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EXHIBIT 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated as of November 6, 1996,
between ORTHODONTIC CENTERS OF AMERICA, INC., a Delaware corporation ("OCA"),
and XX. XXXXXX X. XXXXXXX, an individual residing in the State of California
("Xxxxxxx").
WITNESSETH:
WHEREAS, OCA and its subsidiaries are engaged in providing management
services to orthodontic practices;
WHEREAS, Xxxxxxx is acquainted with orthodontists having qualifications
of interest to OCA; and
WHEREAS, OCA desires to avail itself of Xxxxxxx'x talents and
expertise, and to employ him as an officer of OCA and certain of its
subsidiaries, and Xxxxxxx is willing to accept such employment, all on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, and other mutual
promises and covenants hereinafter contained, OCA and Xxxxxxx do hereby agree,
for their mutual benefit, as follows:
1. Employment. Xxxxxxx shall be employed by OCA under this Agreement, effective
as of November 15, 1996, and Xxxxxxx accepts such employment upon the terms and
conditions hereinafter set forth. During the Term, Xxxxxxx shall be employed by
OCA under this Agreement to serve as President and Chief Executive Officer of
the New Division (as defined below), with such other positions and titles as may
be assigned to him from time to time by the Board of Directors of OCA.
2. New Division. (a) OCA will promptly form a wholly-owned subsidiary, which
shall be named "The Xxxxxxx Division, Inc.", to provide business management and
consulting services to non-advertising orthodontic practices ("New Division").
OCA will provide administrative and accounting services, information systems and
capital to New Division.
(b) The obligations of OCA hereunder are conditioned upon the execution
and consummation, prior to the expiration of eighteen months from the execution
of this agreement, of a business services agreement and related acquisition
agreement, between New Division or its affiliate and Xxxxxxx or his wholly-owned
professional entity, whereby New Division or its affiliate shall provide
business consulting or management services to Xxxxxxx'x orthodontic practice.
There shall be no management fee charged. OCA will notify New Division of this
date reasonably in advance of said date so as to ensure New Division's
compliance.
3. Term. The term of employment provided for in this Agreement shall commence on
November 15, 1996, and shall remain in full force and effect for a period of
three (3) years thereafter, unless earlier terminated in accordance herewith
(the "Term"); provided, however, that the Term shall be automatically extended
for an additional one (1) year period unless, no later than ninety (90) days
prior to the expiration of the initial three (3) year period, OCA shall provide
written notice to Xxxxxxx of its desire not to extend the Term.
4. Duties and Responsibilities of Xxxxxxx. (a) In carrying out his duties under
this Agreement, Xxxxxxx shall have such powers, responsibilities and duties
usually incident to a president and chief executive officer of a wholly-owned
subsidiary, together with such other powers, responsibilities and duties,
commensurate with Xxxxxxx'x position as President and Chief Executive Officer of
New Division, which may be assigned to him from time to time by the Chief
Executive Officer of OCA or the Board of Directors of New Division. Subject to
subsection (b) below, Xxxxxxx shall devote adequate working time and best
efforts in the best interest of and on behalf of OCA and New Division throughout
the term of this Agreement in good faith and in a manner appropriate for an
employee having Xxxxxxx'x position, duties, responsibilities and status.
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(b) During the Term, Xxxxxxx may continue to maintain his existing
orthodontic practice, to the extent that such practice does not unreasonably
interfere with Xxxxxxx'x duties and obligations hereunder.
(c) During the Term, Xxxxxxx shall:
(i) identify, screen and refer to OCA or New Division (in such
form as may be mutually determined by OCA and Xxxxxxx) qualified
candidates who are licensed to practice orthodontics and are interested
in affiliating with the New Division (each, a "Candidate");
(ii) train Candidates who affiliate with New Division in New
Division's operating techniques;
(iii) conduct seminars for prospective Candidates regarding
the New Division's operating techniques;
(iv) introduce, serve as a liaison for and coordinate meetings
between, other members of OCA and New Division management and each
Candidate;
(v) provide OCA with reports, in such form and at such times
as directed by OCA, on the status of the recruitment each Candidate;
(vi) assist OCA and New Division, as requested, in contractual
negotiations with each Candidate;
(vii) consult with OCA regarding international expansion of
New Division;
(viii) provide OCA and New Division with such other recruiting
services and advice as may be reasonably requested from time to time by
OCA or New Division during the Term; and
(ix) provide such services solely on behalf of New Division,
OCA and their affiliates.
5. Place of Performance. The headquarters for the performance of Xxxxxxx'x
duties hereunder shall be located in the site of Xxxxxxx'x choice, but from time
to time Xxxxxxx shall be required to travel to OCA's or New Division's other
locations in the proper conduct of his responsibilities under this Agreement.
Due to the international scope of OCA and New Division's business, Xxxxxxx will
spend a reasonable amount of time traveling, as his duties and the business of
OCA and New Division and their affiliates may require.
6. Compensation. OCA shall pay to Xxxxxxx, as sole compensation for the services
rendered by Xxxxxxx hereunder, the following:
(a) Base Salary. Xxxxxxx shall be paid a base salary ("Salary") at an
annual rate of the greater of (i) $150,000, or (ii) five percent (5%) of the net
operating income of New Division ("Net Operating Income") (which shall be New
Division's income from ordinary business operations less expenses, income taxes
and other charges, all as reflected on the books of New Division). Such Salary
shall be payable in accordance with the regular payroll practices of the
Company, as such may exist from time to time.
(b) Benefits. Subject to eligibility requirements, Xxxxxxx will be
entitled to participate during the Term in any employee retirement, benefit or
welfare plans provided by New Division to its employees and/or to its senior
executives, such as life insurance, health, retirement, savings and disability
plans which New Division has in effect or may adopt from time to time.
(c) Initial Bonus. Promptly following execution of this Agreement by
OCA and Xxxxxxx, OCA shall (i) deliver to Xxxxxxx shares of OCA's common stock,
$.01 par value per share ("Common Stock"), in an amount equal to Two Million
Dollars ($2,000,000), based upon a price per share of $11.50, and (ii) lend cash
to Xxxxxxx in an amount of up to Three Million Dollars ($3,000,000), as elected
by Xxxxxxx, with such loan to be evidenced by a
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promissory note from Xxxxxxx to OCA setting forth the terms of repayment
thereof. OCA will cooperate with Xxxxxxx to otherwise structure such stock
issuance and loan in a manner advantageous to Xxxxxxx from an income tax
perspective. Xxxxxxx elects to take a $700,000 loan with the remainder held in
an escrow account until January 1, 1997, or before if Xxxxxxx so decides.
(d) Incentive Compensation.
(i) In the event that Xxxxxxx shall recruit fifty (50) or more
Affiliated Recruits (as defined below) during the Term, OCA shall
deliver to Xxxxxxx shares of Common Stock in an amount equal to Eleven
Million Two Hundred Fifty Thousand Dollars ($11,250,000), based upon a
price per share of $11.50 (as adjusted to reflect any intervening stock
splits, stock dividends, reverse stock splits or other
recapitalizations).
(ii) Notwithstanding the foregoing, in the event that Xxxxxxx
shall recruit at least twenty-four (24), but less than fifty (50)
Affiliated Recruits, during the Term, OCA shall deliver to Xxxxxxx
shares of Common Stock, based upon a price per share of $11.50 (as
adjusted to reflect any intervening stock splits, stock dividends,
reverse stock splits or other recapitalizations), in an amount equal to
the product of: (i) Eleven Million Two Hundred Fifty Thousand Dollars
($11,250,000), times (ii) a fraction, the numerator of which is the
number of Affiliated Recruits so recruited during the Term, and the
denominator of which is fifty (50);
(iii) The incentive compensation set forth under this
subsection (the "Incentive Compensation") shall be paid only with
respect to Candidates who shall become an Affiliated Recruit. For
purposes of this Agreement, an "Affiliated Recruit" shall mean a
Candidate who has (a) entered into a long-term Consulting Agreement,
Business Services Agreement or similar agreement, in a form acceptable
to OCA and Xxxxxxx, with New Division or its affiliate whereby New
Division or such affiliate shall provide business consulting or
management services to the Candidate's orthodontic practice in exchange
for a fee; and (b) continued to be affiliated with New Division or its
affiliate for a period of at six (6) months.
(e) Net Operating Income of New Division shall be defined as cash
collections from the rendering of orthodontic services less all related expenses
of New Division including, but not limited to, amounts retained by
orthodontists, employee costs, rents, orthodontic supplies, lab fees, travel,
entertaining, telephone, postage, allocable corporate expenses, utilities,
depreciation and amortization and any and all other expenses related to the
operation of and capitalizing of New Division. There shall be no deduction for
interest expenses. The accounting for Net Operating Income shall be in
accordance with generally accepted accounting principles.
7. Facilities, Expenses and Vacation. (a) New Division will furnish Xxxxxxx
office space, equipment, supplies and such other facilities and personnel as OCA
deems necessary or appropriate for the performance of Xxxxxxx'x duties under
this Agreement.
(b) Xxxxxxx may incur reasonable expenses in promoting the business of
New Division, including expenses, to the extent used for business purposes, for
entertainment, travel and similar items. New Division will reimburse Xxxxxxx for
all such expenses, upon the presentation by him of an itemized account of such
expenditures in accordance with OCA's expense reimbursement procedures.
(c) During the Term, Xxxxxxx shall be entitled to adequate vacation
each full calendar year, in accordance with the vacation policies of OCA in
effect for its executive officers from time to time. Vacation must be taken by
Xxxxxxx during time frames which are appropriate for the position of President
and Chief Executive Officer. Vacation days and holidays during any year that are
not used by Xxxxxxx during such year may not be used in any subsequent year.
8. Non-Competition and Confidentiality. (a) Xxxxxxx shall hold the Confidential
Information (as defined below) in trust and strictest confidence, and shall not
at any time or in any manner, either directly or indirectly, disclose, divulge,
distribute, disseminate or communicate to any third party any of such
Confidential Information or
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any physical embodiment thereof. Xxxxxxx acknowledges that disclosure of any
Confidential Information to any unauthorized party would gravely affect the
effective and successful conduct of OCA's and New Division's business and
goodwill. Xxxxxxx shall not use, reproduce or exploit the Confidential
Information at any time or in any manner, either directly or indirectly, other
than in connection with the services to be provided hereunder. Xxxxxxx
understands and agrees that all Confidential Information and all physical
embodiments thereof are and will remain the sole and exclusive property of OCA
and Xxxxxxx'x access to and use of such Confidential Information shall in no way
be construed as a license or transfer of such Confidential Information to
Xxxxxxx. Xxxxxxx shall keep and preserve all records, files, lists, manuals,
blank forms, materials, supplies and literature furnished to Xxxxxxx by OCA or
New Division and return such property, including all copies of such property
which Xxxxxxx may have made or over which Xxxxxxx has custody, control or
possession, to OCA upon request or upon expiration of the Term.
(b) During the Term and for a period of two (2) years thereafter,
Xxxxxxx shall not, directly or indirectly, for himself or on behalf of any other
corporation, person, firm, partnership, association or any other entity, in any
capacity, own, mortgage, operate, control, participate in the management or
control of, be employed by, provide services to, or maintain or continue any
interest whatsoever in, any enterprise (other than OCA, New Division or its
affiliates) engaged in the business of providing consulting, business or
management services to orthodontic practices or otherwise competitive with the
orthodontic practice management services of OCA, New Division or any affiliates
thereof, and Xxxxxxx shall not solicit any customer or client of OCA or New
Division or solicit the services of individuals in OCA's or New Division's
employ. Xxxxxxx will be allowed to continue his in-office management courses and
seminars around the world that he is presently providing.
(c) Xxxxxxx acknowledges that all of Employee Inventions (as defined
below) are works made for hire and will belong exclusively to OCA, including any
copyrights, patents or other intellectual property rights pertaining thereto. If
it is determined that any such works are not works made for hire, Xxxxxxx hereby
assigns to OCA all of Xxxxxxx'x right, title and interest, including all rights
of copyright, patent and other intellectual property rights, to or in such
Employee Inventions. Xxxxxxx covenants that he will promptly (i) disclose to OCA
in writing any Employee Invention; (ii) assign to OCA or to a party designated
by OCA, at OCA's request and without additional compensation, all of Xxxxxxx'x
right to the Employee Invention for the United States and all foreign
jurisdictions; and (iii) execute and deliver to OCA such applications,
assignments, and other documents as OCA may request in order to apply for and
obtain patents or other registrations with respect to any Employee Invention in
the United States and any foreign jurisdictions.
(d) The parties have entered into this Section of this Agreement in
good faith and for the reasons set forth in the recitals hereto and assume that
this Agreement is legally binding. If for any reason, this Section is not
binding because of its geographical scope or because of its term, then the
parties agreed that this Agreement shall be deemed effective to the widest
geographical area and/or the longest period of time as may be legally
enforceable. Xxxxxxx acknowledges that the rights and privileges granted to OCA
in this Section are of special and unique character, which gives them a peculiar
value, the loss of which may not be reasonably or adequately compensated for by
damages in an action of law, and that a breach thereof by Xxxxxxx of this
Section will cause OCA great and irreparable injury and damage. Accordingly,
Xxxxxxx hereby agrees that OCA shall be entitled to remedies of injunction,
specific performance or other equitable relief to prevent a breach of this
Section of this Agreement by Xxxxxxx. This provision shall not be construed as a
waiver of any other rights or remedies OCA Company may have for damages.
(e) For purposes of this Agreement, "Confidential Information" shall
mean information relating to OCA that existed prior to the execution this
agreement, was developed by OCA and was communicated to Xxxxxxx, New Division or
their affiliates that derives economic value from not being generally known to
or readily accessible to other persons and is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. Assuming the
foregoing criteria are met, Confidential Information shall include, but not be
limited to, (i) OCA's, New Division's or their affiliates' manner of operation,
plans, processes, strategy, operating techniques or programs; (ii) information
about OCA's, New Division's or their affiliates' finances and financial status;
(iii) information about the finances and financial status of clients or other
entities affiliated with OCA or New Division; (iv) and information supplied to
OCA, New Division or their affiliates by other parties which OCA, New Division
or their affiliates are obligated to keep confidential. Any information that was
developed by Xxxxxxx solely prior to the execution of this agreement shall not
be deemed Confidential Information for purposes of this agreement. Any
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information developed by Xxxxxxx during the term of this agreement that is not
utilized by the New Division shall not be deemed Confidential Information for
purposes of this agreement.
(f) For purposes of this Agreement, "Employee Invention" shall mean any
idea, invention, technique, modification, process, improvement, industrial
design and any work of authorship created, conceived or developed by Xxxxxxx,
either solely or in conjunction with others, during the Term, or a period that
includes a portion of the Term, that relates in any way to, or is useful in any
manner in, the business then being conducted or proposed to be conducted by OCA
and New Division, and any such item created by Xxxxxxx in conjunction with other
members of OCA following termination of Xxxxxxx'x employment with OCA or New
Division, that is based upon or uses Confidential Information. Employee
Invention shall not include any invention, manuals or other processes which were
developed by Xxxxxxx prior to the date of execution of this agreement or which
were developed solely by Xxxxxxx at Xxxxxxx'x cost during the term of this
agreement.
9. Termination. (a) Termination. The Term and any and all rights of Xxxxxxx
under this Agreement or otherwise as an employee of OCA and New Division, will
terminate (except as otherwise provided in this Section):
(i) upon the death of Xxxxxxx;
(ii) upon the Disability (as defined below) of Xxxxxxx
immediately upon notice from OCA to Xxxxxxx;
(iii) For Cause (as defined below), immediately upon notice
from OCA to Xxxxxxx, or at such later time as such notice may specify;
or
(iv) For Good Reason (as defined below) upon not less than
thirty days' prior notice from Xxxxxxx to OCA.
(b) Definition of Disability. For purposes of this Section, Xxxxxxx
shall be deemed to have a "Disability" if, for physical or mental reasons, he is
unable to perform his duties under this Agreement for one hundred twenty (120)
substantially consecutive days, or one hundred eighty (180) days during any
twelve (12) month period, as determined in accordance with this subsection. The
Disability of Xxxxxxx will be determined by a medical doctor selected by written
agreement of OCA and Xxxxxxx upon the request of either party by notice to the
other. If OCA and Xxxxxxx cannot agree on the selection of a medical doctor,
each of them will select a medical doctor and the two medical doctors will
select a third medical doctor who will determine whether Xxxxxxx has a
disability. The determination of the medical doctor selected under this
subsection will be binding on both parties. Xxxxxxx must submit to a reasonable
number of examinations by the medical doctor making the determination of
Disability under this subsection, and Xxxxxxx hereby authorizes the disclosure
and release to OCA of such determination and all supporting medical records. If
Xxxxxxx is not legally competent, his legal guardian or duly authorized
attorney-in-fact will act in his stead, under this subsection, for the purposes
of submitting Xxxxxxx to the examinations, and providing the authorization of
disclosure, required under this subsection.
(c) Definition of For Cause. For purposes of this Section, the "For
Cause" means: (i) Xxxxxxx'x breach of this Agreement; (ii) Xxxxxxx'x failure to
adhere to any OCA policy if Xxxxxxx has been given a reasonable opportunity to
comply with such policy or cure his failure to comply (which reasonable
opportunity must be granted during the ten-day period preceding termination of
this Agreement); (iii) the appropriation (or attempted appropriation) of a
business opportunity of OCA or New Division, including attempting to secure or
securing any personal profit in connection with any transaction entered into on
behalf of OCA or New Division; (iv) the misappropriation (or attempted
misappropriation) of any of OCA's or New Division funds or property; or (v) the
conviction or indictment (or its procedural equivalent) of, or the entering of a
guilty plea or plea of no contest by, Xxxxxxx with respect to a felony, the
equivalent thereof, or any other crime with respect to which imprisonment is a
possible punishment.
(d) Definition of For Good Reason. For purposes of this Section, "For
Good Reason" means any of the following: (i) OCA's material breach of this
Agreement; or (ii) assignment of Xxxxxxx by OCA, without
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Xxxxxxx'x consent, to a position, responsibilities or duties of a materially
lesser status or degree of responsibility than the position, responsibilities or
duties provided herein.
10. Termination Pay. (a) General. Effective upon the termination of this
Agreement, OCA will be obligated to pay Xxxxxxx (or, in the event of his death,
his estate) only such compensation as is provided in this Section.
Notwithstanding the preceding sentence, OCA will have no duty, in any
circumstances, to attempt to open an estate on behalf of Xxxxxxx, to determine
whether any person or entity purporting to act as Xxxxxxx'x personal
representative is duly authorized to act in that capacity, or to locate or
attempt to locate any beneficiary or personal representative.
(b) Termination by Xxxxxxx for Good Reason. If Xxxxxxx terminates this
Agreement for Good Reason, OCA will pay Xxxxxxx: (i) his Salary for the
remainder, if any, of the calendar month in which such termination is effective,
and (ii) that portion of Xxxxxxx'x Incentive Compensation, if any, prorated
through the date of termination.
(c) Termination by OCA for Cause. If OCA terminates this Agreement For
Cause, Xxxxxxx will be entitled to receive his Salary through the date such
termination is effective, but will not be entitled to any Incentive
Compensation.
(d) Termination upon Disability. If this Agreement is terminated by
either party as a result of Xxxxxxx'x Disability, as determined above, OCA will
pay Xxxxxxx his Salary through the remainder of the calendar month during which
such termination is effective and pro-rated incentive.
(e) Termination upon Death. If this Agreement is terminated because of
Xxxxxxx'x death, Xxxxxxx will be entitled to receive his Salary through the end
of the calendar month in which his death occurs, and that part of Xxxxxxx'x
Incentive Compensation, if any, prorated through the end of the calendar month
during which his death occurs.
11. In-House and Other Recruiting. This Agreement shall not restrict in any
manner the right or ability of OCA or New Division to contact or recruit or to
engage other person or entities to contact or recruit, orthodontists to
affiliate with OCA, New Division or their affiliates. For purposes of the
incentive, any non-marketing practice shall be placed into the New Division and
be counted towards the incentive.
12. Miscellaneous. (a) Attorneys' Fees. If either party seeks redress through
litigation, all attorneys' fees incurred by the prevailing party will be paid by
the non-prevailing party.
(b) Assignment. Neither this Agreement nor any rights, powers or duties
hereunder may be assigned by either party without the expressed written consent
of the other party, and any such unauthorized assignment shall be void.
(c) Amendment. No amendment or variation of the terms of this Agreement
shall be valid unless in writing and signed by both parties.
(d) Choice of Law and Venue. Xxxxxxx hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement, in either the courts of the State
of Florida or the United States of America located in the State of Florida; and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum. This Agreement shall be
construed in accordance with and governed by the laws of the State of Florida,
without regard to its concepts of choice of law.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document.
(f) Captions. The captions used in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of this
Agreement.
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(g) Remedies. OCA shall be entitled to equitable relief, including
injunction and specific performance, in the event of any breach of the
provisions of this Agreement, in addition to all other remedies available to OCA
at law or in equity. In no event shall the failure or delay by OCA in exercising
any right, power or privilege hereunder will operate as a waiver thereof, nor
will any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege hereunder.
(h) Notices. All notices, consents and other communications under this
Agreement must be in writing and will be deemed to have been duly given when:
(i) delivered by hand; (ii) send by facsimile (with written confirmation of
receipt); (iii) when received by the addressee, if delivered by certified or
registered mail, return receipt requested, or (iv) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case with posted or other charges prepaid to the
appropriate addresses and facsimile numbers set forth below (or to such other
addresses and facsimile numbers as a party may designate by notice to the other
parties): (i) if to Xxxxxxx, to Xx. Xxxxxx X. Xxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxxxxx 00000, Facsimile No. (000) 000-0000, and (ii) if to
OCA, to Orthodontic Centers of America, Inc., 0000 X. Xxxxxxxx Xxxxxxxxx, xxxxx
000, Xxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxxxxxxx, Xx.,
Facsimile No.: (000) 000-0000, with a copy to: Xxxxxxxx X. Xxxx, Esq., Xxxxxx
Xxxxxxx Xxxxxx & Xxxxx, A Professional Limited Liability Company, 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, Facsimile No.: (000) 000-0000.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
ORTHODONTIC CENTERS OF
AMERICA, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
/s/ Xxxxxx X. Xxxxxxx, D.D.S.
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Xx. Xxxxxx X. Xxxxxxx
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