f10qsb0907ex10ii_amersur.htm


     

    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 (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 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 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:

    10039
      Bissonnet #250

    Houston,
      Texas 77036-7852

    Telephone:(713)
      779-9800

    Facsimile:

    Attention:Principal
      Executive Officer/Principal Financial Officer

     

     
      
        

      

    

    2
NOTE:
      typically the
      period for severance payments corresponds to the length of the none ompete
      and
      nonsolicitation period.

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    With
      a
      copy to:

     

    Anslow
      & Jaclin, LLP

    195
      Route
      9 South, Suite 204 

    Manalapan,
      New Jersey, 07726 

    Attention:
      Richard Anslow 

    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.

     

    10.             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 such
      Confidential 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 his employment 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 two-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 two years 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.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

               (j)            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
      Delaware 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
      Houston, Texas, 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 unl  ess
      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 thathe 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.

                  
	 
	
                    By:  /s/  Zak 
                      Elgamal

                  
	
                    Name:
                      Zak  Elgamal

                  
	
                    Title:
                      Director

                  
	 
	 
	
                    EXECUTIVE

                  
	 
	
                    By:  /s/  Willaim
                      J. McGinnis

                  
	
                    Willaim
                      J. McGinnis