Exhibit 10.1
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DENTAL PATIENT CARE AMERICA, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), dated the 1st day of July, 2003, by
and among DENTAL PATIENT CARE AMERICA, INC. ("Company"), a Utah corporation with
principal offices at 0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, XX
00000, and XXXXXXX XXXXX ("Employee").
RECITALS
WHEREAS, the Company desires to continue to employ the Employee and the
Employee desires to continue to be employed by the Company; and
WHEREAS, the Company and the Employee wish to enter into this Agreement
to replace the existing employment agreement and to reform their relationship on
the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Other Prior Agreements. Any and all agreements existing between
Employee and the Company, whether for employment or otherwise, are hereby
rescinded and made null, void, and of no effect whatsoever.
2. Employment. The Company hereby employs the Employee in the capacity
or capacities for the Company and with the duties as set forth in this
Agreement. The Employee hereby accepts such employment on the terms and
conditions contained herein. The Employee represents and warrants that neither
the execution of this Agreement nor the performance of the duties and
obligations hereunder will violate any agreement to which the Employee is a
party or by which the Employee is bound.
3. Term of Employment. Employment under this Agreement shall continue
the employment relationship begun at 5:00 PM on April 1, 1998, which has
proceeded to the date hereof uninterrupted. This Agreement shall continue from
the Effective Date for a period of 5 years or until otherwise terminated as
provided herein.
(a) Termination for Cause. The Company may terminate the
Employee's employment at any time for cause.
(b) Termination by Employee. The Employee may terminate the
employment at any time by giving the Company written notice of such
termination at least 30 days prior to the date on which termination
shall take effect, which effective date shall be specified in such
written notice.
(c) Termination by Death. If the Employee dies, the employment
hereunder shall be deemed to cease as of the date of death, and the
Company shall promptly pay to the Employee's surviving spouse and/or
children any and all compensation due together with any accrued equity
in Company.
4. Place of Performance. In connection with the employment by the
Company, the Employee shall be based at the Company's principal offices which,
as of the date of this Agreement, are located in Salt Lake City, Utah.
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5. Compensation.
(a) Base Compensation. As compensation for services hereunder, the
Company will pay to the Employee annual compensation of Two Hundred
Forty Thousand dollars ($240,000) payable in substantially equal
installments made twice each month. Compensation pursuant to this
subparagraph may be increased from time to time.
(b) Bonuses. Employee shall receive bonuses and stock option
awards in accordance with the compensation formula set forth in Exhibit
A attached hereto and by this reference incorporated herein as though
fully included in the body of this Agreement.
(c) Expenses. During the term of the employment hereunder, the
Company will pay or reimburse Employee for all reasonable travel,
subsistence and other business expenses incurred by the Employee in
connection with the services performed hereunder. The Employee shall
account to the Company for such expenses in accordance with Company
policy.
(d) Employee Benefit Programs. The Employee shall be entitled to
participate in all employee benefit programs which the Company may
provide or make available to the Employee or to salaried employees of
the Company generally, whether in effect on the date of execution of
this Agreement or established thereafter, including life insurance,
healthcare insurance or other benefits, long-term disability insurance,
and profit sharing. All such benefits shall be available to the
Employee during the employment pursuant to the terms of this Agreement.
(e) Vacations. The Employee shall be entitled to twenty-five (25)
days paid vacation in each calendar year. The Employee shall also be
entitled to all paid holidays given to the salaried employees of the
Company generally.
(f) Deferred or Waived Compensation. The Company and Employee have
by agreement waived or deferred the payment of substantial compensation
owed to Employee during the period April 1998 to the date of this
Agreement. The parties hereby acknowledge that such amounts that were
deferred remain due and payable to Employee. Employee and the Company
may agree to waive or defer some or all compensation due under this
Agreement, with deferrals running to a date either agreed or
necessitated by funds available to the Company.
(g) Pre-Organization Costs. Employee has paid costs and expenses
associated with the organization of the Company, which amounts have not
yet been paid. As soon as practicable, the Company shall honor the
presentation of a statement and receipts claiming reimbursement for
these costs and expenses.
6. Title and Job Responsibilities; Directors and Officers Insurance
Coverage The Employee shall be employed as the CHIEF EXECUTIVE OFFICER of the
Company and shall have those duties and responsibilities legally associated with
that title as well as those additional responsibilities assigned by the Board of
Directors of the Company. Moreover, Employee agrees to cast his shares and to
accept the casting of other shares to elect him a Director of the Company. To
the extent practicable, the Company shall put in place and maintain reasonable
levels of Directors and Officers' Liability Insurance and shall provide full
application and coverage of the same for Employee.
7. Extent of Services; Restrictive Covenant. The Employee will devote
such business time, attention and energy to the business of the Company as he
deems necessary to fulfill his duties, and shall not, during the term of his
employment with the Company, engage in any business or activity in the United
States of America or elsewhere which is competitive to the business or other
interests of the Company. The term "business of the Company" shall include any
venture or project commenced by the Company prior to the termination of the
Employee's employment. If any court determines that the duration or geographical
limit of any restriction contained in this paragraph is unenforceable, it is the
intention of the parties that the restrictive covenant set forth herein shall
not thereby be terminated but shall be deemed amended to the extent required to
render it valid and enforceable, such amendment to apply only with respect to
the operation of this paragraph in the jurisdiction of the court that has made
the adjudication. THE COMPANY ACKNOWLEDGES THAT EMPLOYEE HAS OTHER BUSINESS
INTERESTS AND RESPONSIBILITIES OUTSIDE OF THE COMPANY, AND THESE OUTSIDE
INTERESTS SHALL NOT BE A CAUSE FOR TERMINATION OF EMPLOYMENT UNLESS EMPLOYEE
VIOLATES HIS DUTY OF LOYALTY TO THE COMPANY IN CONNECTION WITH ACTIVITIES
ENGAGED IN OUTSIDE OF THE COMPANY.
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8. Non-disclosure. Except as the Company may otherwise consent in
writing, the Employee shall not disclose or make any use of, at any time either
during or subsequent to the Employee's employment by the Company, any
confidential information, knowledge or data of the Company which the Employee
may produce or obtain during the course of the employment unless and until that
information legitimately shall become public knowledge.
9. Injunctive Relief. The parties recognize that the services to be
rendered under this Agreement by the Employee are of special, unique and
extraordinary character, and agree that in the event of the violation or
prospective violation by either party of the terms and conditions hereof, the
other party shall be entitled to institute and prosecute proceedings in any
court of competent jurisdiction and venue, to enjoin such violation or of the
continuance thereof without the necessity of proving actual damages and to
obtain damages if any violation has occurred. The remedies herein provided for
shall be in addition to and not in lieu of any other remedies available to such
party under law.
10. Default. An event of default under the terms of this Agreement
shall include but not be limited to the following:
On the part of the Employee:
(a) Malfeasance of office or breach of any fiduciary duty to the
Company or its shareholders;
(b) Any act constituting felony criminal conduct under state or
federal law;
On the part of the Company:
(c) Failure to make payments to the Employee as required by this
Agreement.
(d) Failure to maintain Employee in the position provided herein
and with the status and good will normally accorded to that position.
11. Remedies. In the event of breach or default hereunder, the Employee
and the Company are granted but not limited to the remedies set forth in this
paragraph.
(a) Upon default by the Company, Employee shall have the following
remedies:
1. Specific performance of the terms and obligations of the
Agreement;
2. Acceleration of all compensation owing Employee through the full
five year term of the Agreement, including projected bonuses.
These payments are unsubordinated to any other obligation of the
Company;
3. Removal and/or a revocation of any and all restrictions on trading
selling, or liquidating any stock, stock options and/or warrants
of the Company, whatsoever, issued or owing to Employee;
4. Revocation of the obligations and duties of the Employee set forth
under the terms of this Agreement including but not limited to any
duties, whatsoever, to refrain from competing with the Company's
business.
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(b) Upon default by the Employee, the Company shall have the
following remedies:
1. All loans made by the Company to the Employee, including the loan
described in paragraph 5 (c) hereof, shall be immediately due and
payable to the Company;
2. All compensation to the Employee shall be immediately terminated
and any right of Employee to future compensation under this
Agreement shall be extinguished;
3. All stock options, and warrants issued to or owing the Employee
shal1 be immediately forfeited and returned to the Company.
12. General Provisions.
(a) Notices. For purposes 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 when delivered or mailed by
United States registered or certified mail, return receipt requested,
postage prepaid, addressed to the respective parties at the address set
forth as follows:
Employee: Xxxxxxx Xxxxx
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Company: Dental Patient Care America, Inc.
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
(b) Waiver of Breach. The waiver by the Company of a breach of any
provision of this Agreement by the Employee shall not operate or be
construed as a waiver of any subsequent breach by the Employee.
(c) Assignment. This Agreement is binding on the parties hereto,
their heirs, successors and assigns, and may not be assigned by the
Employee.
(d) Controlling Law. This Agreement is entered into and shall be
construed in accordance with the laws of the State of Utah.
(e) Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or any breach hereof, shall be settled by a
board of arbitrators in accordance with the rules of the American
Arbitration Association then in effect in the State of Utah, and
judgment upon any award rendered by the arbitrator(s) may be entered
into any court having jurisdiction thereof; provided, however, that the
Company shall be entitled to seek injunctive relief as provided in
Section 7 hereof. The board of arbitrators shall consist of one
arbitrator to be appointed by the Company, one by the Employee, and one
by the two arbitrators so chosen. The arbitration shall be held in Salt
Lake City, Utah, or such other place as may be agreed upon at the time
by the Employee and the Company. The cost of arbitration shall be borne
among the parties to the arbitration as determined by the
arbitrator(s).
(f) Withholding. Anything in this Agreement to the contrary
notwithstanding, all payments required to be made by the Company
hereunder to the Employee or on his behalf shall be subject to the
withholding of such amounts relating to taxes as the Company may
reasonably determine it should withhold pursuant to any applicable law
or regulation. In lieu of withholding such amounts, in whole or in
part, the Company may, in its sole discretion, accept other provisions
for payment of taxes and withholdings as required by law, provided it
is satisfied that all requirements of law affecting its
responsibilities to withhold have been satisfied.
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(g) Entire Agreement. This Employment Agreement contains the
entire understanding of the parties with respect to the subject matter
hereof and supersedes all other agreements between the Employee and the
Company, whether written or oral.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
DENTAL PATIENT CARE AMERICA, INC. EMPLOYEE:
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxx
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Its: President Xxxxxxx Xxxxx
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