EMPLOYMENT AGREEMENT
This
employment agreement (this "Agreement"), dated as. of January 4th, 2007 (the
"Effective Date"), is made by and between American Surgical Holdings, Inc.,
a
Delaware corporation (the "Company"), and Xxxxxxx X. XxXxxxxx (the "Executive")
(each, a "Party" and together, the "Parties").
WHEREAS,
the Executive is currently employed as a Controller
of the
Company; and
WHEREAS,
the Parties wish to establish the terms of the Executive's continued 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 Controller 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, except with prior written approval
of
the Chief Executive Officer. 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 Section
6,
the
Executive's employment under this Agreement shall be for a one-year term
commencing on
the
Effective Date and ending on January 3th, 2008 (the "Initial Term").
Subject
to Section 6, 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 30 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 US$85,000, 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.
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.'
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 or for the benefit of its senior executives, at a
level commensurate with his position, 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.
I
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 shall
terminate
on the first of the following to occur:
(a) Disability.
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 People's
Republic of China) (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.
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 (I) 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. Upon the termination of the Employment Term by the
Company without Cause, 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:
00000
Xxxxxxxxx #000
Xxxxxxx,
Xxxxx 00000-0000
Telephone:(000)
000-0000
Facsimile:
Attention:Principal
Executive Officer/Principal Financial Officer
2
NOTE:
typically the
period for severance payments corresponds to the length of the none ompete
and
nonsolicitation period.
With
a
copy to:
Xxxxxx
& Xxxxxx, LLP
000
Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx, 00000
Attention:
Xxxxxxx Xxxxxx
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.
10. 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 such
Confidential 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 his employment 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 two-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 two years 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.
(j) 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
Delaware 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
Houston, Texas, 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 unl ess
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 thathe 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.
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AMERICAN
SURGICAL HOLDINGS, INC.
|
|
By: /s/ Xxx
Xxxxxxx
|
|
Name:
Xxx Xxxxxxx
|
|
Title:
Director
|
|
EXECUTIVE
|
|
By: /s/ Xxxxxxx
X. XxXxxxxx
|
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Xxxxxxx
X. XxXxxxxx
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