|
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 William J. McGinnis (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 (30 th ) 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
b
| 
