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Exhibit
10.2
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT is
made and entered into this 28th day of February 2007, but is
effective for all purposes as of the Commencement Date (as
hereinafter defined), by and between Alliance HealthCard, Inc.
(“Parent”) and its wholly-owned subsidiary, AHC-Benefit
Marketing Acquisition, Inc. (“BMS” and collectively
with Parent, the “Employer”) and BRETT WIMBERLEY,
residing at 1516 Barwick Drive, Norman, Oklahoma 73072 (the
“Employee”).
WITNESSETH:
1. EMPLOYMENT
The Employer hereby employs
the Employee, and the Employee hereby accepts such employment, upon
the terms and subject to the conditions set forth in this
Agreement.
2. TERM
The term of employment under
this Agreement shall commence on March 1, 2007 (the
“Commencement Date”) and shall continue through
February 28, 2010; provided, however, that the term of this
agreement shall automatically be extended for additional one-year
terms, unless either party gives notice of termination not less
than to the other on or before December 1 in the year of
termination, commencing March 1, 2010.
3. COMPENSATION; REIMBURSEMENT,
ETC.
(a) Base Salary . The
Employer shall pay to the Employee as compensation for all services
rendered by the Employee during the term of this Agreement a basic
annualized salary of One Hundred Seventy-five Thousand Dollars
($175,000.00) per year (the “Base Salary”), or such
other sum as the parties may agree on from time-to-time, payable
monthly or in other more frequent installments, as determined by
the Employer. The Base Salary shall be subject to required
withholding taxes and other employment taxes prescribed by law. The
compensation provided for in this Section 3(a) shall be in
addition to any pension or profit sharing payments, if any, set
aside or allocated for the benefit of the Employee.
(b) Commissions .
Omitted.
(c) Bonuses . In
addition to Base Salary, Employee shall be eligible to be
considered for annual bonuses, which are not guaranteed and are to
be determined by Employer’s Board of Directors in its sole
discretion.
(d) Reimbursement .
The Employer shall reimburse the Employee for all reasonable
expenses incurred by the Employee in the performance of
Employee’s duties under this Agreement; provided, however,
that the Employee must furnish to the Employer an itemized account,
satisfactory to the Employer, in substantiation of such
expenditures.
(e) Fringe Benefits .
The Employee shall be entitled to such fringe benefits including,
but not limited to, medical and insurance benefits as may be
provided from time to time by the Employer to other senior officers
of the Employer. The Employee shall be eligible to participate, in
accordance with the terms of such plans as they may be adopted,
amended and administered from time-to-time, in incentive, bonus,
benefit or similar plans.
4. DUTIES
The Employee is engaged as
Chief Operating Officer of BMS. In addition, the Employee shall
have such other duties and hold such other offices as may from time
to time be reasonably assigned to Employee by the Board of
Directors of the Employer. The Employee shall not become employed,
engaged or involved, in any capacity, in any commercial or
professional endeavor, business or business activity other than the
business and affairs of the
Employer that are competitive with the
business or business activities of the Employer and its
subsidiaries without obtaining the written consent of the Board of
Directors.
5. EXTENT OF SERVICES; VACATIONS AND
DAYS OFF
(a) Full Time
Obligation . During the term of Employee’s employment
under this Agreement, the Employee shall devote such time, energy
and attention during regular business hours to the benefit and
business of the Employer as may be reasonably necessary in
performing Employee’s duties pursuant to this Agreement. The
employee may become employed, engaged or involved, in any capacity,
in any commercial or professional endeavor, business or business
activity that is not competitive with the business and affairs of
the Employer and its subsidiaries (the “Noncompetitive
Activity”) and shall be permitted to devote the
Employee’s time, energy and attention to the Noncompetitive
Activity to the extent that such devotion does not prevent the
Employee from performing Employee’s duties pursuant to this
Agreement.
(b) Vacation . The
Employee shall be entitled to vacations with pay and to such
personal sick leave with pay in accordance with the policy of the
Employer as may be established from time to time by the Employer
and applied to other senior officers of the Employer.
6. FACILITIES
The Employer shall provide
the Employee with a fully furnished office, and the facilities of
the Employer shall be generally available to the Employee in the
performance of Employee’s duties pursuant to this Agreement,
it being understood and contemplated by the parties that all
equipment, supplies and officer personnel required in the
performance of the Employee’s duties under this Agreement
shall be supplied by and at the sole cost of the
Employer.
7. ILLNESS OR INCAPACITY, TERMINATION ON
DEATH, ETC.
(a) Death . If the
Employee dies during the term of Employee’s employment, the
Employer shall pay to the estate of the Employee such compensation,
including any bonus compensation earned but not yet paid, as would
otherwise have been payable to the Employee up to the end of the
month in which Employee’s death occurs. The Employer shall
have no additional financial obligation under this Agreement to the
Employee or Employee’s estate. After receiving the payments
provided in this subparagraph (a), the Employee and
Employee’s estate shall have no further rights under this
Agreement.
(b) Disability
.
(i) During any period of
disability, illness or incapacity during the term of this Agreement
which renders the Employee at least temporarily unable to
substantially perform the services required under this Agreement,
the Employee shall receive the Base Salary payable under
Section 3(a) of this Agreement plus any bonus compensation
earned but not yet paid, less any cash benefits received by
Employee under any disability insurance paid for by the Employer.
Upon the Employee’s “Permanent Disability” (as
defined below), which Permanent Disability continues during the
payment periods specified herein, the Employer shall pay to the
Employee the Base Salary payable under Section 3(a) of this
Agreement, plus bonus compensation earned but not yet paid, to the
end of the month in which the Employee is terminated for Permanent
Disability as set forth below, less any cash benefits received by
Employee under any disability insurance paid for by the Employer.
The Employee may be entitled to receive payments under any
disability income insurance which may be carried by, provided by or
paid for by the Employer from time to time. Upon “Permanent
Disability” (as that term is defined in Section 7(b)(ii)
below) of the Employee, except as provided in this
Section 7(b), all rights of the Employee under this Agreement
shall terminate (other than rights already accrued).
(ii) The term
“Permanent Disability” as used in this Agreement shall
mean, in the event a disability insurance policy is provided or
paid for by the Employer covering the Employee at such time and is
in full force and effect, the definition of permanent disability
set forth in such policy. If no such
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disability policy is so
maintained at such time and is then in full force and effect, the
term “Permanent Disability” shall mean the inability of
the Employee, as reasonably determined by the Employer by reason of
physical or mental disability to perform the duties required of
Employee under this Agreement for a period of sixty (60) days
in any one-year period. Successive periods of disability, illness
or incapacity will be considered separate periods unless the later
period of disability, illness or incapacity is due to the same or
related cause and commences less than three months from the ending
of the previous period of disability. Upon such determination, the
Employer may terminate the Employee’s employment under this
Agreement upon ten (10) days’ prior written notice. If
any determination of the Employer with respect to Permanent
Disability is disputed by the Employee, the parties hereto agree to
abide by the decision of a panel of three physicians. The Employee
and Employer shall each appoint one member, and the third member of
the panel shall be appointed by the other two members. The Employee
agrees to be available form and submit to examinations by such
physicians as may be directed by the Employer. Failure to submit to
any such examination may be treated by the Employer as an admission
by the Employee of Permanent Disability.
8. OTHER TERMINATIONS
(a) Mutual Termination
. Either the Employee or the Employer may terminate the
Employee’s employment hereunder upon giving at least thirty
(30) days’ prior written notice. If such notice is
given, the Employer shall have the right to relieve the Employee,
in whole or in part, of the Employee’s duties under this
Agreement (without reduction in compensation through the
termination date). All obligations of the Employee to the Employer
and the Employer to the Employee, as the case may be, pursuant to
this Agreement shall terminate thirty (30) days after such
notice is given, other than the compensation that the Employee
shall be entitled to receive pursuant to this agreement on or
before the termination date.
(b) Termination for
“Good Cause” .
(i) Except as otherwise
provided in this Agreement, the Employer may terminate the
employment of the Employee hereunder only for “Good
Cause” (as defined below) and upon written notice; provided,
however, that no breach or default by the Employee shall be deemed
to occur hereunder unless the Employee shall have failed to cure
the breach or default within thirty (30) days after Employee
received written notice thereof indicating that it is a notice of
termination pursuant to this Section 8(b).
(ii) As used herein,
“Good Cause” shall include:
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(1) |
the Employee’s conviction of or the entering of a plea of
nolo contendere to either a felony or any crime directly related to
the Employee’s employment by the Employer which causes a
substantial detriment to the Employer; |
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(2) |
actions by the Employee as an executive officer of the Employer
which clearly are contrary to the best interest of the
Employer; |
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(3) |
the Employee’s willful failure to take actions permitted
by law and necessary to implement policies of the Employer which
have been communicated to the Employee in writing, provided that
minutes of a Board of Directors meeting attended in its entirety by
the Employee shall be deemed communicated to the
Employee; |
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(4) |
the Employee’s continued failure or refusal to attend to
Employee’s duties as an executive officer of the
Employer; |
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(5) |
the Employee fails to repay when due any sums loaned or
advanced to Employee by Employer; or |
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(6) |
willful misconduct materially and demonstrably injurious to the
Employer, financially or otherwise, as determined in the reasonable
discretion of the Employer. |
(iii) Termination of the
employment of the Employee for reasons other than those expressly
specified in this Agreement as Good Cause or as provided in
Section 8(a) shall be deemed to be a termination of employment
“Without Good Cause” for purposes of
Section 8(c).
(c) Termination Without
Good Cause .
(i) If the Employer shall
terminate the employment of the Employee Without Good Cause
effective on a date earlier than the termination date provided for
in Section 2, the Employee shall continue to receive the Base
Salary; provided that, notwithstanding such termination of
employment, the Employee’s covenants set forth in
Section 10 and Section 11 are intended to and shall
remain in full force and effect.
(ii) The parties agree that,
because there can be no exact measure of the damage that would
occur to the Employee as a result of a termination by the Employer
of the Employee’s employment Without Good Cause, the payments
and benefits paid and provided pursuant to this Section 8(c)
shall be deemed to constitute liquidated damages and not a penalty
for the Employer’s termination of the Employee’s
employment Without Good Cause, and the Employer agrees that the
Employee shall not be required to mitigate Employee’s
damages; provided, however, if he does mitigate, Employer shall be
entitled to an offset against the liquidated damages for all sums
received by Employee by virtue of the mitigation.
(d) Certain Effects of
Termination . If the employment of the Employee is terminated
for Good Cause under Section 8(b)(ii) of this Agreement, or if
the Employee voluntarily terminates Employee’s employment by
written notice to the Employer under Section 8(a) of this
Agreement, the Employer shall pay to the Employee any compensation
earned but not paid to the Employee prior to the effective date of
such termination. Under such circumstances, such payment shall be
in full and complete discharge of any and all liabilities or
obligations of the Employer to the Employee hereunder, and the
Employee shall be entitled to no further benefits under this
Agreement.
(e) Release . Payment
for any compensation to the Employee under this Section 8
following termination of employment shall be conditioned upon the
prior receipt by the Employer of a release executed by the Employee
in the form prepared by counsel for the Employer.
9. DISCLOSURE
The Employee agrees that,
during the term of Employee’s employment by the Employer,
Employee will disclose, and disclose only to the Employer, all
ideas, methods, plans, developments or improvements known by
Employee which relate directly or indirectly to the business of the
Employer, whether acquired by the Employee before or
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