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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
Employment Agreement, dated this 1st day of April, 1997, between
CompDent Corporation ("CompDent"), and Xxxxxx Xxxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, CompDent seeks the services of Executive to undertake certain
tasks and/or responsibilities associated with its recent initiative in the
dental practice management area and Executive is desirous of providing same to
CompDent on the conditions and for the consideration as set forth below:
1. Employment. Subject to the provisions of Section 6, CompDent hereby
employs the Executive and the Executive accepts such employment upon the terms
and conditions hereinafter set forth.
2. Term of Employment. The term of the Executive's employment pursuant
to this Agreement shall be effective as of the 1st day of January, 1997, and
shall remain in effect for a period of five years from said date or until
terminated in accordance with Section 6. The period during which the Executive
serves as an employee of CompDent in accordance with and subject to the
provisions of this Agreement is referred to in this Agreement as the "Term of
Employment." Without the consent of the Executive, the Company may not transfer
the Executive during the Term of Employment to a principal place of employment
more than thirty miles from the city limits of the principal city where
Executive is located on the date of this Agreement ("Location").
3. Duties. During the Term of Employment, the Executive shall report
directly to the Chief Executive Officer of CompDent, and (a) shall serve as
President of Dental Health Management, Inc., a wholly-owned subsidiary of
CompDent ("DHM"), (b) shall perform such duties and responsibilities as may be
reasonably determined by the Chairman of the Board of Directors of CompDent
consistent with the Executive's position as an executive officer of DHM,
provided that such duties and responsibilities shall be within the general area
of the Executive's experience and skills, (c) upon the request of the Chairman
of the Board of Directors of CompDent, shall serve as an officer and/or director
of CompDent and any of its subsidiaries; and (d) shall render all services
incident to the foregoing. The Executive agrees to use his best efforts in, and
shall devote his full working time, attention, skill and energies to, the
advancement of the interests of CompDent and its subsidiaries and Affiliates and
the performance of his duties and responsibilities hereunder.
4. Compensation.
(a) During the Term of Employment, CompDent shall pay the Executive
a salary (the "Base Salary") at an annual rate as shall be determined from time
to time by the Board of directors of CompDent, provided, however, that such rate
per annum shall not be less than $200,000.00. Such salary shall be subject to
withholding under applicable law and shall be payable in periodic installments
in accordance with CompDent's usual practice for its senior executives, as in
effect from time to time.
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(b) Upon the completion of each calendar year, the Executive shall
be eligible to receive a bonus ("Bonus") provided he is employed by CompDent at
the end of such calendar year to the extent payable pursuant to a bonus plan
then in effect from time to time for executives of CompDent of equivalent
position and title.
5. Benefits.
(a) During the Term of Employment, the Executive shall be entitled
to participate in any and all bonus plans, medical, pension and dental insurance
plans and disability income plans as in effect from time to time for senior
executives of CompDent. Such participation shall be subject to (i) the terms of
the applicable plan documents, (ii) generally applicable policies of CompDent,
and (iii) the discretion of the Board of Directors of CompDent or administrative
or other committee provided for in or contemplated by such plan.
(b) CompDent shall promptly reimburse the Executive for all
reasonable business expenses incurred by the Executive during the Term of
Employment in accordance with CompDent's practices for senior executives of
CompDent, as in effect from time to time.
(c) During the Term of Employment, the Executive shall receive paid
vacation annually in accordance with CompDent's practices for senior executives
of CompDent, as in effect from time to time.
(d) During the Term of Employment, the Executive shall receive a car
allowance of at least $800 per month.
(e) Except as contemplated by Sections 5 (b), 5 (c), and 5 (d),
compliance with provisions of this Section 5 shall in no way create or be deemed
to create any obligation, express or implied, on the part of CompDent or any
parent, subsidiary or affiliate of CompDent with respect to the continuation of
any benefit or other plan or arrangement maintained as of or prior to the date
hereof or the creation and maintenance of any particular benefit or other plan
or arrangement at any time after the date hereof. Notwithstanding the foregoing,
the benefits provided to the Executive during the Term of Employment will not be
materially less favorable in the aggregate than the benefits in effect for the
executives of CompDent as of January 1, 1997.
6. Termination of Employment of the Executive. This Agreement and the
Executive's employment with CompDent and its subsidiaries may be terminated as
follows:
(a) At any time by the mutual consent of the Executive and CompDent.
(b) At any time for "cause" by CompDent upon written notice to the
Executive. For purposes of this agreement, a termination shall be for "cause"
if:
(i) the Executive shall commit an act of fraud, embezzlement,
misappropriation or breach of fiduciary duty against CompDent or any of its
subsidiaries or
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affiliates or shall be convicted by a court of competent jurisdiction or shall
plead guilty or nolo contendere to any felony or crime involving moral
turpitude;
(ii) the Executive shall commit a material breach of any of the
covenants, terms or provisions of Section 8 hereof;
(iii) the Executive shall commit a material breach of any of the
covenants, terms or provisions hereof (other than pursuant to Section 8 hereof)
which breach has not been remedied within thirty (30) days after delivery to the
Executive by CompDent of written notice thereof; or
(iv) the Executive shall have disobeyed reasonable written
instructions from CompDent's Chairman consistent with the terms of this
Agreement and Executive's duties, title, and general area of expertise, or shall
have substantially failed to perform the Executive's duties hereunder, after
written notice and under circumstances effectively constituting a resignation of
the Executive's position with CompDent.
Upon termination for cause as provided in this Section 6 (b):
(a) all obligations of CompDent under this Agreement shall thereupon
immediately terminate other than any obligations with respect to earned but
unpaid Base Salary; provided, however, that the Executive shall not be entitled
to receive any bonus from CompDent with respect to the year during which such
termination occurred, and
(b) CompDent shall have any and all rights and remedies under this
Agreement and applicable law.
(c) Upon the earlier death or permanent disability (as defined below)
of Executive continuing for a period of ninety (90) days. Upon any such
termination of the Executive's employment, all obligations of CompDent under
this Agreement shall thereupon immediately terminate other than any obligations
with respect to (i) earned but unpaid salary through the date of termination,
(ii) bonus payments with respect to the calendar year which such termination
occurred on the basis of and to the extent contemplated in any bonus plan then
in effect with respect to executive officers of CompDent, pro-rated on the basis
of number of days of the Executive's actual employment hereunder during such
calendar year through such termination, and (iii) in the case of permanent
disability continuation of health insurance benefits until the first anniversary
of the date of termination to the extent permitted under Executive's group
health insurance policy. As used herein, the term "permanent disability" or
"permanently disabled" is hereby defined as the inability of the Executive, by
reason of injury, illness or other similar cause, to perform a major part of his
duties and responsibilities in connection with the conduct of the business and
affairs of CompDent.
(d) At any time by the Executive upon sixty (60) days' prior written
notice to CompDent. Upon termination by the Executive as provided in this
Section 6 (d), all obligations of CompDent under this Agreement shall thereupon
immediately terminate other than any obligations with respect to earned but
unpaid Base Salary, it being understood that the Executive shall not be entitled
to receive any bonus from CompDent with respect to the year during which
such termination occurred.
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(e) At any time during the Term of Employment without "cause" (as
defined in Section 6 (b)) by CompDent upon written notice to the Executive.
(f) The Executive shall have the right to terminate his employment
hereunder in the event of a material default by CompDent in the performance of
its obligations hereunder after the Executive has given written notice to
CompDent specifying such default by CompDent and giving CompDent a reasonable
time, not less than 30 days, to conform its performance to its obligations
hereunder.
(g) Upon termination of the Executive's employment with CompDent at any
time, under this Agreement or otherwise, regardless of the circumstances
thereof, the Executive's obligations under Section 8 hereof shall survive such
termination.
7. Severance Payments.
In the event the employment of the Executive is terminated pursuant to
(A) Section 6 (e), (B) by Executive pursuant to 6 (f), or (C) following a
material change in the duties, title, compensation, and/or Location of the
Executive, within one year following any "Change of Control" (as hereinafter
defined) involving CompDent or any entity controlling CompDent ("Parent"), then
CompDent shall in lieu of the payments and arrangements specified above
(including without limitation participation in any bonus plan), (i) pay the
Executive severance pay in an amount equal to two times the sum of Executive's
Base Salary on the termination date ("Severance Pay"), and (ii) continue the
Executive's health (i.e., medical and dental) insurance as provided in Section 5
(a) for one year following the date of such termination to the extent permitted
under applicable law and CompDent's group health insurance policy. Such
Severance Pay shall be payable over 24 months in equal monthly installments and
shall be subject to withholding to the extent required under applicable law. In
the event that Executive's participation in any medical and/or dental plan or
program is barred, CompDent shall arrange to provide Executive with benefits
substantially similar to those which Executive would otherwise had been entitled
to receive under such plans and programs from which his continued participation
is barred. The Severance Pay and continuation of health benefits contemplated by
this Section 7 are agreed by the parties hereto to be in full satisfaction and
compromise of any claim arising out of any such termination of the Executive's
employment pursuant to Section 6 (e) or 6 (f) or the event described above.
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise.
For purposes of this Agreement, a "Change in Control" shall mean any of
the following events occurring after the date hereof: (A) the direct or indirect
beneficial ownership (within the meaning of Section 13 (d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Regulation 13D-G
thereunder) of a majority of the outstanding Common Stock of CompDent is
acquired or becomes held by any person or group of persons (within the meaning
of Section 13 (d) (3) of the Exchange Act) (a "Group"), (B) the sale, mortgage,
lease or other
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transfer to any person or Group in one or more transactions not in the ordinary
course of business of all or substantially all of the assets on a consolidated
basis of Parent, CompDent and CompDent' subsidiaries (taken as a whole), (C) a
change of stock ownership of CompDent of a nature that would be required to be
reported in response to Item 6 (e) of Schedule 14A promulgated under the
Securities Exchange Act of 1994, as amended (the "Exchange Act") and any
successor Item of a similar nature; or (D) the acquisition of beneficial
ownership, directly or indirectly, by any person (as such term is used in
Sections 13 (d) and 14 (d) (a) of the Exchange Act) of securities of CompDent
representing 25% or more of the combined voting power of CompDent's then
outstanding securities; or (E) a change during any period of two consecutive
years of a majority of the members of the Board of Directors of CompDent for any
reason.
8. Non-Competition.
(a) During any period in which the Executive serves as an employee of
CompDent and for a period of two (2) years after the date of termination of the
Executive's employment at any time, regardless of the circumstances thereof, the
Executive shall not, without the express written consent of CompDent, directly
or indirectly, engage, participate, invest in, be employed by or assist, whether
as owner, part-owner, shareholder, partner, director, officer, trustee,
employee, agent or consultant, or in any other capacity, any Person other than
CompDent and its Affiliates whose activities, products, and/or services are in
the Designated Industry. Without limiting the foregoing, the foregoing covenant
shall prohibit the Executive during the period set forth above from (i) hiring
or attempting to hire for or on behalf of any Person in the Designated Industry
any officer, Employee, or Affiliated Person of CompDent or any of its
Affiliates, (ii) encouraging for or on behalf of any such Person in the
Designated Industry any officer, Employee, or Affiliated Person to terminate his
or her relationship or employment with CompDent or any of its Affiliates, (iii)
soliciting for or on behalf of any such Person in the Designated Industry any
customer of CompDent or any of its Affiliates and (iv) diverting to any such
Person in the Designated Industry any customer of CompDent or any of its
Affiliates; provided, however, that nothing herein shall be construed as
preventing the Executive from making passive investments in a Person in the
Designated Industry if the securities of such Person are publicly traded and
such investment constitutes less than five percent of the outstanding shares of
capital stock or comparable equity interests of such Person. As of the date of
this Agreement, the Executive is not performing any other duties for, and is not
a party to any similar agreement with, any Person competing with CompDent or any
of its affiliates.
(b) In the course of performing services hereunder and otherwise, the
Executive has had, and it is anticipated that the Executive will from time to
time have, access to confidential records, data, customer lists, trade secrets
and similar confidential information owned or used in the course of business by
CompDent and its subsidiaries and affiliates (the "Confidential Information").
The Executive agrees (i) to hold the Confidential Information in strict
confidence, (ii) not to disclose the Confidential Information to any Person
(other than in the regular business of CompDent), and (iii) not to use, directly
or indirectly, any of the Confidential Information for any competitive or
commercial purpose; provided, however, that the limitations set forth above
shall not apply to any Confidential Information which (A) is then generally
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known to the public; (B) became or becomes generally known to the public through
no fault of the Executive; or (C) is disclosed in accordance with an order of a
court of competent jurisdiction or applicable law. Upon the termination of the
Executive's employment with CompDent, all data, memoranda, customer lists,
notes, programs and other papers and items, and reproductions thereof relating
to the foregoing matters in the Executive's possession or control, shall be
returned to CompDent and remain in its possession.
(c) For purposes of this Section 8, the following terms shall have the
meanings specified unless defined otherwise herein:
(i) "Affiliates" shall mean any subsidiary company of CompDent or
American Prepaid Professional Services, Inc. (subsidiary company to CompDent),
whether wholly or partially owned, including but not by way of limitation,
Dental Health Management, Inc.
(ii) "Affiliated Person" shall mean any individual, professional,
or otherwise, who is providing, or has provided, during a one-year period
immediately prior to the date of any hiring or solicitation for hire of such
individual, services to any dental office or facility under management by Dental
Health Management, Inc.;
(iii) "Employee" shall mean any individual employed currently or
during a one-year period immediately prior to the date of any hiring or
solicitation for hire of such individual by CompDent or its Affiliates;
(iv) "Designated Industry" shall mean (A) the business of providing
dental health care services and any and all activities relating thereto,
including, without limitation, the provision and administration of discount
fee-for-service dental plans, prepaid dental plans, PPO dental plans and
indemnity dental plans and operation and/or ownership of dental health care
practices, (B) the business of providing dental practice management, and (C) any
other business conducted by CompDent or its Affiliates;
(v) "Person" shall mean an individual, a corporation, an
association, a partnership, an estate, a trust, and any other entity or
organization.
9. Specific Performance: Severability. It is specifically understood
and agreed that any breach of the provisions of this Agreement including,
without limitation, Section 8 hereof by the Executive is likely to result in
irreparable injury to CompDent and its subsidiaries and affiliates, that the
remedy at law alone will be inadequate remedy for such breach and that, in
addition to any other remedy it may have, CompDent shall be entitled to enforce
the specific performance of this Agreement by the Executive and to seek both
temporary and permanent injunctive relief (to the extent permitted by law),
without the necessity of proving actual damages. In case any of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, any such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this unenforceable
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provision had been limited or modified (consistent with its general intent) to
the extent necessary to make it valid, legal and enforceable, or if it shall not
be possible to so limit or modify such invalid, illegal or unenforceable
provision or part of a provision, this Agreement shall be construed as if such
invalid, illegal or unenforceable provision or part of a provision had never
been contained in this Agreement.
10. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or mailed by certified or registered mail (return receipt
requested) as follows:
To CompDent:
000 Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
To the Executive:
000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
or to such other address of which any party may notify the other parties as
provided above. Notices shall be effective as of the date of such delivery or
mailing.
11. Miscellaneous. This Agreement shall be governed by and construed
under the laws of the State of Florida, and shall not be amended, modified or
discharged in whole or in part except by an Agreement in writing signed by both
of the parties hereto. The failure of either of the parties to require the
performance of a term or obligation or to exercise any right under this
Agreement or the waiver of any breach hereunder shall not prevent subsequent
enforcement of such term or obligation or exercise of such right or the
enforcement at any time of any other right hereunder or be deemed a waiver of
any subsequent breach of the provision so breached, or of any other breach
hereunder. This Agreement shall inure to the benefit of successors of CompDent
by way of merger, consolidation or transfer of all or substantially all of the
assets of CompDent, and may not be assigned by the Executive. This Agreement
supersedes all prior understandings and agreements between the parties relating
to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date first set forth above.
COMPDENT CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and CEO
EXECUTIVE:
/s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx
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