Exhibit 10.2
DENTAL COOPERATIVE, INC.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), dated the 1st day of July, 2003, by
and among DENTAL COOPERATIVE, INC. ("Company"), a Utah corporation with
principal offices at 0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, XX
00000, and XXXXXX X. XXXXXXX ("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:
13. 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otherwise, are hereby rescinded and made null, void, and of no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.
14. 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.
15. 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.
16. 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.
17. Compensation.
(a) Base Compensation. As compensation for services
hereunder, the Company will pay to the Employee
annual compensation of One Hundred Eighty Thousand
dollars ($180,000) 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 Compensation. The Company and Employee have
by agreement deferred the payment of substantial
compensation owed to Employee during the period April
1998 to the date of this Agreement. The parties
hereby acknowledge such amounts as due and payable to
Employee. Employee and the Company may agree to defer
some or all compensation due under this Agreement 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.
18. Title and Job Responsibilities; Directors and Officers
Insurance Coverage The Employee shall be employed as the
PRESIDENT AND CHIEF OPERATING 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 Chief Executive Officer 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
(b) Upon default by the Employee, the Company shall have
the following remedies:
4. 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;
5. All compensation to the Employee shall be
immediately terminated and any right of
Employee to future compensation under this
Agreement shall be extinguished;
6. All stock options, and warrants issued to or
owing the Employee shal1 be immediately
forfeited and returned to the Company.
24. 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 Xxxxxx X. Xxxxxxx
0000 X Xxx 00
Xxxxxxxxx, Xxxx 00000
Company Dental Cooperative, 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.
(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 COOPERATIVE, INC. EMPLOYEE:
By:
-------------------------------------- --------------------------------
Its: Chief Executive Officer Xxxxxx X. Xxxxxxx
