EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of the 26th day of January, 1994 by and between Golden Care Network, L.C., a
Florida limited liability company (the "Company"), and Xxxxxxxx Xxxx, an
individual resident of the State of Illinois ("Executive").
R E C I T A L S:
A. The Company is engaged in the business of, among other things,
providing management and consulting services to dental offices throughout the
United States (the "Business").
B. Executive has particular expertise and knowledge concerning the
Business and its operations.
C. The Company desires to employ Executive, and Executive desires to be
employed by the Company' as its Vice President and Chief Operating Officer,
subject to and upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. TERM. The term of this Agreement shall commence on the date hereof
and shall continue until the fourth (4th) anniversary hereof, unless otherwise
terminated in accordance with the term hereof. This Agreement shall b.
automatically renewed for successive one (1) year terms, unless sooner
terminated in accordance with the provisions hereof.
2. ENGAGEMENT AND SERVICES.
2.1 DUTIES. For the Term of this Agreement, including any
and all renewal terms hereof, unless otherwise terminated as provided herein r
Executive shall be the vice President and Chief Operating Officer of the
Company. In such capacity, Executive, subject to the direction of the President
of THE company (the "President") and the board of directors of the company (the
"Board"), shall supervise the overall MANAGEMENT and operations of the Company,
its personnel matters, as well as to provide input to the Company on business
strategy, Executive shall also perform such other duties and exercise such other
power and authority as may from time to time be delegated to Executive by the
President, provided, however, that such duties, power and authority ARE
commensurate with Executive's position with the Company. Executive shall also
provide support and assistance to the President with respect to the sales and
marketing activities of the Company,
2.2 EXCLUSIVE EMPLOYMENT. During the term of this Agreement,
Executive shall devote all of his business time, attention and efforts,
including, without limitation, during normal business hours, to the performance
of his duties; hereunder, and shall use his best
endeavors in the performance thereof, as well as to the promotion of the general
interests and welfare of the Company. As such, Executive agrees that he will not
represent, accept any other employment from or render or perform any services
for, whether or not for compensation, any employer or entity other than the
Company, which representation or employment interferes with the performance of
his duties under this Agreement. Notwithstanding the foregoing, executive shall
have the option to serve on an outside board of directors or to conduct
complimentary services to a third party entity, PROVIDED, HOWEVER, that such
activity (i) does not conflict with Executive's duties hereunder, and (ii)
Executive obtains the Company's prior written consent to such Activity, which
consent shall not be unreasonably withheld.
2.3 LOCATION OF PERFORMANCE. Executive shall perform his
duties and obligations hereunder primarily from the Company/s main offices
located at Sarasota, Florida, and, from time to time, at other locations of the
Company, Notwithstanding the foregoing, Executive recognizes that he will be
required by the Company to travel from time to time in order to fulfill his
duties and obligations hereunder, and Executive agrees to so travel as necessary
or required.
3. COMPENSATION AND RELATED MATTERS.
3.1 BASE SALARY. The base salary (the "Base Salary") of
Executive for each calendar year of this Agreement shall be One Hundred Twenty
Thousand Dollars ($120,000) (or a proportionate amount for a shorter period),
payable in installments consistent with the Company's normal payroll schedule
(subject to applicable taxes and withholdings), or such greater amount as may be
determined each calendar year by the Company at the annual review of Executive.
Notwithstanding anything contained herein to the contrary, nothing in this
Agreement shall be deemed to require the Company to increase Executive's Base
Salary during the term of this Agreement.
3.2 PERFORMANCE PROGRAM. Executive shall be eligible to
participate 1n a performance bonus program. Pursuant thereto, the Company shall,
on July 1, 1995, pay to Executive, as additional incentive compensation for the
services to be rendered by Executive hereunder, assuming Executive is then
employed by the Company on such date, an incentive bonus in cash in an amount
equal to twenty percent (20%) of any additional principal payments required to
be made by Xxxxxx Xxx Xxxxx, Xx. ("Xxxxx") to the Company pursuant to Xxxxx'x
promissory note in favor of the Company, in accordance with the formula set
forth on SCHEDULE 1 attached hereto and made a part hereof, Executive shall not
be eligible to receive such a bonus pursuant to this SECTION 3.2 if the goals
set forth in SCHEDULE 1 attached hereto are not achieved by the Company for any
reason. In addition to the foregoing, executive shall be eligible to participate
in such other performance bonus programs as may from time to time be established
by the Company for the benefit of Executive.
3.3 WARRANTS. In addition to the Base Salary to be paid by
the Company to Executive pursuant to SECTION 3.1 hereof, the Company shall grant
Executive warrants (collectively, "Warrants") to purchase an amount equal to two
percent (2%) of the outstanding ownership interests in the Company computed as
of the date hereof, which translates into twenty (20) shares of equity ownership
of the Company. Such Warrants shall vest (i) twenty-five
2
percent (25%) on the effective date of the commencement of Executives full-time
employment with the Company (the "Commencement Date"), and (ii) twenty-five
percent (25%) on each anniversary of the Commencement Date; provided, however,
that such Warrants shall fully vest sooner upon a public offering of securities
of the Company in which gross proceeds raised are at least Ten Million Dollars
($10,000,000) (a "Public Offering"). Such Warrants may be exercised by Executive
and converted to shares of equity ownership of the Company upon a Public
Offering assuming Executive is employed by the Company as of the date of such
Public Offering. The exercise or conversion price of the Warrants shall be One
Dollar ($1.00) per share. The ability of Executive to sell or transfer the
Warrants shall be restricted as provided in the Warrants. The Company will be
required to purchase and Executive will be required to sell the Warrants or, if
exercised and converted, the shares of equity ownership of the Company upon the
termination of Executive's employment with the Company as provided in the
Warrants and as described in SCHEDULE 2 attached hereto and made a part hereof.
3.4 STOCK OPTIONS. In the event the Company adopts an
employee stock option plan for its employees subsequent to the effective date
hereof, Executive shall, subject to the terms and condition" thereof, be
eligible to participate therein at a level commensurate with Executive's
position with the Company. It is contemplated that awards under such stock
option plan will be subject to individual and company performance targets being
attained.
4. EXPENSES.
4.1 LOCATING SUITABLE RESIDENCE. Except as otherwise
provided herein, the Company shall reimburse Executive for any and all
reasonable and necessary, actual out-of-pocket expenses paid or incurred by
Executive for himself and his family in connection with up to three (3)
round-trip excursions between Illinois and Florida taken solely for the purpose
of locating a suitable residence in Florida for purchase any Executive.
4.2 RELOCATION. Except as otherwise provided herein, the
Company adopts reimburse Executive for any and all reasonable and necessary,
actual out-of-pocket expenses paid or incurred by Executive in connection with
moving Executive and his family and their personal property from Illinois to
Florida. Relocation expenses that are subject to reimbursement by the Company
pursuant to this SECTION 4.2 shall include expenses incurred in connection with
the following:
(a) physical packing, moving and unpacking of
household goods;
(b) to three (3) months of storage of household
goods, it necessary;
(c) closing cost and reasonable attorney's fees (if
any) in connection with the purchase of a residence in Florida, and
(d) the physical transport of one vehicle from
Illinois to Florida.
4.3 ILLINOIS EXCURSIONS. During the period commencing on the
effective date hereof and ending Oh the date six (6) month. "hereafter r in
addition to the house hunting trips described in SECTION 4.1 hereof, the Company
shall, except as otherwise provided herein,
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reimburse Executive for any and all reasonable and necessary, actual
out-of-pocket travel expenses paid or incurred by Executive for himself in
connection with up to two (2) round-trip excursions between Illinois and Florida
per month in the event Executive ha" not secured permanent residence in Florida
as of such month, regardless of whether such excursions are taken for business
or pleasure.
4.4 EMPLOYMENT RELATED EXPENSES. Except as otherwise
provided herein, the Company shall reimburse executive for all reasonable and
necessary, actual out-of-pocket expenses paid or incurred by Executive solely in
connection with and in the course of the performance of his duties under this
Agreement consistent with company policy.
4.5 DETERMINATION OF REIMBURSABLE EXPENSES. All expenses for
which reimbursement is sought pursuant to this SECTION 4 must be supported by
receipts submitted by Executive to the Company. Such reimbursement of expenses
shall be paid by the Company to Executive within thirty (30) days after
Executive submits the receipts therefor to the company.
5. BENEFITS.
5.1 EMPLOYEE BENEFIT PROGRAMS. In addition to the
compensation to be paid by the Company to Executive pursuant to SECTION 3
hereof, during the term of this Agreement, Executive shall also be entitled to
receive the following benefits: (i) participation in a comprehensive group
medical and dental insurance plan of the company on the same basis as is
provided to the other full-time employees of the Company; (ii) participation in
such other benefit programs of the Company to the extent such programs are
provided to the other full-time employees of the Company; (iii) paid holidays
given by the Company to all of its employees; and (iv) ten (10) paid vacation
days for the first full year of Executive's employment with the Company and
fifteen (15) paid vacation days for each additional full year to be taken at
such time or times as are reasonably agreed upon between Executive and the
President and in accordance with the Company's then-current policies regarding
vacation time for its full-time officers and executives
5.2 LIFE INSURANCE. During the term of this Agreement, the
Company agrees to maintain a life insurance policy on the life of Executive
provided Executive is then insurable, the amount of such policy to be equal to
the Base Salary of Executive. Executive shall have the right to designate the
beneficiary of such policy.
5.3 COMPANY CAR. The Company will provide Executive with a
suitable automobile selected by Executive, subject to the approval of the
company, for use by Executive in the performance of his duties hereunder.
5.4 FURNISHED APARTMENT. For the period commencing on the
effective date hereof and ending on the earlier of (i) the closing date in
connection with Executive's purchase of a residence in Florida, and (ii) the
date six (6) months following the effective date hereof, the Company shall
provide Executive with the use of or shall reimburse Executive for the rent and
utility charges paid or incurred by Executive for a suitable, furnished
apartment located in Sarasota, Florida.
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6. TERMINATION.
6.1 TERMINATION FOR CAUSE. Notwithstanding anything
contained in this Agreement to the contrary, the Company, by written notice to
Executive, shall at all times have the right to terminate Executive's employment
hereunder for "Cause," as hereinafter defined, effective immediately upon
Executive's receipt of the Company's written notice of such termination. For
purposes of this SECTION 6 "cause" shall mean:
(i) Any material violation by Executive of any
local, state or federal law or regulation, provided that Executive's
compliance with such law or regulation is material to the performance
of his duties under this Agreement, or any conviction of felony by
Executive;
(ii) Executive's refusal or willful failure to
fulfill, or inability to perform, any material duties ox obligations
required to be performed for the company hereunder or any reason' or
Executive's refusal or repeated failure to perform or adhere to the
rules and regulations of the Company established by the company from
time to time, which refusal or failure is not cured within fourteen
(14) days after notice thereof is GIVEN by the Company to Executive; or
(iii) Any theft, fraud or embezzlement committed by
Executive.
On the effective date of the termination of Executive for
cause pursuant hereto, the Company shall have no further obligations or
liabilities to or for the benefit of Executive under this Agreement, except as
provided in SECTION 6.5 of this Agreement,
6.2 TERMINATION IN THE EVENT OF DEATH. Notwithstanding
anything contained in this Agreement to the contrary, this Agreement, and all
obligations and liabilities of the parties hereunder, shall immediately
terminate in the event of Executive's death.
6.3 TERMINATION WITHOUT CAUSE. Notwithstanding anything
contained in this Agreement to the contrary, the Company shall at all times have
the right to terminate Executive's employment hereunder without "cause" and for
any reason whatsoever by giving Executive at least thirty (30) calendar days,
prior written notice of its intent to so terminate. In the event of the
Company's election to terminate Executive's employment hereunder pursuant to
this. Section 6.3, such employment shall immediately and automatically terminate
upon the expiration of the thirty (30) calendar day notice period, without any
further notification or action on the part of the Company, unless Executive
gives the Company reason to terminate Executive for "Cause" in which case the
effective date of termination shall be immediate.
On the effective date of the termination of Executive without
Cause pursuant to this SECTION 6.3, the Company shall have no further
obligations or liabilities to or for the benefit of Executive under this
Agreement, except as provided in SECTION G.6 of this Agreement.
6.4 VOLUNTARY TERMINATION BY EXECUTIVE. Notwithstanding
anything contained in this Agreement to the contrary, Executive shall at all
times have the right to voluntarily terminate his employment hereunder by giving
the Company at least sixty (60) calendar days'
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prior written notice of his intent to so terminate. In the event of Executive`s
election to so terminate his employment hereunder pursuant to this SECTION 6.4,
such employment shall immediately and automatically terminate upon the
expiration of the sixty (60) calendar day notice period, without any further
notification or action on the part of Executive, unless Executive gives the
Company reason to terminate Executive for "Cause" in which case the effective
date of termination shall be immediate.
On the effective date of the voluntary termination of
Executive pursuant to this SECTION 6.4 the Company shall have no further
obligations or liabilities to or for the benefit of Executive under this
Agreement, except as provided in SECTION 6.5 of this Agreement.
6.5 PAYMENTS TO EXECUTIVE UPON TERMINATION OTHER THAN
WITHOUT CAUSE. Upon the termination of Executive's employment pursuant to this
SECTION 6.3, the Company shall be other than as provided in SECTION 6.3, the
Company shall be obligated to pay to Executive, and Executive shall be entitled
to receive from the Company; (i) Executive's Base Salary to the effective date
of termination; (ii) accrued vacation to the effective date of termination;
(iii) accrued bonuses, if any are declared by the company for Executive,
accruing prior to the effective date of termination; and (iv) any amounts for
which Executive is entitled to, but has not received, reimbursement in
accordance with SECTION 4 hereof, provided that such amounts were incurred prior
to the effective date of termination.
Upon payment to Executive of the foregoing items, the Company
shall have no further obligation or liability to or for the benefit of Executive
whatsoever.
6.6 PAYMENTS TO EXECUTIVE UPON TERMINATION WITHOUT CAUSE.
Upon the termination of Executive's employment pursuant to Section 6.3 hereof,
the Company shall be obligated to pay to Executive, and Executive shall be
entitled to receive from the Company, each of the items described in SECTION 6.3
hereof. In addition, the Company agrees to continue to pay the Base Salary to
Executive for the period commencing on the effective date of termination and
ending on the date nine (g) months thereafter. Further, Executive shall be
entitled to such performance bonus described in section 3.2 hereof that he
otherwise would have been entitled to receive had he not been terminated by the
Company without "Cause" pursuant to Section 6, 3 hereof.
Upon payment to Executive of the foregoing items, the Company
shall have no further obligations or liability to or for the benefit of
Executive whatsoever,
7. OFF-SET. The parties hereto agree that the Company shall have the
right to off-set, from, any amounts otherwise due and owing to Executive
pursuant to this Agreement, any and all undisputed amounts legitimately owed by
Executive to the Company or any of its Affiliate (as hereinafter defined),
whether pursuant to this Agreement or to any other agreement or obligation.
8. WITHHOLDING. All compensation payable to Executive pursuant to this
Agreement shall be subject to customary withholding taxes and such other
employment taxes as are required under federal law or the law of any state or
governmental body to be collected with respect to compensation paid by an
employer to an employee.
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9. CONFIDENTIAL INFORMATION. Executive acknowledges and agrees that
he has been given, and by virtue of his employment by the Company pursuant
hereto will be given, access to and possession of certain valuable and
confidential information, both verbal and written, proprietary to the Company,
including, without limitation, information regarding technical and non-technical
data, compilations, programs, methods, techniques, processes and financial data,
all of which is sufficiently secret to derive economic value, actual or
potential, from not being generally known to other persons who can obtain
economic value from its disclosure or use, and which is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy or
confidentiality. Such proprietary and confidential information specifically
includes, without limitation: (a) instruction in and experience regarding the
methods of operation practiced by the Company; (b) lists of, or access to,
actual or potential customers and suppliers of the Company or the Business; (c)
trade secrets; (d) information contained in any memoranda, discussions, notes,
correspondence, surveys, investigations and the like by or between the employees
of the Company; (e) information received from employees, associate`:, officers
or consultants employed or retained by the Company pertaining to the Business or
the general operations of the Company; and (f) the Company's proprietary
advertising and marketing campaigns and strategies regarding the Business or the
Company..
All of such proprietary and confidential information and business relationships,
including, without limitation, that information and those business relationships
specified in this SECTION 9, are hereinafter collectively referred to as
"Confidential Information". Confidential Information, however, shall not include
any information that, through no act of Executive, has become available to the
general public. Executive shall hold in confidence and not use or disclose,
either for his own benefit or the benefit of any third party, either during or
after Executive's employment with the Company, except as specifically authorized
by the Company in writing for the Company's own benefit, any Confidential
Information that Executive may obtain or have obtained or may create or has
created during the period of Executive's employment hereunder. Upon termination
of Executive's employment with the Company for any reason, Executive shall
promptly return and deliver to the Company all documents, manual", letters,
notes, records, reports and all other materials of a secret or confidential
nature either obtained or arising as a result of Executive's employment
hereunder, including, without limitation, any and all forms and stages of
Confidential Information, that remain in his possession. The terms of this
SECTION 9 shall survive the termination of this Agreement for whatever reason.
10. NON-COMPETITION: NON-SOLICITATION. Executive agrees that, by
virtue of his employment with the Company, he has and will develop and obtain
knowledge and familiarity with the operations of the Company's Affiliates and
their respective businesses, operating and marketing procedures and the identity
of their respective customers, the disclosure of which would result in a
significant economic detriment to the Company. To protect the Company, for a
period of one (1) year commencing on the effective date of termination of
Executive's employment with the company for any reason, Executive shall not:
(i) Directly or indirectly, own, manage, operate, control or
participate in, or have any financial interest in or aid or assist
anyone in the conduct of, or otherwise engage in, any business
(whether it be a sole proprietorship, partnership, corporation or
other entity) that (a) in any way competes with the Company or its
Affiliates or any successor thereto, or their respective businesses,
or otherwise calls upon, solicits, advises,
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or does, or attempts to do, business with any client, customer or
patient of the Company or any of its Affiliates or any successor
thereto, and (b) is located or operating anywhere within the defined
licensed and/or franchised territory of the Company or any of its
Affiliates or any successor thereto, including, without limitation,
any office or location of any franchisee of the company or any of its
Affiliates or any successor thereto, PROVIDED, HOWEVER, that the
foregoing restriction "hall be null and void and o, no force or effect
in the event that Executive is terminated without "Cause" pursuant to
SECTION 6.3 hereof; or
(ii) Solicit or otherwise encourage any employee of Company
or any of its Affiliates or any successor thereto to terminate his or
her employment with the company or any of its Affiliates or any
successor thereto, or to enter into employment with any other person,
firm or corporation.
In addition, Executive agrees that he shall not, in any way, slander,
libel or through any other improper means take any action that is intended to be
detrimental to the company or any of its Affiliates or any successor thereto, or
their respective businesses, services, officers, personnel or operations.
For purposes of this Agreement, an "Affiliate" of an entity shall mean
any person, corporation, proprietorship, partnership, trust, limited liability
company or other business entity that, directly or indirectly, owns or control,
is under common ownership or control with, or is owned or controlled by, such
entity. For purposes of this definition, "control" means the possession of the
power to direct or cause the direction of management and policies of such
entity, whether through the ownership of voting securities, by contract or
otherwise
If any provision or part of this SECTION 10 is held to be unenforceable
because of the duration of such provision or the area covered thereby, Executive
agrees that the court making such determination "hall have the power to modify
such provision, to reduce the duration or area of such provision, or both, or to
delete specific words or phrases herefrom ("blue-penciling") in a manner that
would provide the greatest possible protection to the Company' and then, in its
reduced or blue-penciled form, such provision on shall then be enforceable and
shall be enforced.
11. EQUITABLE REMEDIES. Executive agrees that the covenants
contained in Sections 9 and 10 hereof are vital to the viability of the company,
its Affiliates and each of their respective businesses. In that regard,
Executive agrees that any breach of SECTION 9 OR 10 hereof would cause
irreparable and immediate harm to the Company and that money would not be an
adequate remedy in the event of any such breach. By reason of the foregoing,
Executive agrees that the Company shall be entitled to injunctive relief in the
event of any breach of Section 9 or 10 hereof. In addition, Executive agrees to
reimburse the Company and its Affiliates for any and all reasonable costs and
expenses (including, without limitation, attorneys' fees and costs) incurred by
the Company or any of its Affiliates as a result of their enforcing the terms
and provisions of this Agreement and their instituting or defending any
litigation, contest, dispute, suit or proceeding against Executive in any way
relating to this Agreement, provided that the Company prevail" in such action.
Nothing herein shall prevent the Company or any of its Affiliates from electing
to seek any monetary or other relief in addition to or in lieu of any equitable
relief for breach of Sections 9 or 10 hereof. The failure of the Company or any
of its Affiliates to promptly
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institute a legal action upon any such breach shall not constitute a waiver of
that or any other breach hereof.
12. NOTICES. Any notices, demands, requests, consents or Approvals
to be given hereunder shall be in writing and shall be deemed given when
delivered personally to the person to whom intended, two (2) days after deposit
in the United states mail, certified, postage prepaid, return receipt requested,
one (1) day after deposit with a commercial courier sent for next day delivery,
or upon transmittal if telecopied, to the following addresses:
If to Executive, to: Xxxxxxxx Xxxx
------------------------------
Telecopier Number: ___________
If to the Company, to: Golden Care Network, L.C.
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
Telecopier Number: (000) 000-0000
Any party hereto may change his or its address for notice by
communicating such change of address to the other party.
13. Applicable Law This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
14. NONASSIGNABLE RIGHTS. This Agreement and all rights and benefits
hereunder are binding upon and shall inure to the benefit of Executive and the
Company, as well as to the benefit of the company's successors. The obligations
of Executive hereunder are personal to Executive; accordingly, neither this
Agreement nor any right or interest of Executive herein, or arising hereunder,
shall be voluntarily or involuntarily sold, transferred or assigned by Executive
without the prior written consent of the Company or its successor in interest.
This Agreement shall be assignable by the Company, provided, however, that in
the event (i) the Company sells all or substantially all of its assets to a
third party, or (ii) majority control of the Company is transferred to any third
party, Executive shall have the right to terminate his employment hereunder, and
such termination shall be deemed a termination without " Cause "
15. SEVERABILITY. In the event that any provision of this Agreement is
determined to be invalid or unenforceable, the remaining terms and provisions of
this Agreement shall be unaffected and shall remain in full force and effect,
and any such determination of invalidity or unenforceability shall in no way
affect the validity or enforceability of any other provision of this Agreement.
16. WAIVER. No delay on the part of any party in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any waiver of
any right, power or privilege operate as a waiver of any other
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right, power or privilege, nor shall any single or partial exercise of any
right, power or privilege preclude any other or further exercise thereof or of
any other right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedy which the parties
otherwise may have at law or in equity.
17. HEADINGS. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or construction hereof.
18. ENTIRE AGREEMENT. This instrument sets forth the entire agreement
and understanding between the parties hereto with respect to Executive's
employment by the Company and supersedes all prior and contemporaneous
discussions and agreements with respect thereto, This Agreement may only be
modified in a writing signed by both parties hereto,
19. COUNTERPART. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument,
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
GOLDEN CARE NETWORK, L.C.
By:____________________________________
Its:___________________________________
_______________________________________
Xxxxxxxx Xxxx
00
XXXXXXXXX XX. 0 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement (this "Amendment") is made
and entered into as of October 25, 1996 by and between Dental Care Alliance,
Inc., a Delaware corporation (the "Company"), and Xxxxxxxx X. Xxxx, an
individual resident of the State of Florida ("EXECUTIVE").
RECITALS
A. The Company and Executive are parties to that certain Employment
Agreement, dated as or January 26, 1994, by and between Golden Care Network,
L.C. ("Golden Care") and Executive (the "AGREEMENT").
B. Golden Care was merged with and into the Company and upon the
effectiveness of such merger all of the outstanding assets and liabilities of
Golden Care became outstanding assets and liabilities of the Company (the
"MERGER") .
C. In connection with the Merger, the parties hereto are amending the
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. AFFIRMATION OF AGREEMENT. The Company and the Executive hereby
acknowledge and agree to be bound to the terms and conditions of, and that all
rights and benefit under the Agreement, as amended, shall inure to the benefit
of Executive and the Company as successor to Golden Care.
2. AMENDMENT. The Agreement is hereby amended as follows:
(a) Section 3.3 is deleted in its entirety and the
following is substituted in lieu thereof:
3.3 WARRANTS. In addition to the Base Salary to be
paid .by the Company to Executive pursuant to SECTION 3.1 hereof, the
Company grants Executive warrants (collectively, "WARRANTS") to
purchase an amount equal to four percent (4%) of the outstanding Common
Stock of the Company, $0.01 par value per share (the "COMMON STOCK"),
computed as of the date hereof, which translates into Two Thousand
(2,000) shares of Common Stock (as adjusted pursuant to the Warrant
Agreement defined below). Such Warrants may be exercised by Executive
and converted to Common Stock as provided in the Warrant Agreement,
dated as of the date hereof, between the Company and the Executive (the
"WARRANT AGREEMENT"). The ability of Executive co sell or transfer the
Warrants shall be restricted as provided in the Warrant Agreement. Upon
the termination of Executive's employment with the Company, for any
reason, Executive
shall be obligated to exercise and convert the Warrants and sell the
Common Stock obtained upon conversion of the Warrants to the Company
and the Company shall be obligated to purchase such Common Stock as
provided in SCHEDULE 2 attached hereto and made a part hereof. The
purchase price for such Common Stock obtained upon conversion of the
Warrants hereof shall be paid in cash in three consecutive equal annual
installments, the first installment due ten (10) days after the date
the Company receives written notice of Executive's election to exercise
the Warrants, and the SECOND and third installments due on the first
and second anniversaries of such date
(b) SCHEDULE 2 is deleted in its entirety and SCHEDULE 2
attached hereto and made a part hereof is substituted in lieu thereof.
(c) SECTION 5.1 is amended by adding the following to end of
SUBSECTION (I):
PROVIDED, that if Executive chooses to opt out of coverage under the
Company's comprehensive group medical insurance plan and gives written
notice of such election to the Company, the Company shall pay to
Executive One Hundred Fifty Dollars ($150) per month in lieu of
granting Executive coverage under such medical insurance plan;
(d) SECTION 5.3 is deleted in its entirety and the following
is substituted in lieu thereof:
5.3 AUTOMOBILE ALLOWANCE. Except as otherwise
provided herein, the Company shall pay to Executive, during the term of this
Agreement, up to Five Hundred Dollars ($500) per month to be used by Executive,
in his sole discretion, for expenses paid or incurred by Executive in connection
with the acquisition, use and maintenance of an automobile by Executive. In
addition to the foregoing, Executive shall be reimbursed for the cost of any gas
purchased by Executive for use in an automobile driven by him for business
purposes as requested by the Company; PROVIDED, that such business purposes
involve travel by automobile to destinations outside of a hundred (100) mile
radius of the Executive's permanent residence.
(e) The following shall be added in its entirety after the
last sentence in the first paragraph of each of SECTION 6.5 and SECTION 6.6:
In addition, the Company shall be obligated to purchase from Executive and
Executive shall be obligated to convert all Warrants and sell to the Company all
Common Stock obtained upon exercise and conversion of such Warrants at the
purchase price set forth in SCHEDULE 2 attached hereto and made a part hereof.
3. MISCELLANEOUS.
(a) HEADING. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or construction hereof
2
(b) REFERENCES. Any reference to the Agreement contained in
any notice, request, certificate' or other document executed concurrently with
or after the execution and delivery of this Amendment shall be deemed to include
this Amendment unless the context shall otherwise require.
(c) CONTINUED EFFECTIVENESS. Notwithstanding anything
contained herein, the terms of this Amendment are not intended to and do not
serve to effect a novation as to the Agreement. The Agreement, as amended
hereby, shall remain in full force and effect.
(d) COUNTERPART. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
(e) GOVERNING LAW. THIS AMENDMENT SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES.
(f) SUCCESSORS AND ASSIGNS. In the event that any provision
of this Amendment is determined to be invalid or unenforceable, the remaining
terms and provisions of this Amendment shall be unaffected and shall remain in
full force and effect, and any such determination of invalidity or
unenforceability shall in no way affect the validity or enforceability of any
other provision of this Amendment.
(g) SUCCESSORS AND ASSIGNS. This Amendment and all rights and
benefits hereunder are binding upon and shall inure to the benefit of Executive
and the Company, as well as to the benefit of the Company, s successors. The
obligation of Executive hereunder are personal to Executive; accordingly,
neither this Amendment nor any right ox interest of Executive herein, or arising
hereunder, shall be voluntarily or involuntarily sold, transferred ox assigned
by Executive without the prior written consent of the Company or its successor
in interest.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
DENTAL CARE ALLIANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
Equity Holder:
/s/ Xxxxxxxx X. Xxxx
--------------------------------------------
Xxxxxxxx X. Xxxx
3
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
This Amendment No. 2 to Employment Agreement (this "Amendment") is made
and entered into as of October __, 1997 by and between Dental Care Alliance,
Inc., a Delaware corporation (the "Company"), and Xxxxxxxx X. Xxxx, an
individual resident of the State of Florida ("Executive").
RECITALS
A. The Company and Executive are parties to that certain Employment
Agreement, dated as of January 26, 1994, by and between Golden Care Network,
L.C. and Executive, as amended by that certain Amendment No. 1 to the Employment
Agreement dated October 25, 1996 (the "Agreement");
B. The Company and the Executive desire to modify the terms of the
Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. AMENDMENT. The Agreement is hereby amended as follows:
(a) Section 3.2 is deleted in its entirety and the following is
substituted in lieu thereof:
3.2 PERFORMANCE PROGRAM. In respect to each fiscal year
ending during the term of Executive's employment hereunder commencing
with the fiscal year ending December 31, 1997 (but only as to the
fourth quarter of fiscal 1997), Executive shall receive as additional
compensation for services rendered to the Company an incentive bonus in
cash in an amount equal to twenty-five percent (25%) of an annual bonus
pool which shall be equal to fifty percent (50%) of the Company's net
income as reflected on its audited financial statements for the
applicable fiscal year (in accordance with generally accepted
accounting principles, consistently applied with prior years) in excess
of the Company's budgeted net income ("Budgeted Net Income") as
determined by the Compensation Committee of the Company for the fiscal
year. For the purposes hereof and notwithstanding anything else
contained herein, if and when any class of shares of the Company's
capital stock becomes publicly traded, Budgeted Net Income for any
fiscal year or quarter shall not be greater than the average of net
income estimates of the analysts who regularly provide estimates of the
Company's net income, as last reported prior to the commencement of the
fiscal year ("Net Income Estimates"). The bonus paid to Executive for
any year may not exceed $100,000.
The Executive shall be entitled to receive the estimated amount
of the bonus (the "Estimated Bonus Payment"), net of applicable
withholding and other taxes, within fifteen (15) days after the end of
the calculation of net income for each quarter during the term of
Executive's employment hereunder, such Estimated Bonus Payment to be
based on the Company's net income as reflected on the Company's
unaudited consolidated financial statements as reviewed and approved by
the Board for the applicable quarter in excess of the Company's
budgeted net income for the quarter. The Estimated Bonus Payments will
be subject to upward or downward adjustment based on the Company's
annual audited consolidated financial statements (the "Adjustment").
The Adjustment shall be paid by the Executive to the Company, or shall
be paid by the Company to the Executive, as the case may be, within
fifteen (15) days of receipt of the Company's audited consolidated
financial statements. In the event the Executive does not reimburse the
Company for any Adjustment within such fifteen-day period, the Company
shall have the right to offset the Adjustment against any other
payments due to the Executive hereunder.
The bonus shall be prorated for any fiscal year during the term
of the Agreement that is less than a full fiscal year, subject to the
provisions of Section 6 of the Agreement respecting payments in the
event of termination, provided that in such event, the Estimated Bonus
Payments for any quarter shall be the actual bonus for such quarter,
unless adjustments are subsequently made to that quarter's unaudited
financial statements. In addition to the foregoing, Executive shall be
eligible to participate in such other performance bonus programs as may
from time to time be established by the Company for the benefit of
Executive.
2. MISCELLANEOUS.
(a) HEADING. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or construction hereof
(b) REFERENCES. Any reference to the Agreement contained in any
notice, request, certificate or other document executed concurrently with or
after the execution and delivery of this Amendment shall be deemed to include
this Amendment unless the context shall otherwise require.
(c) CONTINUED EFFECTIVENESS. Notwithstanding anything contained
herein, the terms of this Amendment are not intended to and do not serve to
effect a novation as to the Agreement. The Agreement, as amended hereby, shall
remain in full force and effect.
(d) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
2
(e) GOVERNING LAW. This Amendment shall be a contract made under
and governed by the laws of the State of Florida without regard to conflict of
laws principles.
(f) SUCCESSORS AND ASSIGNS. In the event that any provision of
this Amendment is determined to be invalid or unenforceable, the remaining terms
and provisions of this Amendment shall be unaffected and shall remain in full
force and effect, and any such determination of invalidity or unenforceability
shall in no way affect the validity or enforceability of any other provision of
this Amendment.
(g) SUCCESSORS AND ASSIGNS. This Amendment and all rights and
benefits hereunder are binding upon and shall inure to the benefit of Executive
and the Company, as well as to the benefit of the Company's successors. The
obligation of Executive hereunder are personal to Executive; accordingly,
neither this Amendment nor any right or interest of Executive herein, or arising
hereunder, shall be voluntarily or involuntarily sold, transferred or assigned
by Executive without the prior written consent of the Company or its successor
in interest.
3
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
DENTAL CARE ALLIANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title:President
Equity Holder:
/s/ XXXXXXXX X. XXXX
-------------------------------
Xxxxxxxx X. Xxxx
