f8k101407ex10v_americansur.htm


    EMPLOYMENT
      AGREEMENT

     

    This
      employment agreement (this "Agreement"), dated as of November 26, 2007 (the
      "Effective Date"), is made by and between American Surgical Assistants, Inc.,
      a
      Delaware corporation (the "Company"), and James Longaker (the "Executive")
      (each, a "Party" and together, the "Parties").

     

           
      WHEREAS, the Executive is to be employed as Chief Financial Officer of the
      Company;

     

    and

     

    WHEREAS,
      the Parties wish to establish the terms of the Executive's 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 Chief Executive Officer 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. 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 Section6,
      the
      Executive's employment under this Agreement shall be for a one-year
      term commencingon
      the
      Effective Date and ending on December ____, 2009 (the "Initial Term"). Subject
      to Section6,
      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
      60 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
      $120,000, 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.
With
      respect to each
      full fiscal year during the Employment Term, the Executive shall be eligible
      to
      earn an annual bonus (the "Annual Bonus") in such amount, if any, as determined
      in the sole discretion of the Board of up to 100% of the Executive's Base
      Salary. In addition, 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 and
      may be entitled to bonus payments in addition to the amount set forth
      hereinabove.1

     

    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 for the benefit of its
      senior executives, at a level commensurate with his positions, 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.

     

    ________________________

    
      1 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 shallterminate
      on the first of the following to occur:

     

    (a) Disability.
      On 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 state of Texas)
      (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.

     

    (e)Good
      Reason. On the sixtieth
      (60th)
      day
      following written notice by the Executive to the Company of a termination for
      Good Reason. "Good Reason" shall mean, without the express written consent
      of
      the Executive, the occurrence of any the following events unless such events
      are
      cured (if curable) by the Company within fifteen days following receipt of
      written notification by the Executive to the Company that he intends to
      terminate his employment hereunder for one of the reasons set forth below:
      any
      material reduction or diminution (except temporarily during any period of
      incapacity due to physical or mental illness) in the Executive's title,
      authorities, duties or responsibilities or reporting requirements with the
      Company.

     

    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 (1) 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 or for Good
      Reason. Upon the termination of the Employment Term by the Company
      without Cause or by the Executive with Good Reason, 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:

     

    ____________________

    2
      NOTE: typically the period for severance payments corresponds to the
      length of the
      noncompete and nonsolicitation
      period. 

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    10039
      Bissonnet Street, Suite #250 

    Houston,
      Texas

    Telephone:                     (713)
      779-9800

    Facsimile:                       
      (713) 779-9862

    Attention:                       Principal
      Executive Officer

     

    With
      a
      copy to:

     

    Anslow
      & Jaclin, LLP

    195
      Route
      9 South, Suite 204 

    Manalapan,
      New Jersey, 07726 

    Attention:
      Gregg Jaclin, Esq. 

    Facsimile:
      (732) 577-1188

     

    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.

     

     (a) 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 suchConfidential
      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
        hisemployment
        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 one-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 one year 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.

     

    (i)
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 New York 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 New York, Borough of Manhattan, 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
      unless 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 that he 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.

     

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    IN
      WITNESS WHEREOF, the
      Parties have executed this Agreement as of the date first written
      above.

     

    
      
        	
                AMERICAN
                  SURGICAL HOLDINGS, INC.

              
	 
	 
	
                /s/  Zak
                  Elgamal

              
	
                By:
                  Zak Elgamal

              
	
                Title:
                  President and Chief Executive
                  Officer

              


      



    
       

      
        
          	
                  EXECUTIVE

                
	 
	 
	
                  /s/  James
                    Longaker

                
	
                  By:
                    James Longaker