EXHIBIT 10.9
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (this "Amendment")is entered into
on August 3, 1997, by and between APPLE ORTHODONTIX, INC., a Delaware
corporation (the "Company"), and H. XXXXXX XXXXXX (the "Employee")
RECITALS:
WHEREAS, the Company and the Employee are parties to that certain
Employment Agreement dated March 20, 1997 (the "Agreement"); and
WHEREAS, the Company and the Employee desire to effect certain amendments
to the terms of the Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend the
Agreement as follows:
1. Section 2.A. of the Agreement is hereby amended as follows:
a. The Employee's title shall be "Vice President of Business
Development, General Counsel and Secretary."
b. The following sentence is hereby inserted in the Agreement between
the first and second sentences of Section 2.A.;
"In addition, as General Counsel of the Company the Employee shall
serve as the Company's Chief Legal Officer responsible for managing
the legal affairs of the Company, including without limitation the
direction and supervision of outside legal counsel engaged by the
Company."
2. Section 2.C. of the Agreement is hereby amended and restated in its
entirety as follows:
"Pursuant to the terms and conditions of a Consulting Agreement dated
March 1, 1997, between the Employee and the Company, the Employee
provided certain consulting services to the Company. The Employee and
the Company hereby agree to and ratify the above-referenced Consulting
Agreement, and further agree and acknowledge that this agreement has
been fully performed and is no longer in force or effect."
3. The second sentence of Section 4.B of the Agreement is hereby amended
and restated in its entirety as follows:
"The amount of each such commission shall be equal to the product of (x)
$8,900, (y) the Incremental EPS attributable to such Acquisition and (z)
a fraction, the numerator of which shall be the fully diluted number of
shares outstanding on the date of the closing of such Acquisition and
the denominator of which shall be 9,372,000; PROVIDED, HOWEVER, that in
the event the Company shall at any time effect any reclassification of
its common stock, any forward or reverse stock split, shall issue any
dividend or other distribution in respect of its common stock payable
other than in cash, or otherwise adjust or alter its equity
capitalization, the formula for the fraction set forth in the foregoing
subpart (z) shall be appropriately modified to reflect such
reclassification, split, dividend, distribution, adjustment or
alteration so as to ensure that the amount of the commission payable to
the Employee in respect of any given Acquisition shall not be changed as
a result of, or affected by, such reclassification, split, etc."
4. The first sentence of Section 4.C(iv)(a) of the Agreement is hereby
amended and restated in its entirety as follows:
"85,000 Options with an exercise price equal to $7.00 per share."
5. The second sentence of Section 4.C(iv)(b) of the Agreement is hereby
amended and restated in its entirety as follows:
"The exercise price for these options shall be equal to $7.00 per
share."
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment to the Agreement as of the day and year first above indicated.
APPLE ORTHODONTIX, INC.
/s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx,
Chief Executive Officer
EMPLOYEE
/s/ H. XXXXXX XXXXXX
H. Xxxxx Xxxxxx.
