Exhibit 10.1
EMPLOYMENT AGREEMENT
(Amended and Restated)
THIS EMPLOYMENT AGREEMENT (this "Agreement"), shall be effective the 15th day
of April, 1994, by and between Laboratory Specialists of America, Inc. (the
"Company"), an Oklahoma corporation, and John Simonelli, an individual
("Simonelli").
WHEREAS, the parties hereto entered into this Employment Agreement on April
15, 1994, which was amended and restated on September 9, 1994, and April 23,
1996;
WHEREAS, the parties have determined that it is in the best interest of the
Company that this Agreement be further amended to extend the term of this
Agreement, effective as of the date hereof;
NOW, THEREFORE, for and in consideration of the conditions hereinbelow to be
performed on the part of the respective parties hereto, and in consideration of
the mutuality thereof, the parties hereto agree as follows:
1. Term of Employment. The Company hereby agrees to employ Simonelli, and
Simonelli hereby agrees to serve the Company, during the period beginning on
April 15, 1996 and ending on April 15, 2000 (the "Period of Employment"), or on
such earlier date as provided in Sections 4 and 5 hereof; provided, however,
that the Period of Employment shall be extended an additional one year period to
next April 15 immediately following the end of each full year of employment with
the Company that Simonelli completes pursuant to and accordance with this
Agreement.
2. Duties. Substantially all of the duties and responsibilities of
Simonelli, subject to such travel as the duties of Simonelli hereunder may
reasonably require, shall be performed by Simonelli at and from the corporate
offices of the Company in Oklahoma City, Oklahoma.
2.1 During the Employment Period, Simonelli shall devote such time,
attention, skill, energy and best efforts to the duties assigned to him from
time to time by management and/or the Board of Directors of the Company, and
shall, but without obligation hereunder, serve the Company in the executive
officer positions to which he may be elected or appointed by the Board of
Directors of the Company, subject to acceptance by Simonelli of such executive
officer position or positions. Notwithstanding the foregoing, Simonelli shall
be required to devote not less than 50 percent of his full business time,
attention, skill, energy and efforts to the performance of his duties
hereunder; provided, however, that Simonelli may engage in any other employment
or pursuit of other endeavors which does not conflict with his ability to
perform his duties to the business interests of the Company, provided that such
other employment or pursuit of other endeavors does not violate the duty of
loyalty and care which Simonelli has to the Company by reason of this Agreement
or in his capacity as an executive officer of the Company.
2.2 As an employee of the Company, Simonelli shall be subject to the
overall supervision and instructions of management of the Company and, if
applicable, that are associated with the executive officer position or
positions held by Simonelli which shall be subject to the overall supervision
and instructions of the Board of Directors to the Company.
3. Compensation and Other Benefits. During the Employment Period, the
Company shall pay or provide to Simonelli and Simonelli shall be entitled to
receive or have maintained for his benefit, the following:
3.1 Effective April 15, 1996, the Company shall compensate Simonelli for
the services to be rendered by him hereunder at the rate of one hundred twelve
thousand five hundred dollars ($112,500) per year, payable in equal semi-
monthly installments on the first and fifteen day of each month, commencing on
May 1, 1996.
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3.2 From time to time the Company may pay cash bonuses (but not in excess
of 10 percent of the net income of the Company during the applicable fiscal
year of the Company determined in accordance with generally accepted accounting
principles) or grant stock options to its executive officers as determined by
the Board of Directors (or the Compensation Committee established by the Board
of Directors). To the extent that bonuses or stock options are paid or granted
by the Board of Directors to its executive officers, Simonelli shall be deemed
to be a member of the bonus group or group to which stock options are granted,
and his bonus or stock option grants shall be determined in the same manner as
are the bonuses or stock option grants of other executives in the group.
3.3 Simonelli is hereby authorized to incur reasonable expenses for the
promotion of the Company's business, including entertainment, travel and
similar expenses, and he shall be reimbursed therefore by the Company upon his
presentation of itemized accounts of such expenditures.
3.4 The Company shall provide to Simonelli health and disability insurance
benefits comparable to those provided to the executive officers of the Company
either as a group or individually.
3.5 Simonelli shall be entitled to reasonable periods of vacation with pay
in each year, and reasonable periods of sick leave with pay commensurate with
his position, in accordance with Company policy as established by the Board of
Directors.
3.6 The Company shall provide to Simonelli and maintain insurance, at the
Company's cost and expense, covering the life of Simonelli in the face amount
of five hundred thousand dollars ($500,000), the proceeds of which shall be
payable to such beneficiary that Simonelli shall designate or in the event of
failure to designate a named beneficiary shall be payable to the estate of
Simonelli.
3.7 The Company shall pay to Simonelli an automobile allowance of five
hundred dollars ($500) per month, payable on the fifteen day of each month
while employed pursuant to this Agreement, and shall provide at the sole cost
and expense of the Company a mobile phone to assist Simonelli in the
performance of his duties and responsibilities as an employee and, if
applicable, executive officer of the Company.
4. Disability or Death.
4.1 In the event the Board of Directors of the Company determines in good
faith that Simonelli is unable, because of physical or mental illness or
disability, to render services of the character contemplated hereby and that
such disability reasonably may be expected to be permanent or to continue for a
period of at least six (6) consecutive months (or for shorter periods totaling
more than six (6) months during any period of eighteen (18) consecutive
months), in such event the Board of Directors of the Company may elect to
terminate the employment of Simonelli hereunder upon written notice by the
Company to Simonelli effective on the next first or fifteenth day of the month
following the date of such notice. At any time and upon reasonable request
therefor by the Company, Simonelli shall submit to medical examination by a
physician designated by the Company in Oklahoma City, Oklahoma, for the purpose
of determining the existence, nature and extent of any such disability. In the
event the Board of Directors elects to terminate the employment of Simonelli
pursuant to this Section 4.1, Simonelli shall be entitled to receive any amount
of compensation determined pursuant to Section 3.1 up to the date of the
termination of the employment of Simonelli payable on the dates established
pursuant to Section 3.1.
4.2 In the event Simonelli shall die during the Employment Period, this
Agreement shall terminate effective on the next first or fifteenth day of the
month following the date of death, and the Company shall pay to the spouse of
Simonelli, or if unmarried at the time of his death, to the estate of
Simonelli, the compensation payable to Simonelli pursuant to Section 3.1 for a
period of three (3) months following the effective date of termination of this
Agreement pursuant to this Section 4.2, payable on the dates provided for such
compensation payment thereunder.
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4.3 In the event of termination of this Agreement pursuant to Section 4.1
and/or Section 4.2 of this Agreement, Simonelli (or his spouse or if unmarried
on the date of his death his estate) shall be entitled to receive accrued and
unpaid expense reimbursements, automobile allowance and any unpaid bonus
amounts awarded to Simonelli prior to such termination and stock option grants
awarded to Simonelli prior to such termination exercisable in accordance with
the terms of such stock option grants.
5. Termination for Cause. In the event the Board of Directors of the Company
determines in good faith that Simonelli is guilty of gross negligence or fraud
materially injurious to the Company, the Company may terminate this Agreement,
and all obligations hereunder shall thereupon terminate.
6. Non-Competition. During the Employment Period, or, if longer, the period
of employment of Simonelli by the Company, Simonelli will not engage in
competition with the Company, either directly or indirectly, in any manner or
capacity as an employee or executive officer of a competitor company in any
phase of the business carried on by the Company at any time.
7. Confidentiality. During the Employment Period, or, if longer, the period
of employment of Simonelli by the Company, and for a period of three (3) years
thereafter, Simonelli will not divulge to anyone, other than the Company or
persons designated by the Company in writing, any confidential material
information directly or indirectly useful in any aspect of the business of the
Company or any of its subsidiaries, as conducted from time to time, as to which
Simonelli is now, or at any time during employment shall become, informed and
which is not then generally known to the public or recognized as standard
practice.
8. Certain Provisions to Survive Termination; Etc. Notwithstanding any
termination of his employment under this Agreement, Simonelli, in consideration
of his employment hereunder to the date of such termination, shall remain bound
by the provisions of Section 6 and 7, and consequently, in addition to all other
remedies that may be available to it, the Company shall be entitled to
injunctive relief for any actual or threatened violation of such Sections.
9. Non-Assignability. Neither party hereto shall have the right to assign
this Agreement or any rights or obligations hereunder without the written
consent of the other party.
10. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association and judgment upon the
award rendered by the arbitrator or arbitrators may be entered in any court
having jurisdiction thereof. The arbitration proceedings shall be conducted in
Oklahoma City, Oklahoma unless otherwise agreed by the parties hereto. The
arbitrator or arbitrators shall be deemed to possess the powers to issue
mandatory orders and restraining orders in connection with such arbitration;
provided, however, that nothing in this Section 10 shall be construed so as to
deny the Company the right and power to seek and obtain injunctive relief in a
court of equity for any breach or threatened breach by Simonelli of any of his
covenants contained in Sections 6 and 7 hereof.
11. Notice. All notices required or permitted to be given hereunder shall be
in writing and shall be deemed to have been given forty-eight (48) hours after
depositing in the United States mail, certified mail, postage prepaid, addressed
to the party to receive such notice at the address set forth hereinbelow or such
other address as either party may give to the other in writing pursuant to
written notice pursuant to this Section:
If to Simonelli: Mr. John Simonelli
1101-A Sovereign Row
Oklahoma City, Oklahoma 73108
If to the Company: Laboratory Specialists of America, Inc.
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1101-A Sovereign Row
Oklahoma City, Oklahoma 73108
Attention: Larry E. Howell
12. General. The terms and provisions herein contained (i) constitute the
entire Agreement between the Company and Simonelli with respect to the subject
matter hereof, (ii) may be amended or modified only by a written instrument
executed by the parties hereto, and (iii) shall be construed and enforced in
accordance with the laws in effect in the State of Oklahoma without regard to
its conflicts of law provisions. Failure by a party hereto to require
performance of any provision of this Agreement shall not affect, impair or waive
such party's right to require full performance at any time thereafter.
It is acknowledged that the furniture, equipment and artwork in the corporate
offices of the Company in Oklahoma City, Oklahoma are the property of Larry E.
Howell and Simonelli.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as
amended and restated, on the 26th day of September, 1997, with an effective date
of the 15th day of April, 1996.
"Company" LABORATORY SPECIALISTS OF AMERICA, INC.
By:____________________________________________________
Larry E. Howell, President
"Simonelli" __________________________________________________
John Simonelli
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