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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
(X. Xxxxxx Xxxxxx)
This EMPLOYMENT AGREEMENT ("Agreement"), effective as of October 18,
2000, is by and between Monarch Dental Corporation, a Delaware corporation whose
principal executive offices are in Dallas, Texas ("Company"), and X. Xxxxxx
Tygart ("Executive").
RECITALS:
Company desires to engage Executive in the role of interim chief
executive officer of the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
ARTICLE I
EMPLOYMENT
1.1 Office and Duties. The Executive shall serve the Company as Interim
Chief Executive Officer and Chairman of the Board of Directors, with authority,
duties and responsibilities not less than the Executive has on the date of this
Agreement, with his actions at all times subject to the direction of the Board
of Directors of the Company.
1.2 Term. Subject to the provisions hereof, the term of this Agreement
shall be until the Company replaces the Executive (in his role as Interim Chief
Executive Officer) with a new Chief Executive Officer ("Term"). Notwithstanding
the foregoing, either party hereto may terminate Executive's employment with the
Company at any time and for any reason upon written notice to the other party.
1.3 Compensation.
(a) Base Salary. The Company shall pay the Executive as
compensation an aggregate salary ("Base Salary") of $450,000 per year
during the Term, or such greater amount as shall be approved by the
Compensation Committee of the Company's Board of Directors. The
Compensation Committee shall review the Executive's Base Salary at
least annually. The Base Salary for each year shall be paid by the
Company in accordance with the regular payroll practices of the
Company.
(b) Stock Options. In addition to options heretofore granted
to Executive, the Company hereby grants the Executive stock options to
purchase 50,000 shares of the Company's common stock at a per share
price of $.84375 in accordance with the terms and conditions of that
certain Stock Option Agreement dated as of October 18, 2000.
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ARTICLE 2
CONFIDENTIALITY
2.1 Confidentiality. Executive shall not, directly or indirectly, at
any time following termination of his employment with the Company, reveal,
divulge or make known to any person or entity, or use for Executive's personal
benefit (including without limitation for the purpose of soliciting business,
whether or not competitive with any business of the Company or any of its
subsidiaries), any information acquired during the course of employment
hereunder with regard to the financial. business or other affairs of the Company
or any of its subsidiaries (including without limitation any list or record of
persons or entities with which the Company or any of its subsidiaries has any
dealings), other than (1) material already in the public domain, (2) information
of a type not considered confidential by persons engaged in the same business or
a business similar to that conducted by the Company, or (3) material that
Executive is required to disclose under the following circumstances: (A) at the
express direction of any authorized governmental entity; (B) pursuant to a
subpoena or other court process; (C) as otherwise required by law or the rules,
regulations, or orders of any applicable regulatory body; or (D) as otherwise
necessary, in the opinion of counsel for Executive, to be disclosed by Executive
in connection with the prosecution of any legal action or proceeding initiated
by Executive against the Company or any of its subsidiaries or the defense of
any legal action or proceeding initiated against Executive in his capacity as an
employee or director of the Company of any of its subsidiaries. Executive shall,
at any time requested by the Company (either during or after his employment with
the Company), promptly deliver to the Company all memoranda, notes, reports,
lists and other documents (and all copies thereof) relating to the business of
the Company or any of its subsidiaries that he may then possess or have under
his control.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification Arrangement. The Company and the Executive
acknowledge that they have entered into that certain Indemnification Agreement
dated as of August 12, 1999, and they hereby reaffirm and readopt all the terms
and conditions of that Indemnification Agreement as if it was completely
restated herein.
ARTICLE 4
MISCELLANEOUS
4.1 Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or on behalf of the Company or any
affiliate of the Company against the Executive, the Executive's spouse, heirs,
executors or personal or legal representatives after the expiration of two years
from the date of accrual of such cause of action, and any claim or cause of
action of the Company or any affiliate shall be extinguished and deemed released
unless asserted by the timely filling of a legal action within such two-year
period; provided, however,
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that if any shorter period of limitations is otherwise applicable to any such
cause of action such shorter period shall govern.
4.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
4.3 Indulgences, Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege, nor shall any
waiver of any right, remedy, power, or privilege with respect to any occurrence
be construed as a waiver of such right, remedy, power or privilege with respect
to any other occurrence.
4.4 Notices. All notices, requests, demands and other communications
required or permitted under this Agreement and the transactions contemplated
herein shall be in writing and shall be deemed to have been duly given, made and
received when sent by telecopy (with a copy sent by mail) or when personally
delivered or one business day after it is sent by overnight service, addressed
as set forth below:
If to the Executive:
X. Xxxxxx Xxxxxx
00000 Xxxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
If to the Company:
Monarch Dental Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: President
With a copy to:
Xxxx X. XxXxxxxx, P.C.
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this subsection for the giving of notice. which shall be effective only upon
receipt.
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4.5 Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
4.6 Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained, which shall be deemed terminated effective immediately. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof. This Agreement may not be
modified or amended other than by an agreement in writing.
4.7 Headings; Index. The headings of paragraphs are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
4.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without giving effect to
principles of conflict of laws; provided, however, that questions regarding the
Company's ability to indemnify and advance expenses pursuant to Article, 3
(Indemnification) shall be governed by the Delaware General Corporation Law.
4.9 Survival. The covenants and agreements of the parties set forth in
Article 4 (Miscellaneous) are of a continuing nature and shall survive the
expiration, termination or cancellation of this Agreement, regardless of the
reason therefor.
4.10 Binding Effect, Etc. This Agreement shall be binding upon and
inure to the benefit of, and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business or assets of the Company, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business or assets of the
Company, by written agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place.
4.11 Consulting Agreement. This Agreement shall supersede and replace
in all respects that Consulting Agreement between Monarch Dental Corporation and
X. Xxxxxx Xxxxxx.
4.12 Notice, participation, and Accessability. Executive shall be given
notice of each potential Transaction that the Company may have under
consideration and shall be kept apprised
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of all aspects of such proposed Transaction as it proceeds. Executive shall be
provided a copy of each Transaction document relating to such proposed
Transaction and shall participate in negotiations and decisions relating
thereto, as requested.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officer thereunto duly authorized, and Executive has signed this
Agreement, all as of the day and year first above written.
MONARCH DENTAL CORPORATION
By.
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Xxxxx Xxxxxxxx, By Direction of the
Special Committee of the Board of
Directors
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X. Xxxxxx Xxxxxx
