EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into as
of July 1, 2005 (the "Effective Date"), by and between Standard Management
Corporation (the "COMPANY"), and Xxxx X. X. Xxxx, a resident of the State of
Indiana, (the "EMPLOYEE").
RECITALS
A. Employee is expected to continue to make a major contribution to the
profitability, growth and financial strength of the Company;
B. The Company and Employee have determined that it is in their respective
best interest to enter into this Agreement on the terms and conditions as set
forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee hereby accepts
employment by the Company, upon the terms and conditions set forth in this
Agreement.
2. DUTIES. Employee shall serve as Executive Vice President - Pharmacy
Operations and agrees to be subject to the general supervision, orders, advice
and direction of the President or Chairman of the Board of Directors for the
Company (the "President" or the "Chairman") in a manner consistent with The
Articles of Incorporation and By-Laws of the Company.
3. EXTENT OF SERVICES. During the term of Employee's employment hereunder,
Employee shall devote his full working time and efforts to the performance of
his duties and the furtherance of the interests of the Company and shall not be
otherwise employed.
4. TERM. Subject to the provisions for termination in Section 6 below, the
initial term of employment of Employee under this Agreement shall be one (1)
year from and after the Effective Date and it shall automatically renew annually
for successive one (1) year periods (the "RENEWAL TERM," and together with the
Initial Term, the "EMPLOYMENT TERM"), unless the Company or Employee elects not
to renew this Agreement by serving written notice of such intention not to renew
on the other party at least ninety (90) days prior to the succeeding Effective
Date. If such an election is made, this Agreement shall be in full force and
effect for the remaining portion of the then-current one (1) year period,
subject to the provisions for termination in Section 6 of this Agreement. Any
reference in this Agreement to "the Employment Term" means the initial term and
any renewal terms, each of which shall be considered a separate term.
5. COMPENSATION AND BENEFITS.
5.1 SALARY. In consideration of the services rendered to the Company
hereunder by Employee and Employee's covenants hereunder, the Company shall,
during the Employment Term, pay Employee a salary at the annual rate of
Two-Hundred, Ten Thousand Dollars ($210,000), less statutory deductions and
withholdings, payable in accordance with the Company's regular payroll
practices. In addition, Employee will be eligible to receive an annual salary
increase in an amount to be determined by the Chairman.
5.2 BONUS. Employee may receive bonuses based upon his performance in his
Employee and management capacity. Whether to award such bonuses and the amounts
thereof shall be determined solely by the Chairman of the Company.
5.3 BENEFITS PACKAGE. During the Employment Term, Employee shall be
entitled to participate in the Company's corporate, medical and disability
insurance plans, at such time as Employee shall have fulfilled the eligibility
requirements for participation therein. Employee shall be entitled to all other
fringe benefits generally provided for salaried employees of the Company as
provided under such fringe benefit programs.
5.4 STOCK OPTION. Employee shall be entitled to participate in the
Standard Management Corporation ("SMC") Incentive Stock Option Plan at the
discretion of the "SMC's" Stock Option Committee.
5.5 VACATION. Employee shall be entitled to the greater of (i) 20 days
Paid Time Off ("PTO") for each year of the Employment Term; or (ii) the number
of PTO days to which Employee would be entitled in accordance with the PTO
policy and years of service with the Company or it affiliates.
5.6 EXPENSES. The Company shall, during the Employment Term, reimburse
Employee for all reasonable travel, business entertainment and other business
expenses incurred by Employee in rendering services under this Contract. Such
reimbursement shall be subject to compliance with the applicable policies and
procedures established by the Company.
6. TERMINATION. Employee's employment and this Agreement (except as
otherwise provided hereunder) shall terminate upon the occurrence of any of the
following, at the time set forth therefor (the "TERMINATION DATE"):
6.1 DEATH OR DISABILITY. Immediately upon the death of Employee or a
determination by the Company that Employee has ceased to be able to perform the
essential functions of his duties, with or without reasonable accommodation, for
a period of not less than ninety (90) days, due to a mental or physical illness
or incapacity ("DISABILITY") (termination pursuant to this Section 6.1 being
referred to herein as termination for "DEATH OR DISABILITY"); or
6.2 VOLUNTARY TERMINATION. Thirty (30) days following Employee's written
notice to the Company of termination of employment or;
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6.3 TERMINATION FOR CAUSE. Immediately following notice of termination for
"Cause" (as defined below), specifying such Cause, given by the Company
(termination pursuant to this Section 6.3 being referred to herein as
termination for "CAUSE"). As used herein, "Cause" means (i) termination based on
Employee's conviction or plea of "guilty" or "no contest" to any crime
constituting a felony in the jurisdiction in which committed, any crime
involving moral turpitude (whether or not a felony), or any other violation of
criminal law involving dishonesty or willful misconduct that materially injures
the Company (whether or not a felony); (ii) Employee's substance abuse that in
any manner interferes with the performance of his duties; (iii) Employee's
failure or refusal to perform his duties at all or in an acceptable manner as
reasonably determined in the sole discretion of the Company, or to follow the
lawful orders, advice, directions, policies, standards and regulations of the
Company and its Chairman or President, as promulgated from time to time; (iv)
Employee's breach of this Agreement; (v) misconduct by Employee that has or
could discredit or damage the Company; (vi) an act or acts of fraud or
dishonesty by Employee resulting in or tending to result in gain to or personal
enrichment of Employee at the Company's expense; (vii) Employee's indictment for
a felony violation of the federal securities laws; or (viii) Employee's chronic
absence from work for reasons other than illness.
6.4 TERMINATION WITHOUT CAUSE. Notwithstanding any other provisions
contained herein, including, but not limited to Section 4 above, the Company may
terminate Employee's employment thirty (30) days following notice of termination
without Cause given by the Company; provided, however, that during any such
thirty (30) day notice period, the Company may suspend, with no reduction in pay
or benefits, Employee from his duties as set forth herein (including, without
limitation, Employee's position as a representative and agent of the Company)
(termination pursuant to this Section 6.4 being referred to herein as
termination "WITHOUT CAUSE").
6.5 OTHER REMEDIES. Termination pursuant to Section 6.3 above shall be in
addition to and without prejudice to any other right or remedy to which the
Company may be entitled at law, in equity, or under this Agreement.
7. SEVERANCE AND TERMINATION.
7.1 CHANGE OF CONTROL. In the event a change of control (as defined below)
occurs during the Employment Term and the Employee's employment with the Company
terminates within six (6) months following such change of control for any reason
other than any termination provided for in Section 6, the Employee shall be
entitled to a severance payment consisting of twelve (12) months salary. In
addition, Employee shall continue to be entitled to all benefits throughout the
severance period.
(a) The Employee shall be entitled to the severance payments
described in Section 7.1 if the Company's principal executive offices are
moved outside, or if the Employee is relocated outside the geographic area
consisting, of Xxxxxxxx County, Indiana and the counties contiguous to
Xxxxxxxx County, Indiana.
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(b) As used in this Agreement, the term "change of control" means:
(i) a change of ownership of 50% or more of the shares of voting stock of
the Company by any person or group (other than a person or group including
Employee or with whom or which Employee is affiliated), (ii) the
occurrence of a "change of control" required to be described under the
proxy disclosure rules of the Securities and Exchange Commission or (iii)
any person or group (other than (A) a person or group including Employee
or with whom or which Employee is affiliated or (B) Parent or any of its
affiliates) is or becomes a beneficial owner, directly or indirectly, of
securities of the Company representing more than fifty percent (50%) of
the combined voting power of the Company's then-outstanding securities.
7.2 VOLUNTARY TERMINATION, TERMINATION FOR CAUSE, TERMINATION FOR DEATH OR
DISABILITY. In the case of a termination of Employee's employment hereunder for
Death or Disability in accordance with Section 6.1 above, or Employee's
Voluntary termination of employment hereunder in accordance with Section 6.2
above, or a termination of Employee's employment hereunder for Cause in
accordance with Section 6.3 above, (i) Employee shall not be entitled to receive
payment of, and the Company shall have no obligation to pay, any severance or
similar compensation attributable to such termination, other than Salary earned
but unpaid, accrued but unused vacation to the extent required by the Company's
policies, vested benefits under any employee benefit plan, and any unreimbursed
expenses pursuant to Section 5.6 hereof incurred by Employee as of the
Termination Date, and (ii) the Company's obligations under this Agreement shall
immediately cease.
7.3 TERMINATION WITHOUT CAUSE. Subject to the provisions set forth in this
Agreement, in the case of a termination of Employee's employment hereunder
Without Cause in accordance with Section 6.4 above, the Company shall pay
Employee, the greater of twelve (12) months' salary or the salary due for the
remainder of the Employment Term (thereinafter the "Severance Payment"), payable
in installments in accordance with the Company's normal payroll practices and
subject to the tax withholding specified in Section 5.1 above. The Company shall
also provide Executive with health benefits equal to and under the same terms as
such benefits are provided to Employees similarly situated to Employee during
the severance period, or pay the same level of premiums for such benefits
required of Employee under COBRA, 29 U.S.C. Section 1161, et seq. (hereinafter
"Benefit Continuation"), throughout any period in which Employee receives the
Severance Payment under this Section or until Employee receives comparable
benefits from any other source, whichever occurs first. Nothing contained herein
shall interfere with Employee's right to purchase continuation coverage under
COBRA. Any Benefit Continuation under this Agreement shall run concurrently with
any continuation coverage under COBRA.
The Company's obligation to pay and Employee's right to receive the
Severance Payment shall cease in the event of Employee's breach of his
obligations under Section 8 of this Agreement, as reasonably determined in the
sole discretion of the Company.
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7.4 SEVERANCE CONDITIONED ON RELEASE OF CLAIMS. The Company's obligation
to provide Employee with the Severance Payment and Benefit Continuation set
forth in Sections 7.1 and 7.3 is contingent upon Employee's execution of a
satisfactory release of all claims in favor of the Company.
8. TECHNICAL INFORMATION, CONFIDENTIALITY, NON-SOLICITATION, AND
NON-COMPETITION.
8.1 TECHNICAL INFORMATION. Employee agrees that during the Employment Term
and for a period of one year thereafter, (for the purpose of perfecting
ownership) he will assign to the Company or its nominees all of his right, title
and interest in and to all "Technical Information" (as hereinafter defined) that
he made developed or conceived, either alone or in conjunction with others
during the employment term; he will disclose promptly to the Company all such
Technical Information; and he will cooperate with the Company in its efforts to
protect its or any of its affiliates' or subsidiaries' rights of ownership in
such Technical Information. For purposes of this Contract, "Technical
Information" shall mean and include, but not be limited to, all software,
processes, devices, trademarks, trade names, copyrights, marketing plans,
improvements, and ideas relating to the business of the Company, or any of its
affiliates or subsidiaries, and all goodwill associated with any such item.
8.2 CONFIDENTIALITY. The Employee agrees that he shall not, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of the Employee's assigned duties and for the
benefit of the Company, either during the period of the Employee's employment or
at any time thereafter, any nonpublic, proprietary or confidential information,
knowledge, data or trades secrets (including, but not limited to, the identity
and needs of any customer of the Company, or any of its affiliates or
subsidiaries, the method and techniques of any of the business of the Company,
or any of its affiliates or subsidiaries, the marketing, sales, costs and
pricing plans and objectives of the Company, or any of its affiliates or
subsidiaries, the problems, developments, research records, and Technical
Information) of the Company or any of its subsidiaries, affiliated companies or
businesses. The foregoing shall not apply to information that (i) was known to
the public prior to its disclosure to the Employee; (ii) becomes known to the
public subsequent to disclosure to the Employee through no wrongful act of the
Employee or any representative of the Employee; or (iii) the Employee is
required to disclose by applicable law, regulation or legal process (provided
that the Employee provides the Company with prior notice of the contemplated
disclosure and reasonably cooperates with the Company at its expense in seeking
a protective order or other appropriate protection of such information).
Notwithstanding clauses (i) and (ii) of the preceding sentence, the Employee's
obligation to maintain such disclosed information in confidence shall not
terminate where only portions of the information are in the public domain.
Furthermore, Employee shall deliver promptly to the Company upon termination of
his employment, or at any time the Company may so request, all memoranda, notes,
records, reports, manuals, software, models, designs, and other documents and
computer records (and all copies thereof) relating to the business of the
Company or any of its affiliates or subsidiaries, and all property associated
therewith, which he may then possess or have under his control. This
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Agreement supplements and does not supersede Employee's obligations under
statute or the common law to protect the Company's or any of its affiliates' or
subsidiaries' trade secrets and confidential information.
8.3 NONSOLICITATION. During the Employee's employment hereunder and for
the one (1) year period thereafter (regardless of the reason for the
separation), the Employee agrees that he will not, directly or indirectly,
individually or on behalf of any other person, firm, corporation or other
entity, knowingly solicit, aid or induce (i) any employee of the Company or any
of its subsidiaries or affiliates to leave such employment to accept employment
with or render services to or with any other person, firm, corporation or other
entity unaffiliated with the Company or knowingly take any action to materially
assist or aid any other person, firm, corporation or other entity in identifying
or hiring any such employee or (ii) any customer of the Company or any of its
subsidiaries or affiliates to purchase goods or services then sold by the
Company or any of its subsidiaries or affiliates from another person, firm,
corporation or other entity or assist or aid any other persons or entity in
identifying or soliciting any such customer.
8.4 EQUITABLE RELIEF, OTHER REMEDIES, AND JURISDICTION. The Employee
acknowledges and agrees that the Company's remedies at law for a breach or
threatened breach of any of the provisions of this Section would be inadequate
and, in recognition of this fact, the Employee agrees that, in the event of such
a breach or threatened breach, in addition to any remedies at law, the Company,
, shall be entitled to seek equitable relief in the form of specific
performance, temporary restraining order, a temporary or permanent injunction or
any other equitable remedy which may then be available. With respect to any
suit, action, or other proceeding for equitable relief under Section 8 of this
Agreement, the Company and Employee hereby irrevocably agree to the exclusive
personal jurisdiction and venue of the United States District Court for the
Southern District of Indiana (and any Indiana State Court within Xxxxxx County,
Indiana).
8.5 REFORMATION. If it is determined by a court of competent jurisdiction
(or the arbitrators pursuant to Section 10.6) that any restriction in this
Section 8 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.
8.6 SURVIVAL OF PROVISIONS. The obligations contained in this Section 8
shall survive the termination or expiration of the Employee's employment with
the Company and shall be fully enforceable thereafter.
9.0 REPRESENTATIONS AND WARRANTIES BY EMPLOYEE. Employee represents and warrants
to the Company that (i) this Agreement is valid and binding upon and enforceable
against him in accordance with its terms, (ii) Employee is not bound by or
subject to any contractual or other obligation that would be violated by his
execution or performance of this Agreement, including, but not limited to, any
non-competition agreement presently in effect, and (iii) Employee is not subject
to any pending or, to Employee's knowledge, threatened claim, action, judgment,
order, or investigation that could adversely affect his ability to perform his
obligations under this Agreement or the
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business reputation of the Company. Employee has not entered into, and agrees
that he will not enter into, any agreement either written or oral in conflict
herewith.
10. MISCELLANEOUS.
10.1 NOTICES. All notices, requests, and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission with answer back
confirmation or mailed (postage prepaid by certified or registered mail, return
receipt requested) or by overnight courier to the parties at the following
addresses or facsimile numbers:
If to the Employee, to:
Xxxx X. X. Xxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
If to the Company, to:
Standard Management Corporation
00000 X. Xxxxxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Chairman, Chief Executive
Officer and President
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 10.1, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 10.1, be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address as provided in
this Section 10.1, be deemed given upon receipt (in each case regardless of
whether such notice, request, or other communication is received by any other
person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time may change its
address, facsimile number, or other information for the purpose of notices to
that party by giving written notice specifying such change to the other parties
hereto.
10.2 AUTHORIZATION TO BE EMPLOYED. This Agreement, and Employee's
employment hereunder, is subject to Employee providing the Company with legally
required proof of Employee's authorization to be employed in the United States
of America.
10.3 ENTIRE AGREEMENT. This Agreement supersedes all prior discussions and
agreements among the parties with respect to the subject matter hereof and
contains the sole and entire agreement between the parties hereto with respect
thereto.
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10.4 WAIVER. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party
hereto of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
10.5 AMENDMENT. This Agreement may be amended, supplemented, or modified
only by a written instrument duly executed by or on behalf of each party hereto.
10.6 ARBITRATION OF DISPUTES; INJUNCTIVE RELIEF. Any controversy or claim
arising out of or relating to this Agreement or the breach thereof, other than
injunctive relief under Section 8.5, shall be settled by binding arbitration in
the City of Indianapolis, Indiana, in accordance with the laws of the State of
Indiana, by three arbitrators, one of whom shall be appointed by the Company,
one by Employee and the third of whom shall be appointed by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment of a
third arbitrator, then the third arbitrator shall be appointed by the Chief
Judge of the United States District Court for the Southern District of Indiana.
The arbitration shall be conducted in accordance with the rules of the American
Arbitration Association, except with respect to the selection of arbitrators,
which shall be as provided in this Section. Judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof.
10.7 RECOVERY OF ATTORNEY'S FEES. In the event of any litigation or
arbitration arising from or relating to this Agreement, the prevailing party in
such litigation or arbitration proceedings shall be entitled to recover, from
the non-prevailing party, the prevailing party's reasonable costs and attorney's
fees, in addition to all other legal or equitable remedies to which it may
otherwise be entitled.
10.8 NO THIRD PARTY BENEFICIARY. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and the
Company's successors or assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other person.
10.9 NO ASSIGNMENT; BINDING EFFECT. Employee acknowledges that the
services to be rendered by him are unique and personal; accordingly, Employee
may not assign any of his rights or delegate any of his duties or obligations
under this Agreement. This Agreement shall inure to the benefit of any
successors or assigns of the Company.
10.10 HEADINGS; DEFINITIONS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
10.11 SEVERABILITY. The Company and Employee intend all provisions of this
Agreement to be enforced to the fullest extent permitted by law. Accordingly, if
a court
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of competent jurisdiction determines that the scope and/or operation of any
provision of this Agreement is too broad to be enforced as written, the Company
and Employee intend that the court should reform such provision to such narrower
scope and/or operation as it determines to be enforceable. If, however, any
provision of this Agreement is held to be illegal, invalid, or unenforceable
under present or future law, and not subject to reformation, then (i) such
provision shall be fully severable, (ii) this Agreement shall be construed and
enforced as if such provision was never a part of this Agreement, and (iii) the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by illegal, invalid, or unenforceable provisions or by
their severance.
10.12 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana applicable to contracts
executed and performed in such state without giving effect to conflicts of laws
principles.
10.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by facsimile, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first written above.
"EMPLOYEE"
Xxxx X. X. Xxxx
/s/ Xxxx X.X. Xxxx
--------------------------------------------------
Employee's Signature
Address
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
STANDARD MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman, Chief Executive Officer and
President
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
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