Exhibit 10.22
OMEGA ORTHODONTICS, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of May 1, 1997, between XX. XXXX X. XXXXXXXX,
of Buffalo, New York (the "Employee") and OMEGA ORTHODONTICS, INC., a Delaware
corporation (the "Company").
WITNESSETH:
WHEREAS, the Employee desires to be employed by the Company, and the
Company desires to employ the Employee, on the terms, covenants and conditions
hereinafter set forth in this Agreement.
NOW, THEREFORE, for the reasons set forth above, and in consideration
of the mutual promises and agreements hereinafter set forth, the Company and the
Employee agree as follows:
1. Employment and Duties.
1.1 Employment. Subject to the terms and conditions set forth in this
Agreement, the Company hereby employs and engages the Employee to hold the title
of Director of Affiliate Programs and perform the duties of such position as
designated by the board of directors of the Company (the "Board of Directors").
The Employee hereby accepts such employment and agrees to serve the Company in
such capacity for the period of this Agreement.
1.2 Duties. The Employee's duties shall include: all design, scheduling
the installation and following up on the effectiveness of all the managerial
systems used by the Company's affiliated orthodontic practices as outlined in
the Affiliate Optimization Program, as revised from time to time; management of
the effectiveness and productivity of the consultants used to optimize and
maintain the affiliate practices' programs; and additional duties that the
Employee and the Company agree upon.
2. Term of Employment.
The term of this Agreement shall be for a period of three (3) years
commencing on the closing of the initial public offering of the Company's common
stock (the "Effective Date") and expiring at midnight on the day immediately
preceding the third anniversary of the Effective Date, unless terminated prior
to that date as provided in Section 7 of this Agreement. Commencing on the third
anniversary of the Effective Date, and on each anniversary thereafter, the term
of this Agreement shall be automatically extended for an additional year, unless
either party gives notice of termination as provided in Subsection 5.7 of this
Agreement.
3. Devotion to Duties.
The Employee agrees that during the period that he is employed
hereunder he shall devote the time necessary to complete his duties hereunder
and shall use his best efforts to promote
the interests of the Company. The parties acknowledge and agree that,
notwithstanding the foregoing, the Employee may continue his orthodontic
consulting business and may continue to pursue his academic and writing
endeavors; provided, however, that such endeavors shall neither materially
adversely affect or impair his ability to meet his obligations hereunder.
4. Compensation of Employee.
4.1. Affiliate Payments and Base Salary.During the term of this
Agreement, the Company shall pay to the Employee as compensation for the
services to be performed by the Employee hereunder as follows:
(a) Beginning on the Effective Date, the Company shall pay the
Employee $10,000 per month as an advance (the "Advance Amount") for
compensation earned according to the following schedule: (i) one-time
payments of Seven Thousand Five Hundred Dollars ($7,500) for each
orthodontic practice affiliated with the Company in which the Employee
initiates the optimization of the Omega Exceptional Practice Model (the
"Model") (the "New Affiliate Payments"); and (ii) Two Hundred Eight and
333/1000 Dollars ($208.333) per month for each orthodontic practice
affiliated with the Company in which the optimization of the Model was
previously initiated by the Employee (the "Existing Affiliate Payments"
and, collectively, with the New Affiliate Payments, the "Affiliate
Payments"). At the end of each three full calendar months following the
month in which the Effective Date occurs (a "Quarter"), the Company
shall review the Advance Amount and the Affiliate Payments for such
Quarter. If the Advance Amount exceeds the Affiliate Payments, the
Advance Amount for the next Quarter shall be reduced by the amount of
such excess.
(b) Beginning with the first month after the Company has
completed affiliations with an aggregate of fifteen orthodontic
practices, the Company shall pay the Employee at the rate of $10,000
per month (the "Base Salary") for that month and each month thereafter
during the remainder of the term of this Agreement.
(c) The Affiliate Payments and the Base Salary shall be payable
in semi-monthly installments in accordance with the Company's normal
payroll practice. Commencing on the third anniversary of the Effective
Date and on each anniversary thereafter, or as soon as practicable
thereafter, the Compensation Committee of the Board of Directors (the
"Compensation Committee"), or the Board of Directors if the
Compensation Committee is not then appointed, shall review the
Affiliate Payments or the Base Salary, as the case may be, and shall
authorize, in its discretion, an appropriate increase thereto.
4.2. Bonus. In addition to the compensation set forth elsewhere in this
Section 4, for each year or portion thereof during the term of this Agreement
and any extensions thereof, the Employee shall be eligible to receive a bonus in
an amount to be determined by the Compensation Committee, or the Board of
Directors if the Compensation Committee is not then
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appointed, in its discretion, based upon its evaluation of the Employee's
performance during such year or portion thereof.
The Employee shall also be eligible to participate in any program that
pays bonus compensation for finding orthodontic practices that affiliate with
the Company, if such a program is adopted by the Company. Such bonuses, if any,
would be payable to the Employee only with respect to orthodontic practices that
were previously clients of Full Optimization.
4.3. Benefits. Unless otherwise permitted by resolution of the Board of
Directors, the Employee shall not be entitled to participate, during the term he
is employed hereunder, in any regular employee benefit and deferred compensation
plans established by the Company.
4.4. Office and Secretary. The Employee shall provide his own office
and secretarial help as needed to perform his duties hereunder, subject to
reimbursement by the Company as provided in Subsection 4.5 hereof for providing
such office and secretarial help. The parties understand and agree that such
office shall be located at 00 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxx, unless the
parties agree otherwise.
4.5. Reimbursement of Expenses.The Company shall provide for the
payment or reimbursement of all reasonable and necessary expenses incurred by
the Employee in connection with the performance of his duties under this
Agreement. The parties understand and agree that the Employee may maintain a
charge card account in his name for his exclusive use for reimbursable expenses
and that the Company will reimburse the Employee utilizing the monthly charge
account statement. in accordance with the Company's expense reimbursement
policy, as such may change from time to time.
4.6 Incentive Stock Options. The Company shall grant to the Employee,
upon the execution of this Agreement, an incentive stock option under the
Company's Incentive Stock Plan to acquire 50,000 shares of the Company's Common
Stock, par value $.01 per share, at an exercise price equal to the initial
public offering price for the Company's Common Stock. Such option shall be fully
vested and exercisable on the first anniversary of the date of execution of this
Agreement.
5. Termination of Employment.
5.1. Termination For Cause. "Termination For Cause," as hereinafter
defined, may be effected by the Company at any time during the term of this
Agreement by written notification to the Employee pursuant to Subsection 5.7 of
this Agreement. Upon Termination For Cause, the Employee shall immediately be
paid all accrued salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of the Company in which the Employee is a participant to the full
extent of the Employee's rights under such plans, accrued vacation pay and any
appropriate business expenses incurred by the Employee in connection with his
duties hereunder, all to the date of termination, but the
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Employee shall not be paid any other compensation or reimbursement of any kind,
including without limitation, severance compensation.
"Termination For Cause" shall mean termination by the Company of the
Employee's employment by the Company by reason of the Employee's:
(i) Commission of a crime of moral turpitude or a violation of law
which results in criminal charges, fines or penalties or an order
which prevents the Employee from performing his duties hereunder;
(ii) Deliberate dishonesty towards, fraud upon, or deliberate injury
or attempted injury to the Company or any subsidiary or affiliate
thereof; or
(iii)Willful failure to perform material duties and responsibilities
of the Employee hereunder or a material breach of this Agreement
by the Employee, which failure or breach continues for more than
thirty (30) days after written notice is given to the Employee
pursuant to a two-thirds vote of all of the members of the Board
of Directors of the Company, such notice to set forth in
reasonable detail the nature of such failure or breach.
5.2. Termination Other Than For Cause. Notwithstanding any other
provisions of this Agreement, the Company or the Employee may effect a
"Termination Other Than For Cause," as hereinafter defined, at any time upon
giving written notice to the other party of such termination pursuant to
Subsection 5.7 of this Agreement. Upon any Termination Other Than For Cause, the
Employee shall immediately be paid all accrued salary, bonus compensation to the
extent earned, vested deferred compensation (other than pension plan or profit
sharing plan benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of the Company in which the Employee is a
participant to the full extent of the Employee's rights under such plans,
accrued vacation pay and any appropriate business expenses incurred by the
Employee in connection with his duties hereunder, all to the date of
termination, and all severance compensation provided in Subsection 6.2, but no
other compensation or reimbursement of any kind.
"Termination Other Than For Cause" shall mean:
(a) termination by the Company of the employment of the Employee with
the Company for any reason other than a termination under Section 5.1, 5.3 or
5.4 hereof;
(b) termination by the Employee of the Employee's employment with the
Company for Good Reason. Good Reason shall mean the occurrence of any of the
following events:
(i) a substantial adverse change, not consented to by the
Employee, in the nature or scope of the Employee's responsibilities,
authorities, powers, functions or duties from the responsibilities,
authorities, powers, functions or duties exercised by the Employee
immediately prior to the Change in Control; or
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(ii) a reduction in the Employee's annual base salary as in
effect on the date hereof or as the same may be increased from time to
time; or
(iii) the relocation of the Company's offices at which the
Employee is principally employed immediately prior to the date of a
Change in Control to a location more than twenty-five (25) miles from
such offices, provided that such relocation results in an addition of
more than ten (10) miles to the current commute of the Employee
immediately prior to the date of the Change in Control, or the
requirement by the Company for the Employee to be based anywhere other
than the Company's offices at such new location, except for required
travel on the Company's business to an extent substantially consistent
with the Employee's business travel obligations immediately prior to
the Change in Control; or
(iv) the failure by the Company to pay to the Employee any
portion of his compensation or to pay to the Employee any portion of
an installment of deferred compensation under any deferred
compensation program of the Company within fifteen (15) days of the
date such compensation is due without prior written consent of the
Employee; or
(v) the failure by the Company to comply with any term or
u provision under this Agreement; or
(vi) the failure by the Company to obtain an effective agreement
from any successor to assume and agree to perform this Agreement.
5.3. Termination by Reason of Disability. If, during the term of this
Agreement, the Employee, in the reasonable judgment of the Board of Directors,
has failed to perform his duties under this Agreement on account of illness or
physical or mental incapacity, and such illness or incapacity continues for a
period of more than twelve (12) consecutive months, the Company shall have the
right to terminate the Employee's employment hereunder by written notification
to the Employee pursuant to Subsection 5.7 of this Agreement and payment to the
Employee of all accrued salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of the Company in which the Employee is a participant to the full
extent of the Employee's rights under such plans and any appropriate business
expenses incurred by the Employee in connection with his duties hereunder, all
to the date of termination, with the exception of medical and dental benefits
which shall continue through the expiration of this Agreement, but the Employee
shall not be paid any other compensation or reimbursement of any kind, including
without limitation, severance compensation.
5.4. Death. In the event of the Employee's death during the term of
this Agreement, the Employee's employment shall be deemed to have terminated as
of the last day of the month during which his death occurs and the Company shall
pay to his estate or such
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beneficiaries as the Employee may from time to time designate all accrued
salary, bonus compensation to the extent earned, vested deferred compensation
(other than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of the
Company in which the Employee is a participant to the full extent of the
Employee's rights under such plans and any appropriate business expenses
incurred by the Employee in connection with his duties hereunder, and to the
date of termination, but the Employee's estate shall not be paid any other
compensation or reimbursement of any kind, including without limitation,
severance compensation.
5.5. Voluntary Termination. In the event of a "Voluntary Termination,"
as hereinafter defined, the Company shall immediately pay all accrued salary,
bonus compensation to the extent earned, vested deferred compensation (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of the
Company in which the Employee is a participant to the full extent of the
Employee's rights under such plans and any appropriate business expenses
incurred by the Employee in connection with his duties hereunder, all to the
date of termination, but no other compensation or reimbursement of any kind,
including without limitation, severance compensation.
"Voluntary Termination" shall mean termination by the Employee of the
Employee's employment by the Company other than (i) for Good Reason as described
in Section 5.2, (ii) termination by reason of the Employee's disability as
described in Subsection 5.3, and (iii) termination by reason of the Employee's
death as described in Subsection 5.4.
5.6. Termination Upon a Change in Control. In the event of a
"Termination Upon a Change in Control," as hereinafter defined, the Employee
shall immediately be paid all accrued salary, bonus compensation to the extent
earned, vested deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Company in which the Employee is a participant
to the full extent of the Employee's rights under such plans and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, and all severance compensation
provided in Subsection 6.1, but no other compensation or reimbursement of any
kind.
"Termination Upon a Change in Control" shall mean Termination Other
Than For Cause occurring within twenty-four (24) months after a "Change in
Control," as hereinafter defined.
"Change in Control" shall mean (i) the date on which the Company first
determines that any person and all other persons which constitute a group,
within the meaning of Section 13(d)(3) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), have acquired direct or indirect
beneficial ownership, with the meaning of Rule 13d-3 under the Exchange Act, of
twenty percent (20%) or more of the Company's outstanding securities, unless a
majority of the "Continuing Directors," as hereinafter defined, approves the
acquisition not later than ten (10) business days after the Company makes that
determination, or (ii) the first day on which a majority of the members of the
Board of Directors are not Continuing Directors. Notwithstanding the foregoing,
issuances of the Company's securities in connection with the
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Company's initial public offering, expected to be completed during 1997, shall
not constitute or be deemed to constitute a "Change in Control."
"Continuing Directors" shall mean, as of any date of determination, any
member of the Board of Directors who (i) was a member of the Board of Directors
on December 31, 1996, (ii) has been a member of the Board of Directors for the
two (2) years immediately preceding such date of determination, or (iii) was
nominated for election or elected to the Board of Directors with the affirmative
vote of the greater of (A) a majority of the Continuing Directors who were
members of the Board of Directors at the time of such nomination or election or
(B) at lease three (3) Continuing Directors.
5.7. Notice of Termination. The Company may effect a termination of
this Agreement pursuant to the provisions of this Section 5 upon giving ninety
(90) days' written notice to the Employee of such termination. The Employee may
effect a termination of this Agreement pursuant to the provisions of this
Section 5 upon giving ninety (90) days' written notice to the Company of such
termination.
5.8. Limitation on Termination Xxxxxxxx.Xx payments by the Company to
or for the benefit of the Employee under this Agreement or any other agreement
or plan pursuant to which he is entitled to receive payments or benefit shall be
non-deductible to the Company by reason of the operation of Section 280G of the
Internal Revenue Code of 1986, as amended, (the "Code") or any successor
provision relating to parachute payments. Accordingly, and notwithstanding any
other provision of this Agreement or any such agreement or plan, if by reason of
the operation of said Section 280G, any such payments exceed the amount which
can be deducted by the Company, such payments shall be reduced to the maximum
amount which can be deducted by the Company. To the extent that payments
exceeding such maximum deductible amount have been made to or for the benefit of
the Employee, such excess payments shall be refunded to the Company with
interest thereon at the applicable Federal Rate determined under Section 1274(d)
of the Code, compounded annually, or at such other rate as may be required in
order that no such payments shall be non-deductible to the Company by reason of
the operation of said Section 280G. To the extent that there is more than one
method of reducing the payments to bring them within the limitations of said
Section 280G, the Employee shall determine which method shall be followed,
provided that if the Employee fails to make such determination within forty-five
(45) days after the Company has sent him written notice of the need for such
reduction, the Company may determine the method for such reduction in its sole
discretion.
5.9 Determination of Termination Benefits. If any dispute between the
Company and the Employee as to any of the amounts to be determined under this
Section 5, or the method of calculating such amounts, cannot be resolved by the
Company and the Employee, either party after giving three (3) days written
notice to the other, may refer the dispute to a partner in the Boston office of
a firm of independent certified public accountants selected jointly by the
Company and the Employee. The determination of such partner as to the amount to
be determined under this Section 5 and the method of calculating such amounts
shall be final and binding on both the Company and the Employee. The Company
shall bear the costs of any such determination.
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6. Severance Compensation.
6.1. Termination Upon Change in Control or Termination Other Than For
Cause. In the event the Employee's employment is terminated in a Termination
Upon a Change in Control or a Termination Other Than For Cause, the Employee
shall be paid as severance compensation the Base Salary (at the rate payable at
the time of such termination ) for the longer of (a) twelve (12) months or (b)
the remaining term of this Agreement, on the dates specified in Subsection 4.1.
Notwithstanding any provision in this Subsection 6.1 to the contrary,
the Employee may, in the Employee's sole discretion, by delivery of a notice to
the Company within thirty (30) days following a Termination Upon a Change in
Control, elect to receive from the Company a lump sum severance payment by bank
cashier's check equal to the present value of the flow of cash payments that
would otherwise be paid to the Employee pursuant to this Subsection 6.1. Such
present value shall be determined as of the date of delivery of the notice of
election by the Employee and shall be based on a discount rate equal to the
interest rate on 90-day United States Treasury bills, as reported in the Wall
Street Journal, or similar publication, on the date of delivery of the election
notice. If the Employee elects to receive a lump sum severance payment, the
Company shall make such payment to the Employee within ten (10) days following
the date on which the Employee notifies the Company of the Employee's election.
In addition to the severance payment payable under this Subsection 6.1,
the Employee shall be entitled to an accelerated vesting of any awards granted
to the Employee under the Company's Incentive Stock Plan.
6.2. Termination Upon Any Other Event. In the event of a Voluntary
Termination, Termination For Cause, termination by reason of the Employee's
disability pursuant to Subsection 5.5 or termination by reason of the Employee's
death pursuant to Subsection 5.6, the Employee or his estate shall not be paid
any severance compensation.
7. Obligations Contingent on Performance.
The obligations of the Company under this Agreement, including its
obligation to pay the compensation provided for herein, shall be contingent upon
the Employee's performance of his obligations under this Agreement.
8. Confidentiality.
The Employee agrees to hold in strict confidence all information
concerning any matters affecting or relating to the business of the Company,
including without limiting the generality of the foregoing its manner of
operation, plans, protocols, processes, computer programs, tenant lists, client
lists, marketing information and analysis, or other data, without regard to
whether all of the foregoing matters will be deemed confidential or material.
Such information does not include the systems, forms, books, manuals, concepts
and anything relating to the Employee's
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copyrighted material referred to in Section 9 hereof. The Employee agrees that
he will not, directly or indirectly, use the Company's information for the
benefit of others than the Company or disclose or communicate any of such
information in any manner whatsoever other than to the directors, officers,
employees, agents and representatives of the Company who need to know such
information, who shall be informed by the Employee of the confidential nature of
such information and directed by the Employee to treat such information
confidentially. Upon the Company's request, the Employee shall return all
information furnished to him related to the business of the Company.
The above limitations on use and disclosure shall not apply to
information which the Employee can demonstrate: (a) was known to the Employee
before joining the Company and was not contributed to the Company by the
Employee; (b) is learned by the Employee from a third party entitled to disclose
it; or (c) becomes known publicly other than through the Employee. The parties
hereto stipulate that all such information is material and confidential and
gravely affects the effective and successful conduct of the business of the
Company and the Company's good will, and that any breach of the terms of this
Section 8 shall be a material breach of this Agreement. The terms of this
Section 8 shall remain in effect during the term of this Agreement and for a
period of two (2) years thereafter.
9. Use of Proprietary Information.
9.1 Company Proprietary Information. The Employee recognizes that the
Company possesses a proprietary interest in all of the information described in
Section 8 and has the exclusive right and privilege to use, protect by
copyright, patent or trademark, manufacture or otherwise exploit the processes,
ideas and concepts described therein to the exclusion of the Employee, except as
otherwise agreed between the Company and the Employee in writing. The Employee
expressly agrees that any products, inventions, discoveries or improvements made
by the Employee, his agents or affiliates, during the term of this Agreement,
based on or arising out of the information described in Section 8 shall be the
property of and inure to the exclusive benefit of the Company. The Employee
further agrees that any and all products, inventions, discoveries or
improvements developed by the Employee and intended solely for the use of the
Company (whether or not able to be protected by copyright, patent or trademark)
during the term or any extension hereof shall be promptly disclosed to the
Company and shall be used exclusively by the Company.
9.2 Employee Proprietary Information. The Company recognizes that the
forms, systems and concepts used to develop certain of the Company's manuals,
forms, systems and concepts are copyrighted property of the Employee and The
Bio-Engineering Co., of Buffalo, NY (the "Employee Proprietary Information"),
and that the Employee and The Bio-Engineering Co. retain the legal rights to the
Employee Proprietary Information and may continue to use, publish and do
whatever the Employee and The Bio-Engineering Co. deem appropriate with the
Employee Proprietary Information. The Company acknowledges and agrees that the
Company may only use the Employee Proprietary Information for the betterment of
its affiliated orthodontic practices and may not publish, sell or in any way use
the Employee Proprietary Information
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for any other purpose or transfer to any other entity that the Company wishes
to, without the prior written consent of the Employee and The Bio-Engineering
Co.
10. Non-Competition Agreement.
10.1. Non-Competition. The Employee agrees that, during the term of
this Agreement and for a period of one (1) year thereafter, he shall not,
without the prior written consent of the Company, directly or indirectly, own,
manage, operate, control, be connected with as an officer, employee, partner,
consultant or otherwise, or otherwise engage or participate in, except as an
employee of the Company, or any corporation directly or indirectly controlled by
it, any corporation or other business entity engaged in providing management
services to the orthodontic industry, except his orthodontic consulting business
referred to in Section 3 hereof. Notwithstanding the foregoing, the ownership by
the Employee of less than two percent (2%) of any class of the outstanding
capital stock of any corporation conducting a business competitive with the
Company which is regularly traded on a national securities exchange or an
over-the-counter market shall not be a violation of the foregoing covenant.
The Employee hereby acknowledges and agrees that the provisions set
forth in this Subsection 10.1 constitute a reasonable restriction on his ability
to compete with the Company.
10.2. Non-Solicitation. Without the prior written consent of the
Company, during the term of this Agreement and for a period of one (1) year
thereafter, the Employee shall not contact or solicit, directly or indirectly,
any customer, client, affiliate orthodontist or orthodontic entity, tenant or
account whose identity the Employee obtained through association with the
Company, regardless of the geographical location of such customer, client,
affiliate orthodontist or orthodontic entity, tenant or account, nor shall the
Employee, directly or indirectly, entice or induce, or attempt to entice or
induce, any other employee of the Company to leave such employ, nor shall the
Employee employ any such person in any business similar to or in competition
with that of the Company during the term of this Agreement and for a period of
one (1) year thereafter. The Employee hereby acknowledges and agrees that the
provisions set forth in this Subsection 10.2 constitute a reasonable restriction
on his ability to compete with the Company.
10.3. Savings Provision. The parties hereto agree that, in the event a
court of competent jurisdiction shall determine that the geographical or
durational elements of this covenant are unenforceable, such determination shall
not render the entire covenant unenforceable. Rather, the excessive aspects of
the covenant shall be reduced to the threshold which is enforceable, and the
remaining aspects shall not be affected thereby.
10.4. Equitable Relief. The Employee acknowledges that the extent of
damages to the Company from a breach of Sections 8, 9 and 10 of this Agreement
would not be readily quantifiable or ascertainable, that monetary damages would
be inadequate to make the Company whole in case of such a breach, and that there
is not and would not be an adequate remedy at law for such a breach. Therefore,
the Employee specifically agrees that the Company is entitled to injunctive or
other equitable relief from a breach of Sections 8, 9 and 10 of this Agreement,
and
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hereby waives and covenants not to assert against a prayer for such relief that
there exists an adequate remedy at law, in monetary damages or otherwise.
11. Entire Agreement.
This Agreement contains the complete agreement concerning the
employment arrangement between the parties and shall, as of the effective date,
supersede all other agreements or arrangements between the parties with regard
to the subject matter hereof.
12. Binding Agreement.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns. The obligations of the Company under this Agreement shall not be
terminated by reason of any liquidation, dissolution, bankruptcy, cessation of
business or similar event relating to the Company. This Agreement shall not be
terminated by reason of any merger, consolidation or reorganization of the
Company, but shall be binding upon and inure to the benefit of the surviving or
resulting entity.
13. Modification.
No waiver or modification of this Agreement or of any covenant,
condition or limitation herein contained shall be valid unless in writing and
duly executed by the party to be charged therewith and no evidence of any waiver
or modification shall be offered or received in evidence of any proceeding,
arbitration or litigation between the parties hereto arising out of or affecting
this Agreement, or the rights or obligations of the parties thereunder, unless
such waiver or modification is in writing, duly executed as aforesaid.
14. Severability.
All agreements and covenants contained herein are severable, and in the
event any of them shall be held to be invalid or unenforceable by any court of
competent jurisdiction, this Agreement shall be interpreted as if such invalid
agreements or warrants were not contained herein.
15. Manner of Giving Notice
All notices, requests and demands to or upon the respective parties
hereto shall be sent by hand, certified mail, overnight air courier service or
telecopier (if within a reasonable time a permanent copy is given by any of the
other methods described above), in each case with all applicable charges paid or
otherwise provided for, addressed as follows or to such other address as may
hereafter be designated in writing by the respective parties hereto:
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To Company:
Omega Orthodontics, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Employee:
Xxxx X. Xxxxxxxx
00 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Such notices, requests and demands shall be deemed to have been given or made on
the date of delivery if delivered by hand or by telecopy and on the next
following date if sent by mail or by air courier service.
16. Waiver.
If either party should waive any breach of any provision of this
Agreement, such party shall not thereby be deemed to have waived any preceding
or succeeding breach of the same or any other provision of this Agreement.
17. Remedies.
In the event of a breach of this Agreement, the non-breaching party
will be entitled to such legal and equitable relief as may be provided by law,
and shall further be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred in enforcing the non-breaching party's
rights hereunder.
18. Headings.
The headings have been inserted for convenience only and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
19. Choice of Law.
It is the intention of the parties hereto that this Agreement and the
performance hereunder be construed in accordance with, under and pursuant to the
laws of the State of Delaware without regard to the jurisdiction in which any
action or special proceeding may be instituted.
20. Counterparts.
This Agreement may be executed in two (2) counterparts, each of which
shall be deemed an original, and both of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first stated above.
COMPANY:
OMEGA ORTHODONTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
EMPLOYEE
/s/ Xxxx X. Xxxxxxxx
--------------------------
Xxxx X. Xxxxxxxx
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