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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
AGREEMENT dated the 10th day of October, 2000, between X.
Xxxxxx Choppin (Employee) and America Service Group Inc., a Delaware
Corporation (the Company).
WHEREAS, the Company seeks to employ the Employee; and
WHEREAS, the Employee accepts the positions contemplated
herein;
NOW, THEREFORE, the parties hereby agree as follows:
1. Employment and Duties. The Company hereby employs
the Employee as Senior Vice President and Chief Financial Officer of the
Company and/or such other offices and duties as the Company shall reasonably
determine from time to time, consistent with Employee' s responsibilities.
Employee shall perform the duties and services of the offices and titles for
which he is employed from time to time hereunder.
2. Performance. From the date hereof, Employee agrees
to actively devote all of his time and effort during normal business hours as
agreed with the Company, to the performance of his duties hereunder and to use
his reasonable best efforts and endeavors to promote the interests and welfare
of the Company.
3. Term. The term of Employee' s employment hereunder
shall commence as of the date hereof and shall continue as an employment at
will unless terminated by written notice from either party to the other at
least thirty (30) days prior to termination.
4. Compensation. For all services rendered by Employee,
the Company agrees to pay Employee from and after the date hereof: (i) a salary
(the Base Salary) at an annual rate of not less than One Hundred Ninety-Three
Thousand Dollars Eight Hundred Dollars and No/100, payable in such installments
as the parties shall mutually agree; plus (ii) such additional compensation as
the Compensation Committee of the Board (the Committee) shall from time to time
determine.
5. Employee Benefits. During the period of his
employment under this Agreement, Employee shall be entitled to vacation,
insurance, and other employment benefits customarily provided by the Company to
its executives, including increased or changed benefits as are from time to
time provided to the Company' s executives generally.
6. Expenses. The Company shall promptly pay or
reimburse Employee for all reasonable expenses incurred by him in connection
with the performance of his duties and responsibilities hereunder, including,
but not limited to, payment or reimbursement of reasonable expenses paid or
incurred for travel and entertainment relating to the business of the Company.
7. Termination.
(a) Termination for Cause. Employee may be terminated
from his employment hereunder, either before Term End or thereafter, and
without advance notice, by the
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Company for cause. For purposes hereof, cause shall mean: (i) violation of the
material terms of this Agreement, (ii) intentional commission of an act, or
failure to act, in a manner which constitutes dishonesty or fraud or which has
a direct material adverse effect on the Company or its business; (iii)
Employee's conviction of or a plea of guilty to any felony or crime involving
moral turpitude; (iv) continued incompetence, as determined by the chief
executive officer of the Company, using reasonable standards; (v) drug and/or
alcohol abuse which impairs Employees performance of his duties or employment;
(vi) breach of loyalty to the Company, whether or not involving personal
profit, as determined by the chief executive officer of the Company using
reasonable standards; or (vii) failure to follow the directions of the chief
executive officer of the Company within 20 days after notice to Employee of
such failure provided that the directions are not inconsistent with Employee's
duties and further provided that Employee is not directed to violate any law or
take any action that he reasonably deems to be immoral or unethical.
(b) Disability, Death. If Employee shall fail to or be
unable to perform the duties required hereunder because of any physical or
mental infirmity, and such failure or inability shall continue for any six (6)
consecutive months while Employee is employed hereunder, the Company shall have
the right to terminate this Agreement. Except as otherwise provided herein,
this Agreement shall terminate upon the death of Employee, and the estate of
Employee shall be entitled to receive all unpaid amounts due Employee hereunder
to such date of death.
(c) Termination Without Cause. The Company shall have
the right to terminate the employment of Employee at any time, without cause,
cause being determined under Section 7(a), upon thirty (30) days advance
written notice.
(d) Change in Control. For purposes of this Agreement, a
change in control of the Company shall mean (a) a change in control of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act of 1934
(Exchange Act); provided however, that without limitation, such a change in
control shall be deemed to have occurred if (i) any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Exchange Act) other than Employee
or any other person currently the beneficial owner of 10% or more of the
outstanding common stock of the Company, becomes the beneficial owner, directly
or indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities and (b) as
a result of such change in control Employee will not be offered a continuation
of his job after such change in control.
(e) Voluntary Termination. Employee may voluntarily
terminate his employment hereunder at any time, for any reason or for no
reason.
(f) Termination Compensation. If Employee's employment
hereunder is terminated pursuant to Sections 7(a), 7(b) or 7(e) of this
Agreement, the Company shall pay the Employee his full base salary through the
Termination Date, plus, within five (5) business days of the Termination Date,
any bonuses, incentive compensation, or other payments due which pursuant to
the terms of any compensation or benefit plan have been earned or vested at of
the Termination Date. If Employee's employment is terminated by the Company
under Section 7(c) without cause, or if there is a change in control of the
Company as defined in Section 7(d), all
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unexercised options granted to Employee under the Company's Incentive Stock
Plan or Amended Incentive Stock Plan shall accelerate and shall immediately
vest. If Employee's employment is terminated pursuant to Sections 7(c) or 7(d)
of this Agreement, the Company shall pay the Employee the following:
(i) within five (5) business days of the termination, his
full base salary through the Termination Date, plus any
bonuses, incentive compensation, or other payments due which
pursuant to the terms of any compensation or benefit plan have
been earned or vested as of the Termination Date;
(ii) within five (5) business days of the termination, to
compensate for all accrued but unpaid leave such as holidays
and vacation under the Company's paid leave plan, an amount
equal to the Employee's then current base salary multiplied
by the product of (A) the total number of leave days accrued,
divided by (B) the total number of work days in the fiscal
year in which the Termination Date occurs;
(g) as of the termination pursuant to Section 7(b), 7(c)
or 7(d), a continuation, on at least a monthly basis, of Employee's annual base
salary for one year following the Termination Date.
8. Covenant Not to Compete, Nonemployment,
Noninducement.
(a) Employee acknowledges that in the course of his
employment he will become familiar with the Company and its affiliates
confidential information concerning the Company and its affiliates and that his
services are of special, unique and extraordinary value to the Company and its
affiliates. Therefore, Employee agrees that, during his employment with the
Company, and for one year after Employee ceases to perform duties hereunder,
neither Employee nor any company with which Employee is affiliated as an
employee, consultant or independent contractor, will directly or indirectly (A)
engage in any business similar to the Business of the Company, as described
below, anywhere in the United States of America, or have interest directly or
indirectly in any Business; provided, however, that nothing herein shall
prohibit Employee from (i) owning in the aggregate not more than 5% of the
outstanding stock of any class of stock of a corporation so long as Employee
has no active participation in the business of such corporation; (ii)
affiliating with any company which may participate in the Business, so long as
that participation at the time of affiliation aggregates less than 10% of such
company's revenue; or (iii) directly or through an affiliate, acquiring,
merging or otherwise gaining control, or purchasing an interest in an
organization as long as the Business represents less than 10% of the acquiree's
revenue at the time of the transaction, (B) employ or retain as an
independent contractor any employee of the Company, or (C) recruit, solicit or
otherwise induce any employee of the Company to discontinue such employment
relationship. For purposes hereof, the Business shall consist of (A) delivery
of pharmaceuticals and supplies to correctional facilities, and (B) any other
business in which the Company is significantly engaged as of the date that
Employee ceases to perform duties hereunder.
(b) If, at the time of enforcement of this Section 8 a
court shall hold that the duration, scope or area restrictions stated herein
are unreasonable under circumstances then
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existing, the parties agree that the maximum duration, scope or area reasonable
under such circumstances shall be substituted for the stated duration, scope or
area.
(c) In the event of the breach by Employee of any of the
provisions of this Section 8, the Company, in addition and supplementary to
other rights and remedies existing in its favor, may apply to any court of law
or equity of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce or prevent any violations of the provisions
hereof.
9. Notices. All notices hereunder, to be effective,
shall be in writing and shall be deemed delivered when delivered by and or when
sent by first-class, certified mail, postage and fees prepaid, to the following
addresses or as otherwise indicated in writing by the parties:
(i) If to the Company:
America Service Group Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
(ii) If to Employee:
X. Xxxxxx Choppin
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxxxx, Xxxxxxxxx 00000
10. Assignment. This Agreement is based upon the
personal services of Employee and the rights and obligations of Employee
hereunder shall not be assignable except as herein expressly provided. This
Agreement shall inure to the benefit of and be enforceable by the Employee's
personal and legal representatives, executors, administrators, successors,
heirs, and distributees, devisees and legatees. If the Employee should die
while entitled to any payments hereunder, any amounts would still be payable to
his estate hereunder as if he would have continued to live. All such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the Employee's devisee, legatee or other designee and if
there is no such devisee, legatee or designee, to the Employee's estate.
11. Entire Agreement. This Agreement supersedes all
prior understandings and agreements with respect to the provisions hereof and
contains the entire agreement of the parties and may be amended only in
writing, signed by the parties hereto.
12. Severability. The provisions of this Agreement are
severable, and the invalidity of any provision shall not affect the validity of
any other provision. In the event that any arbitrator or court of competent
jurisdiction shall determine that any provision of this Agreement or the
application thereof is unenforceable because of the duration or scope thereof,
the parties hereto agree that said arbitrator or court in making such
determination shall have the
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power to reduce the duration and scope of each provision to the extent
necessary to make it enforceable, and that the Agreement in its reduced form
shall be valid and enforceable to the full extent permitted by law.
13. Non-exclusivity of Rights. Nothing in this Agreement
shall prevent or limit the Employee's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company
(except for any severance or termination policies, plans, programs or practices)
and for which the Employee may qualify, nor shall anything herein limit or
reduce such rights as the Employee may have under any other Agreement with the
Company. Amounts which are vested benefits or which the Employee is otherwise
entitled to receive under any plan or program of the Company shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
14. Governing Law. This Agreement shall be construed
under the governed by the internal laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as binding contract as of the day and year first above written.
AMERICA SERVICE GROUP INC.
By: /s/ Xxxxx Xxxxxxx
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EMPLOYEE:
By: /s/ Walker Chappin
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