EXHIBIT 10.83
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of
_____________, 1997 (the "Effective Date"), by and between Castle Dental Centers
of Texas, Inc., a Texas corporation (the "Company"), and Xxxxxx X. Xxxxxxx
("Consultant").
RECITALS:
Prior to the date hereof, Consultant was an employee of Southwest Dental
Associates, L.C., which along with the Company is a party to that certain Option
Agreement dated as of ___________, 1997 (the "Option Agreement"). As a condition
to the consummation of the transactions contemplated by the Option Agreement and
as an inducement for the Company and Southwest Dental Associates, L.C. to
perform their respective obligations under the Option Agreement, the Company and
Consultant have entered into this Agreement.
The parties agree as follows:
ARTICLE I
1.1 CONSULTING RELATIONSHIP.
(a) The Company agrees to, and hereby does, retain Consultant, on the
terms and conditions set forth herein, to provide consulting services to the
Company as requested from time to time by the Company's senior management.
(b) Consultant shall devote approximately 100 hours per month in
performing the services contemplated hereby for the benefit and advantage of the
Company, provided, however, that Consultant shall not receive any additional
compensation for devoting more than 100 hours per
month in such capacity. Consultant shall use her reasonable best efforts to
promote the interests of the Company.
ARTICLE II
2.1 SALARY. As compensation for her service during the term of this
Agreement (or until terminated pursuant to the provisions hereof), the Company
shall pay Consultant a salary at the rate of $50,000 per annum payable
semi-monthly. Such Base Salary shall not be subject to withholding for any
prescribed federal and state income tax, social security or other items, such
matters being the sole responsibility of the Consultant.
2.2 REIMBURSEMENT OF EXPENSES. The Company shall reimburse all reasonable
travel and entertainment expenses incurred by Consultant in connection with the
performance of her duties pursuant to this Agreement, which have been approved
by the Company in advance. Consultant shall provide the Company with written
expense reports of her expenses in accordance with the usual customary practice
of the Company.
ARTICLE III
3.1 TERM. The term of this Agreement shall commence on the date hereof and
end on _______________, 2000 subject to the right of either party to terminate
this Agreement as provided below. The date on which this Agreement is terminated
is referred to hereunder as the "Termination Date".
3.2 DEATH; DISABILITY. Subject to the provisions of Section 3.5(a), this
Agreement shall be automatically terminated on the death of Consultant or on the
permanent disability of Consultant if she is no longer able, with reasonable
accommodation, to perform her consulting services to the Company. In the event
of Consultant's disability, this Agreement shall terminate automatically on
written notice of termination by the Company.
3.3 TERMINATION WITHOUT CAUSE. Either the Company or Consultant may
terminate this Agreement at any time, without cause, by giving the other thirty
(30) days' written notice of termination.
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3.4 TERMINATION WITH CAUSE. In addition to the Company's right to
terminate this Agreement without cause as provided in Section 3.3 hereof, the
Company may terminate this Agreement for "Cause." "Cause" means the termination
by the Company of Consultant's retention for any of the following grounds:
(a) the commission of any act of fraud on the part of Consultant
resulting or intending to result in personal gain or enrichment at the expense
of the Company;
(b) misappropriation, embezzlement, theft or willful and material
damage of or to any asset of the Company or the use of the Company funds or
assets for any illegal purpose;
(c) a good faith determination by the Board of Directors of the
Company that Consultant has violated this Agreement or committed an act of gross
negligence or willful misconduct (in the case of a breach, following notice
thereof to Consultant by the Company and a thirty day period thereafter within
which Consultant shall have the opportunity to cure such breach) that has or is
reasonably expected to have a material adverse effect on the business or affairs
of the Company; or
(d) the commission of any felony on the part of Consultant which, in
the sole discretion of the Board of Directors of the Company, materially and
adversely, directly or indirectly, affects the name or goodwill of the Company.
A notice of termination pursuant to this Section 3.4 shall be in writing
and shall state the alleged reason for termination. Within not less than five
(5) nor more than twenty (20) days after such notice, Consultant shall be given
the opportunity to appear before the Board of Directors of the Company, or a
committee thereof, to rebut or dispute the alleged violation. If the Board of
Directors or committee determines, by vote of a majority of the directors other
than Consultant (if Consultant is then a director), that one or more grounds
exist for termination of Consultant for Cause, the Company may immediately
terminate Consultant's relationship under this Section 3.4. The Company may
elect, during the pendency of such inquiry, to relieve Consultant of her regular
duties.
3.5 SEVERANCE PAY. In the event of termination, Consultant shall be
entitled to compensation (the "Severance Pay") in accordance with the following:
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(a) If (i) Consultant voluntarily terminates her consulting
relationship, or (ii) the Company terminates this Agreement for Cause, or (iii)
if Consultant's consulting relationship is terminated by reason of her death or
disability, Consultant shall not be entitled to receive any additional fees
beyond those earned or accrued as of the effective date of the termination of
her consulting relationship.
(b) If Consultant's consulting relationship hereunder is terminated
prior to the expiration of the term of this Agreement, and such termination is
either (i) due to a breach of this Agreement by the Company, or (ii) by the
Company and not for Cause, Consultant shall be entitled to Severance Pay in an
amount equal to the amount of the consulting fees that the Consultant would have
earned for the six months following the effective date of termination (but in no
event to extend beyond the Term described in Section 3.1 hereof), payable at
such time or times as would have been paid to Consultant had she maintained her
consulting relationship with the Company through the term of this Agreement;
provided, however, prior to the termination of this Agreement as the result of a
breach hereof by the Company, Consultant shall give written notice of such
breach and the Company shall have a thirty day period within which to cure such
breach.
3.6 EFFECT OF TERMINATION ON AGREEMENT. Any termination of Consultant's
consulting relationship shall not release either the Company or Consultant from
their respective obligations under this Agreement that are required to be
performed subsequent to the date of such termination, including but not limited
to those obligations set forth under Articles III and IV.
3.7 PAYMENTS TO ESTATE. If Consultant should die before all amounts
payable to her pursuant to Section 3.5 have been paid, such unpaid amounts shall
be paid to Consultant's estate.
ARTICLE IV
4.1 NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Consultant
understands and agrees that her retention by the Company creates a relationship
of confidence and trust between herself and the Company with respect to
Confidential Information (as defined below). Consultant recognizes that she will
have access to and knowledge of Confidential Information. Consultant will not,
during or after the term of her consulting relationship with the Company, in
whole or in part, disclose such Confidential Information to any person, firm,
corporation, association, or other entity for any reason or purpose whatsoever,
nor shall she make use of any such Confidential Information for her own purposes
or for the purposes of others; provided, however, that nothing in this Article
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shall be construed to prohibit the disclosure of such Confidential Information
by the Consultant (i) to an officer, director, employee or agent of the Company;
(ii) as is reasonably necessary for the performance of her duties and
responsibilities under this Agreement; or (iii) as otherwise required by law. If
Consultant is required by law to disclose "Confidential Information," Consultant
shall notify the Company's Board of Directors, in writing, of the nature of such
disclosure and the Confidential Information to be disclosed, as soon as is
possible and/or practical, and permit the Company the opportunity to contest or
limit such disclosure.
4.2 CONFIDENTIAL INFORMATION DEFINED. The term "Confidential Information"
shall mean and include any and all records, computer programs, data, patent
applications, trade secrets, customer lists, customer databases, video programs
and programming, proprietary information, technology, pricing policies,
financial information, methods of doing business, acquisition practices, policy
and/or procedure manuals, training and recruiting procedures, accounting
procedures, the status and content of the Company's contracts with its
customers, the Company's business philosophy, and servicing methods and
techniques at any time used, developed, or investigated by the Company, before
or during Consultant's tenure of retention, or other information of any kind
expressed or recorded on any medium arising out of, concerning, or acquired in
connection with the research, development, commercialization and other
activities of the Company; but "Confidential Information" does not include
information (i) generally known or available in the industry, through no fault
of Consultant, or (ii) available from a third party without violation of any
duty of confidentiality by Consultant or others.
4.3 DELIVERY OF MATERIALS. Consultant further agrees to deliver to the
Company at the termination of her retention or at any other time upon request by
the Company, all correspondence, memoranda, notes, records (including computer
records and data), drawings, sketches, plans, customer lists, and other
documents, which are made, composed, or received by Consultant, solely or
jointly with others, during the term of her retention and which are in
Consultant's possession, custody, or control at such date and which are related
in any manner to the past, present or anticipated business of the Company.
ARTICLE V
5.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties and their heirs, legal representatives, successors and assigns. The
Company may assign its interest in this Agreement, and all covenants, conditions
and provisions hereunder shall inure to the benefit of
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and be enforceable by its assignee or successor in interest. The rights and
obligations of Consultant under this Agreement are personal to her, and no such
rights, benefits or obligations shall be assignable, except that her personal
representatives and heirs may enforce the obligations of the Company hereunder.
5.2 WAIVER OF BREACH. The waiver by any party to this Agreement of a
breach or violation of any provisions hereof shall not operate or be construed
to be a waiver of any subsequent breach hereof.
5.3 NOTICES. Any and all notices required or permitted to be given under
this Agreement shall be sufficient if furnished in writing and given in person,
or shall be deemed given five (5) days after sent by certified mail, return
receipt requested, to the address as set forth below on the signature pages of
this Agreement. If any party hereto desires to amend its address hereunder, that
party shall send written notice of the new address to all other parties hereto.
5.4 GOVERNING LAW. This Agreement shall be interpreted, construed and
governed in accordance with the laws of the State of Texas without regard to
conflict of laws provision. This Agreement is performable in Xxxxxx County,
Texas.
5.5 HEADINGS. The paragraph headings contained in this Agreement are for
convenience only, and shall in no manner be construed to be part of this
Agreement.
5.6 COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same agreement. A fully executed copy of this Agreement
shall be delivered to each party hereto.
5.7 LEGAL CONSTRUCTION. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not effect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. In addition, such invalid, illegal or unenforceable
provision shall be modified to the minimum extent necessary to permit it to be
valid, legal and enforceable. For all purposes hereof "day" shall mean calendar
day and shall include weekends and holidays; provided, however, that if any
notice period terminates on a weekend or holiday, the person who is required to
deliver the notice shall have until the next business day to complete the notice
requirement.
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5.8 AMENDMENT. No modification, amendment, addition to, or termination of
this Agreement, nor waiver of any of its provisions, shall be valid or
enforceable unless it is in writing and signed by all of the parties hereto.
5.9 PRIOR AGREEMENTS SUPERSEDED. This Agreement constitutes the sole and
only Agreement of the parties hereto and supersedes any prior understanding or
written or oral agreements, correspondence or communications between the parties
respecting the subject matter hereof.
5.10 ARBITRATION. EXCEPT FOR THE REMEDY PROVIDED UNDER SECTION 5.11 BELOW,
ANY CLAIM OR DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
RETENTION OF CONSULTANT BY THE COMPANY SHALL BE SUBMITTED TO FINAL AND BINDING
ARBITRATION IN AUSTIN, TEXAS PURSUANT TO THE EMPLOYMENT DISPUTE RESOLUTION RULES
OF THE AMERICAN ARBITRATION ASSOCIATION. THE PARTIES AGREE THAT ANY PARTY
REQUESTING ARBITRATION OF ANY DISPUTE UNDER THIS SECTION MUST GIVE FORMAL
WRITTEN NOTICE OF THE PARTY'S DEMAND FOR ARBITRATION ("ARBITRATION NOTICE")
WITHIN ONE HUNDRED TWENTY (120) DAYS AFTER SUCH DISPUTE FIRST ARISES AND FAILURE
TO TIMELY COMMUNICATE ARBITRATION NOTICE SHALL CONSTITUTE A WAIVER OF SUCH
DISPUTE. THE PARTIES FURTHER AGREE THAT EACH PARTY MAY BE REPRESENTED BY COUNSEL
IN ANY PROCEEDING UNDER THIS SECTION, AND THAT ALL EXPENSES AND FEES INCURRED IN
CONNECTION WITH ANY PROCEEDING UNDER THIS SECTION SHALL BE PAID BY THE
NON-PREVAILING PARTY (AS DETERMINED BY THE ARBITRATORS). BOTH PARTIES AGREE THAT
NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THE ARBITRATION OF ANY
DISPUTE OR CLAIM (i) ARISING UNDER ARTICLE IV OF THIS AGREEMENT; (ii) FOR
UNEMPLOYMENT COMPENSATION BENEFITS; OR (iii) FOR WORKERS' COMPENSATION BENEFITS.
BY THEIR EXECUTION OF THIS AGREEMENT, EACH PARTY TO THIS AGREEMENT CONSENTS, ON
BEHALF OF HERSELF OR ITSELF AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS,
TO SUCH BINDING ARBITRATION IN ACCORDANCE WITH THE TERMS OF THIS SECTION.
5.11 REMEDIES. Consultant agrees that the remedy at law for any breach of
any provision of Article IV will be inadequate and that the Company will be
entitled to seek injunctive and equitable relief for any such breach, in
addition to all other remedies permitted by law.
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IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement in ____________, ____________ as of the date first set forth above.
THE COMPANY:
CASTLE DENTAL CENTERS OF TEXAS, INC.
By: ________________________________
Name: Xxxx X. Xxxxxx, Xx.
Title: President
Address: ___________________________
____________________________________
____________________________________
ATTENTION: President
CONSULTANT:
____________________________________
Xxxxxx X. Xxxxxxx
Address: ___________________________
____________________________________
____________________________________
____________________________________
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