's standard expense policies shall be accounted
for as required by the Company's policies and applicable legal requirement.
5. EMPLOYEE BENEFITS AND VACATION. Employee will be entitled to
participate in the Company's health plan and in any other benefit plans provided
by the Company to its employees, subject to Employee's qualification to
participate on the same basis as other employees (length of service, health
status, etc.). In addition, Employee shall be entitled to a minimum three (3)
weeks of paid vacation per year, and additional time if needed and agreed to by
the CEO.
6. EXECUTIVE BENEFITS. Employee will be provided an automobile
allowance of $750.00 per month to purchase and/or lease an automobile of recent
make that befits her professional and business status with the Company and shall
be eligible to participate in the Company's executive bonus plans or programs
which may be adopted from time-to-time by the Company on the same or a similar
basis with the other executive officers of her level and productivity, subject
to the final determination and approval of the Compensation Committee of the
Board of Directors in its sole discretion in view of Employee's existing
benefits, bonus participation, salary, stock options and other remuneration, all
of which shall be considered.
7. INCENTIVE STOCK OPTION GRANT - UPON EMPLOYMENT. Employee is hereby
granted an incentive stock option grant the ("Option") pursuant to the ISO
Agreement referred to below under the Dynacq International, Inc. Year-2000 Stock
Incentive Plan a copy of which has been provided to Employee to purchase 100,000
shares of the Company's common stock, $.001 par value (the "Common Stock") at an
exercise price equal to the Fair Market Value as defined in Section 2.22 of the
Stock Plan ($8.875 per share) which represents the closing sales price per share
on the date the Company and Employee agreed to the material Employment Agreement
terms and material Option terms, including the number thereof, the expiration
date for vesting and exercise, the exercise price, and other terms and
conditions on December 6, 2000. The right to purchase Common Stock issuable
pursuant to the Option (the "Option Shares") will vest over a three-year period
with: (i) 30% vesting after the first full year of employment; (ii) 30% vesting
after the second full year of employment; and (iii) 40% vesting after the third
full year of employment. Except as specifically provided to the contrary in the
event of termination of Employee without cause in years two and three of the
vesting period as set forth in the ISO Agreement, vesting shall be contingent
upon the achievement of the "Final Performance Goals" of the Company as defined
and set forth in the Incentive Stock Option Agreement entered into between the
Company and Employee effective December 6, 2000 (the "ISO Agreement"), a copy of
which is attached hereto as EXHIBIT A and incorporated herein by reference.
Notwithstanding anything in this Agreement to the contrary with respect to the
grant of the Option, the terms thereof, the rights and obligations of Employee
with respect thereto or any ambiguity, conflict, interpretive question or matter
not specifically addressed and answered herein which rise out of this Employment
Agreement, the ISO Agreement or the Stock Plan (the "ISO Issues") the terms of
the Stock Plan shall first control, secondly the terms of the ISO Agreement
shall control subject to the terms of the Stock Plan and lastly the terms of
this Employment Agreement shall control. If ISO Issues remain after reviewing
the foregoing agreements the Employee and Company agree that the Compensation
Committee (the "Committee") shall be entitled to resolve any ISO Issues as
provided for in Section 3 of the Stock Plan and elsewhere therein. In addition,
the Company shall cause its Compensation Committee to provide Employee with
evidence of its separate and formal approval acting in its official capacity of
the ISO Agreement and this Agreement, although its members have previously
approved the ISO Agreement, the Employment Agreement, and all other Merger
documentation (with the exception of Schedule 1 to the ISO Agreement which has
not been completed, but which shall be completed as to the Final Performance
Goals on or before March 9, 2001.
If Employee and the Company are not able to agree within the thirty
(30) day period ending March 9, 2001, as to the Final Performance Goals to be
utilized in connection with the performance vesting requirements of the Option,
each of Xxxx Xxxx, Xxxxxx Xxxx and Employee shall submit a written position
paper outlining their material concerns and proposals including what has been
previously agreed to (if in writing) and the Compensation Committee shall
conclusively determine the Final Performance Goals to include in SCHEDULE 1 to
the ISO Agreement in their sole discretion, which goals may include, but are not
limited to:
a. Net Profit or Profit Growth.
b. Revenue Growth.
c. EPS or EPS Growth.
d. Return on Equity or Assets.
e. The number of ASC's acquired and the number of start-up denovo
ASC developments.
f. Overall compensatory arrangements within the industry including
performance goal benefits available under benefit plans for
similarly situated public companies.
The Final Performance Goals may be subject to yearly change as approved by the
Compensation Committee and Employee. The Compensation Committee shall be
authorized in advance to have prepared a peer review compensation survey by a
reputable executive benefits consulting firm comparing the benefits and
remuneration provided by other public companies of similar size and success to
those provided by the Company for its executive officers and directors.
8. TERMINATION OF EMPLOYMENT - WITHOUT CAUSE. If Employee is
terminated without cause, all of Employee's Options outstanding under the ISO
Agreement (but only to the extent specifically provided for therein) and/or the
Stock Plan (if not previously forfeited and/or vested and subject to the terms
of the ISO Agreement) on the date of such termination shall immediately vest and
become immediately and fully exercisable for a period of three (3) months from
the date of termination, and Employee will receive six months severance pay
(based on Employee's base salary during the year of termination) within 30 days
of such termination in addition to the consideration payable pursuant to Section
15 below for Employee's Non-Compete Covenant, if the covenant is not waived by
the Company in its sole and absolute discretion.
9. CHANGE OF CONTROL - In the event of a "Change in Control", as
defined in the Stock Plan ("Change in Control"), all of Employee's outstanding
incentive stock options will immediately vest and become immediately and fully
exercisable, as provided herein or in any stock-option or incentive agreement or
in the Stock Plan, whichever shall provide the greatest benefit to Employee as
Employee may elect, and if Employee is terminated within six (6) months
following the Change-in-Control (and the Company shall use its best efforts to
require the corporation acquiring control to assume the terms of this Agreement)
other than for cause, death or disability, Employee will receive six (6) months
severance pay in addition to the consideration provided for in Section 15 below
for Employee's Non-Compete Covenant, if the covenant is not waived by the
Company or its legal successor in interest in its sole and absolute discretion.
10. EMPLOYMENT AGREEMENT. At such time as the Company enters into
employment and/or incentive agreements with its key employees, Employee shall
have the opportunity to negotiate for substantially equivalent terms with the
Company and the Company shall negotiate in good faith with Employee to achieve a
result in the best interests of the Company and its shareholders; provided,
however, the terms of this Employment Agreement shall not be changed unless
Employee and the Company (through the Compensation Committee) enter into a new
written agreement, duly executed by both parties, in form and substance
satisfactory to each in their sole and absolute discretion.
11. DIRECTORS AND OFFICERS INSURANCE. As an executive officer,
Employee will be provided with evidence of adequate director and officer
insurance coverage when and if obtained by the Company upon terms and at a cost
acceptable to the Company in its sole discretion. If not obtained by August 7,
2001, the Company and Employee shall negotiate an Indemnification Agreement
providing Employee with the maximum indemnification provided by Nevada or other
applicable law and such other permissible benefits, including the advancement of
expenses to Employee to cover reasonable defense fees and costs, to the maximum
extent permitted by applicable laws.
12. PROPRIETARY INFORMATION.
(a) In connection with the performance of the Duties, the
Employee acknowledges that she may acquire Proprietary
Information (as defined below) from the Company and/or its
affiliates (collectively the "Company Group"). The use of
the word Company in this Agreement shall also include when
referring to the rights or obligations of the Company or
Employee
hereunder shall include the Company Group as appropriate or
applicable in the context used. Accordingly, the Employee
agrees that all Proprietary Information acquired by her
hereunder shall be safeguarded with the same degree of
control and care as a reasonably prudent person would
exercise with respect to his or her own similar information,
and that the same shall be returned to the owner of such
Proprietary Information upon the owner's request.
(b) The Employee agrees (i) to treat in strict confidence any
proprietary or other confidential information received from
the Company Group (whether tangible or intangible),
including, without limitation, client lists, lists of
referral sources, business prospects, pricing and cost
information, operating results of individual healthcare
facilities, employees' names, compensation and other
information, regulatory and legal issues, accounting and
reporting matters, trade secrets, patents, copyrights,
concepts, inventions, processes, formulas, know-how, data
and information, whether such information is of a technical
or a business nature, and all copies of any of the foregoing
whether or not in writing or in any electronic or computer
storage medium ("Proprietary Information"), (ii) that she
will not disclose any Proprietary Information to third
parties, except as specifically permitted herein, and (iii)
that she will not use any Proprietary Information for any
purpose not contemplated by this Agreement without the
written permission of the Company, including any use for
personal gain or benefit whether directly or indirectly.
(c) Information that is to be excluded from the term
"Proprietary Information" is any information that:
(i) has been published or is otherwise in the public
domain at the time of the disclosure;
(ii) becomes public through no fault of Employee or of the
party receiving such information;
(iii) was already in the possession of Employee prior to
employment or the party receiving such information is
rightfully in possession thereof without knowledge
of, or a breach of, any applicable confidentiality
requirements or other restrictions;
(iv) is obtained from a third party who is lawfully in
possession of said information and is not subject to
a contractual or fiduciary relationship to the party
receiving or providing such information or any other
person; or
(v) is disclosed pursuant to a mandatory requirement of a
governmental agency or by operation of law.
(d) The provisions of this Section 12 shall apply for so long as
Employee provides services to the Company Group in any
capacity, whether or not pursuant to this Agreement, and
shall survive the termination of this Agreement for so long
as the information remains Proprietary Information.
13. INTELLECTUAL PROPERTY RIGHTS. Except for Proprietary Information
owned by the Employee which is designated in writing to the Company prior to the
execution hereof as EXHIBIT B hereto, the Employee agrees that all ideas,
proposals, valuation processes, ASC economic models, profiles or operating
processes or architectural designs, insights, knowledge, writing, drawings,
inventions, designs, parts, machines or processes developed as a result of, or
in the course of, the Duties rendered to the Company Group or by the Employee
during the term of this Agreement, whether or not patentable or subject to
copyright, shall be the property of the Company Group. Subject to the foregoing
exception, the Employee herewith assigns all rights in the foregoing
intellectual property to the Company Group and shall supply all assistance, both
while an Employee of the Company and after leaving the Company, reasonably
requested in securing for the Company Group's benefit any patent, copyright,
trademark, service xxxx, license, right or other evidence of ownership of any
such intellectual property, and shall provide full information
regarding any such item and execute all appropriate documentation prepared by
the Company Group in applying or otherwise registering, in the name of the
appropriate entity comprising part of the Company Group, all rights, to any such
item. The Employee shall prominently xxxx all written information with an
appropriate legend that the material contained therein is the property of the
Company and that the information is confidential and proprietary and not to be
reproduced or used by other parties. The Company Group shall have the right to
sell, or grant licenses to use, any of such intellectual property to others,
including, without limitation, any such intellectual property derived from any
business practices journal prepared in connection with the Duties provided. If
the Employee's assistance is required after the departure of the Employee from
the Company, the Company will reimburse Employee for any out-of-pocket expenses
incurred in the performance of the needed assistance.
14. TERMINATION OF EMPLOYMENT.
(a) FOR CAUSE. Nothing herein shall prevent the Company from
terminating the Employee, without prior notice, for "Cause" (as
hereinafter defined), in which event the Employee shall be
entitled to receive her Base Salary on a pro rata basis to the
date of termination. In the event of such termination for Cause,
all other rights and benefits the Employee may have under any
employee benefit, bonus and stock option plans and programs of
the Company shall be determined in accordance with the terms and
conditions of Section 15 of this Agreement and any loans,
advances or undocumented expenses (not previously included by the
Company in a W-2 or Form 1099) shall be immediately due and
payable. The term "Cause" shall mean (i) the Employee has
committed a willful serious act, such as fraud, embezzlement or
theft, against the Company, intending to enrich herself at the
expense of the Company, (ii) the Employee has been convicted of a
felony (or entered a plea of nolo contendere to a felony charge),
(iii) the Employee has engaged in conduct that has caused
material injury, monetary or otherwise, to the Company, including
the violation of any material law or regulation applicable to the
Company, (iv) the Employee, in carrying out her Duties hereunder,
has been guilty of gross neglect or gross misconduct, or any act
or omission involving intentional misconduct or a knowing
violation of law, (v) the Employee has refused to carry out her
Duties as they now exist or as changed from time-to-time or to
follow the reasonable written direction of the Board of Directors
of the Company or any senior officer and, after receiving written
notice to such effect from the Compensation Committee, and the
Employee fails to cure the existing problem within fifteen (15)
days, with notice not being required if it is determined the
problem is not curable, (vi) the Employee has materially breached
this Agreement and has not remedied such breach within fifteen
(15) days after receipt of written notice from the Compensation
Committee that a breach of this Agreement has occurred (written
notice being required only if the breach can be remedied or
cured), or (vii) the Employee has breached (as determined by
legal advice of independent outside counsel appointed by the
Compensation Committee) any legal duties to the Company provided
by the laws of its state of incorporation, whether Nevada or any
other state (if reincorporated by merger or otherwise to another
state), including, primarily, those applicable to officers and
directors including, but not limited to, breach of the duty of
loyalty, receiving improper benefits, not disclosing material
conflicts of interest or an act or omission for which the
liability of an officer or director is expressly provided for by
statute.
(b) DEATH. If the Employee dies, this Agreement shall terminate on
the date of death. In the event of such termination due to death,
all other rights and benefits the Employee (or her estate) may
have under the employee benefit, bonus and/or stock option plans
and programs of the Company, generally, shall be determined in
accordance with the terms and conditions of such plans and
programs.
(c) DISABILITY. In the event the Employee suffers a "disability" (as
hereinafter defined), this Agreement shall terminate on the date
on which the Disability occurs and the Employee shall be entitled
to her Base Salary for six (6) months offset by any Disability
pay under the Company's Disability insurance program or any
applicable disability policy even if the policy is not maintained
by the Company. In the event of such termination due to
Disability, all other rights and benefits the Employee may have
under the employee benefit, bonus and/or stock option plans and
programs of the Company shall be determined in accordance with
the terms and conditions of such plans and programs. For purpose
of this Agreement, "Disability" shall mean the inability or
incapacity (by
reason of a medically determinable physical or mental impairment)
of the Employee to perform the duties and responsibilities
related to the job or position with the Company described in
Section 1 for a period that can be reasonably expected to last
more than ninety (90) days. Such inability or incapacity shall be
documented to the reasonable satisfaction of the Company by
appropriate correspondence from registered physicians reasonably
satisfactory to the Company. Nothing in this Section 14 or in
this Agreement shall be deemed to require or permit the Company
to take an illegal or wrongful act under the Americans With
Disabilities Act or any other applicable law or regulation.
(d) CESSATION OF OPERATIONS. In the event the Board of Directors
determines that the Company should cease operations, whether
through dissolution and liquidation or otherwise, this Agreement
shall terminate thirty (30) days following the date of such
determination or at such earlier time as the parties may agree.
In such event: (i) Employee shall be entitled to receive her Base
Salary for six (6) months after termination of her employment
hereunder, as liquidated damages under this Agreement, (ii) the
Company shall be deemed to have performed all of its obligations
under this Agreement, and (iii) all rights and benefits the
Employee may have under any employee benefit, bonus and/or stock
option plans of the Company shall be determined in accordance
with the terms and conditions of such plans and programs.
(e) VOLUNTARY TERMINATION. The Employee may voluntarily terminate her
employment under this Agreement at any time by providing at least
ninety (90) days' prior written notice to the Company, provided,
however, the notice requirement and the remaining employment
period may be waived or reduced, respectively, by the Company in
whole or in part. In such event, the Employee shall be entitled
to receive her Base Salary until the date her employment
terminates, and all other benefits the Employee may have under
any employee benefit, bonus and/or stock option plans and
programs of the Company shall be determined in accordance with
the terms and conditions of such plans and programs. Voluntary
Termination shall not include "Resignation For Good Reason"
defined as follows:
(i) the assignment to the Employee of any lesser duties
inconsistent with the Employee's executive position
(including status, offices, titles or reporting
relationships), authority, duties or responsibilities as
contemplated by Section 1 hereof, that results in a long-
term material diminution in such position, authority,
duties or responsibilities, but excluding for these
purposes (i) any isolated and insubstantial action not
taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by
Employee; or (ii) the hiring of additional senior offices
whose rank may exceed Employees or changes in, or the
assignment of, additional duties which are required as
part of the Company's business needs but do not result in
a substantial and material diminution of Employee's
position and responsibilities as a senior officer;
(ii) any material failure by the Company to honor its material
obligations under this Agreement but only after Employee
provides the Company thirty (30) days written notice and
an opportunity to cure such failure within such period;
(iii) any failure by the Company to obtain an assumption of this
Agreement by a successor corporation as required under
Subsection 14(f) hereof;
(iv) any purported termination by the Company of the Employee's
employment otherwise than as expressly permitted by this
Agreement; or
(v) A material reduction in salary, bonus, benefits or overall
remuneration unrelated to the performance of Employee's
Duties, or as a result of the Company's financial
condition, in which case the compensatory and benefit
reductions shall be on a basis not materially inconsistent
with those of other executive officers.
(f) TERMINATION IN THE EVENT OF A CHANGE OF CONTROL. In the event of
a Change of Control (as defined in the Stock Plan) of the Company
in which subsection (d) above does not apply,
either Company or Employee may terminate this Agreement upon
written notice at any time after such Change of Control
occurs (but in any event not later than six (6) months after
the Change of Control). In the event of the termination of
this Agreement by either party under this subsection, (i)
all of Employee's outstanding incentive stock options or
other awards granted under the Stock Plan will immediately
vest and become immediately and fully exercisable and any
restrictions or requirements with respect to any prior
grants of Restricted Stock or, Performance Shares as defined
in the Stock Plan or other awards thereunder will be deemed
waived or met, and (ii) the Company or its successor shall
be obligated (Y) to pay Employee the consideration provided
in Section 9 above and in Section 15 below (unless the Non-
Compete Covenant is waived or not enforced by the Company or
its successors and assigns), and (Z) to continue the
Employee under the Company's health plan and to pay the
premiums therefor to the extent such plan remains in effect
and Employee remains eligible to participate in same, in
lieu of any other rights, claims or benefits created or
receivable under this Agreement.
15. COVENANT NOT TO COMPETE. It was a mandatory and material
condition imposed by the Company and SGI for Employee to enter into this
Agreement in connection with the Merger Agreement, the Success Fee Agreement and
the other Merger Documentation and grant the Company and SGI the Non-Compete
Covenant contained herein, and in consideration of those agreements and the
consideration provided for therein and herein Employee agrees with the Company
that during the period of her employment and for a period of two (2) years
following her termination of employment for any reason, whether by resignation
(with or without good reason), termination by the Company for cause or without
cause, or any other reason whatsoever, Employee will not compete, whether
directly or indirectly as an owner, partner, shareholder, member, sole
proprietor, consultant, manager, officer, director or in any other capacity
except as a passive investor without managerial responsibilities, with the
Company Group in the ownership or operation of ASC's or hospitals in (i)
Houston, Texas, Xxxxxx County, Texas, and in all contiguous counties and (ii) in
such other counties (including all contiguous counties) where the Company Group
or its affiliates own and/or operate, whether directly or indirectly, any ASC or
hospital in the State of Texas or any other of the forty-nine (49) states of the
United States of America. In the event Employee voluntarily terminates her
employment, she shall not be entitled to severance pay or any other additional
payments of consideration for this covenant not to compete. In the event
Employee's employment is terminated without cause, she shall be entitled to the
consideration provided for in Section 8 and she shall be additionally entitled
to her full Base Salary in effect as of the date of termination, payable in
monthly installments commencing in month seven (7) following her termination of
employment through the final month of this covenant not to compete. If
Employee's employment is terminated for cause or if Employee resigns without
good reason, Employee shall not be entitled to any severance benefits, and
Employee's outstanding incentive stock options under the Stock Plan or any other
benefits provided for thereunder including but not limited to restricted stock,
stock appreciation rights, performance shares or cash bonus programs which are
not then vested, exercised and paid or performed in full will terminate and
Employee shall receive no additional consideration for Employee's covenant not
to compete. The Company or its legal successors or permitted assigns may waive
its rights under this Section 15 and in that event Employee shall not be
entitled to the consideration for this covenant not to compete specified in this
Section 15 and may compete with the Company in any area or in any legal manner;
provided, however, the provisions and restrictions relating to the use or
disclosure of Proprietary Information shall continue to apply.
16. NOTICES. Any notices required or permitted hereunder shall
be sufficient if in writing and sent by certified mail, return receipt requested
with postage prepaid to the other party at the appropriate address set forth
below, or to such other address as may be designated by written notice similarly
given by either party to the other. All notices shall also be effective if in
writing, when received, with confirmation thereof, by mail as provided above,
fax, personal delivery, courier service or electronic transmission if proof of
delivery is obtained, and if sent via e-mail, proof of sending and the opening
of the e-mail is required, followed by written notification in any manner
provided above.
(i) If to the Company:
Dynacq International, Inc.
0000 X Xxxxx
Xxxxxxxx, Xxxxx 00000
Attn: Chairman and CEO
cc: Xxxxxx Xxxx, CFO
cc: Xxxx Xxxxxx, General Counsel
(ii) If to the Employee:
Xxxxx X. Xxxxxx
0000-X Xxxxx Xxxx
Xxxxxxxx, Xxxxx 00000
17. GOVERNING LAW, JURISDICTION, VENUE, AND ATTORNEYS' FEES. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF. IN THE EVENT OF ANY CONFLICT RELATING
TO OR ARISING OUT OF THIS AGREEMENT, IN WHOLE OR IN PART, THE PARTIES AGREE TO
THE EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL DISTRICT COURTS IN HOUSTON,
XXXXXX COUNTY, TEXAS AND AGREE TO EXCLUSIVE VENUE IN SUCH COURTS. IN THE EVENT
OF LEGAL PROCEEDINGS HEREUNDER, THE PARTY SUBSTANTIALLY PREVAILING ON THE MERITS
SHALL BE ENTITLED TO AN AWARD OF ATTORNEYS' FEES AND COSTS. ANY PARTY MAY
REQUEST AND OBTAIN A NON-BINDING MEDIATION HEARING AFTER FILING A LAWSUIT
HEREUNDER IN HOUSTON, TEXAS, WITH COSTS TO BE SHARED EQUALLY, AND THE MEDIATOR
SHALL BE APPOINTED BY THE COURT IF THE PARTIES CANNOT AGREE TO A MEDIATOR.
18. ENTIRE AGREEMENTS AND AMENDMENTS. This Agreement together with
the Merger Agreement and Merger Documentation contain the entire agreement of
the Employee and the Company relating to the matters contained herein (except
with respect to "Options" or "Awards" as defined in the Stock Plan, whether
referred to herein or hereafter arising, the terms of the Stock Plan and/or the
later agreement relating to any Stock Plan Award or Option shall control) and
this Agreement supersedes all prior agreements and understandings, oral or
written, between the Employee and the Company with respect to the subject matter
hereof; this Agreement may not be amended or modified except by an agreement in
writing signed by the party against whom enforcement of any waiver or
modification is sought. In the event of any conflict, ambiguity, inconsistency,
or outright differences between the parties' rights under the Merger
Documentation, the agreement that addresses the matter with the greatest
specificity shall control.
19. HEADINGS. The headings of Sections and subsections hereof are
included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement.
20. SEPARABILITY. If any provisions of this Agreement are rendered or
declared illegal, invalid, or unenforceable by reason of any existing or
subsequently enacted legislation or by the final judgment of any court of
competent jurisdiction, the Employee and the Company shall promptly meet and
negotiate substitute provisions for those rendered or declared illegal or
unenforceable to preserve the original intent of this Agreement to the extent
legally possible, but all other provisions of this Agreement shall remain in
full force and effect.
21. ASSIGNMENTS. The Company may assign this Agreement to any person
or entity succeeding to all or substantially all the business interests of the
Company by merger or otherwise. The rights and obligations of the Employee under
this Agreement are personal to him, and no such rights, benefits or obligations
shall be subject to voluntary or involuntary alienation, assignment or transfer,
except to a successor in interest to substantially all of the assets or business
interests or ownership of the Company or the Company Group, whether directly or
indirectly, as provided above.
22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by facsimile, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
23. SURVIVAL OF CERTAIN TERMS. The terms contained in Sections 12,
13, 14 and 15 shall survive the termination of this Agreement for any reason,
whether terminated by Company or Employee.
24. CONSTRUCTION OF AGREEMENT. The parties hereto acknowledge,
stipulate and agree that this Agreement was jointly prepared, negotiated and
drafted by the parties and their respective counsel, and agree that the
presumption of a favorable interpretation for the nondrafting party in the event
of ambiguity or any other matter of interpretation shall not apply.
25. BREACH OF EMPLOYEE'S COVENANTS. If Employee breaches or threatens to
breach Sections 12, 13 or 15 hereof, Employee specifically acknowledges that
such breach or breaches shall be conclusively presumed to cause irreparable harm
to the Company or Company Group entitling it to all equitable relief available
at law or in equity including but not limited to a temporary restraining order,
a temporary injunction and a permanent injunction and Employee stipulates and
acknowledges that monetary recovery shall not be sufficient alone to compensate
the Company in such events and waives proof thereof and the necessity for the
Company to post a bond, except for the minimum amount permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date stated in the initial paragraph above.
EMPLOYEE:
_____________________________________
Xxxxx X. Xxxxxx
EMPLOYER:
Dynacq International, Inc.
By:__________________________________
Xxxxxx Xxxx, CEO
EXHIBIT A
INCENTIVE STOCK OPTION AGREEMENT
EXHIBIT B
EMPLOYEE'S INTELLECTUAL PROPERTY
RIGHTS OR PROPRIETARY INFORMATION
PRIOR TO EMPLOYMENT
NONE.
