Exhibit 10.4
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment"), is made and entered
into as of the 12th day of February, 1999, by and between First Commonwealth,
Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxxx, an
individual resident of the State of Illinois ("Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and Employee are parties to an Employment Agreement
dated July 25, 1994 (the "Employment Agreement"); and
WHEREAS, the Company and Employee desire to amend such Employment
Agreement on the terms and subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained in this Amendment, the receipt and sufficiency of which is
acknowledged by the parties, the parties agree as follows:
1. Paragraph 4 of Section 2 of the Agreement is hereby amended to read
in its entirety as follows:
"4. Termination Without Cause. This Agreement may be terminated by the
Company without "good cause," provided that, in such event, the Company shall
continue to pay the Employee his or her then current base salary for a period
of twelve (12) months following such termination as if the Employee were
continuing his/her duties and shall continue employee benefits then in
existence for a period of six (6) months following such termination."
2. As of the date hereof, the amount of the Base Salary in Paragraph 1
of Section 3 is hereby amended to read "$118,499.94."
3. The first sentence of Paragraph 5 of Section 2 is hereby amended and
restated in its entirety as follows:
"Employee may terminate this Agreement upon sixty (60) days written
notice to Company."
4. Paragraph 3 of Section 5 is hereby amended and restated in its
entirety to read as follows:
"3. Restrictive covenants. Employee recognizes that the Company's
entering into this Agreement is induced primarily because of the covenants and
assurances made by
the Employee, that Employee's covenant not to compete is necessary to insure
the continuation of the business of the Company and its Affiliates, and that
irreparable harm and damage will be done to the Company and its Affiliates in
the event that Employee competes with the Company or its Affiliates within the
geographic area and the time periods described below. Therefore, Employee
agrees as follows:
a. During the term of this Agreement, Employee will not directly or
indirectly own, manage, operate, control, participate in the management or
control of, be employed by, lend his or her name to, or maintain or continue
any financial interest whatsoever in any business or enterprise having to do
with the provision, distribution, marketing, promotion, or advertising of any
services or products similar to those offered by the Company within the United
States or its territories and possessions.
b. For a period of twelve (12) months after the termination of this
Agreement, Employee will not directly or indirectly own, manage, operate,
control, participate in the management or control of, be employed by, lend his
or her name to, or maintain or continue any financial interest whatsoever in
any business or enterprise of the type and character engaged in and
competitive with that of the Company or any of its Affiliates within any
jurisdiction or marketing area in which the Company or any Affiliate is doing
business or is qualified to do business.
c. For a period of one year after the termination of this Agreement, for
any reason, Employee shall not persuade or attempt to persuade any employee of
the Company or its Affiliates, to leave the Company's or such Affiliate's
employ, or to become employed by any person, firm or corporation other than
the Company or such Affiliate.
d. For a period of one year after the termination of this Agreement,
Employee shall not persuade or attempt to persuade any client or participating
dentist providers to hire or affiliate with another company.
e. For a period of one year after the termination of this Agreement,
Employee shall not solicit for himself or herself or any person, firm or
corporation other than the Company or any of its Affiliates the business of
any company or dental provider which is a customer, client of, or party to a
contract with the Company or any of its Affiliates.
f. These restrictions against competition are considered by the parties
to be reasonable for the purposes of protecting the business of the Company.
It is the desire and intent of the parties to this Agreement that the
provisions of this Section 5.3 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. If any particular provision or portion of this
Section 5.3 shall be adjudicated to be invalid or unenforceable, this Section
shall be deemed amended to extend only over the maximum period of time, range
of activities, or geographic area as to which it may be enforceable, such
amendment to apply only with respect to the operation of such Section in the
particular jurisdiction in which such adjudication is made.
4. Remedies. The parties recognize that the performance of the
obligations under Sections 5.1, 5.2 and 5.3 by the Employee are special,
unique and extraordinary in character, and that in the event of the breach by
the Employee of the terms and conditions of Section 5.1, 5.2 and/or 5.3 to be
performed, the Company shall be entitled, if it so elects, to institute and
prosecute proceedings in any court of competent jurisdiction, either in law or
in equity, to obtain damages for any breach of Section 5.1, 5.2 and/or 5.3 to
enforce the specific performance thereof by such Employee or to enjoin such
Employee from performing services for such other person, firm or corporation."
4. Except as specifically provided in this Amendment to the Agreement,
this Amendment shall not by implication or otherwise alter, modify, amend or in
any such way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Agreement, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. In the event of any
conflict between the terms of this Amendment and the Agreement, the terms of
this Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Agreement to be duly executed, all as of the date and year first above written.
FIRST COMMONWEALTH, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
EMPLOYEE
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
