EXHIBIT 10(s)
EMPLOYMENT AGREEMENT
This agreement is made effective August 1, 2002, between American
Dental Partners, Inc., a Delaware corporation (the "Company"), and Xxxxx
D'Allaird, D.D.S. (the "Employee"), who hereby agree as follows:
(i) Employment. Upon the terms and subject to the conditions
described in this agreement, the Company hereby employs the Employee and the
Employee hereby accepts employment with the Company.
(ii) Term. The Employee's employment with the Company pursuant to
this agreement shall begin on the August 1, 2002 (the "Commencement Date") and
shall end on the fifth anniversary of the Commencement Date (the "Initial
Term"), unless sooner terminated pursuant to (S)7 of this agreement. The term of
this agreement shall renew automatically for successive one-year periods after
the Initial Term (the "Renewal Terms"), unless and until terminated pursuant to
(S)7 of this agreement. When permitted by the context, any reference in this
agreement to the "term of this agreement" shall include the Initial Term and all
Renewal Terms, if any.
(iii) Services. The Employee shall perform such services and be
responsible for such activities as may be reasonably assigned to him from time
to time by the Chief Operating Officer of the Company or such other executive
officer of the Company as may have responsibility for the Company's New York
operations (in either case, the "COO"), subject to the business policies and
operating programs, budgets, procedures, and directions established from time to
time by the Company (the "Services"). The Employee shall devote his best efforts
and full business and professional time, attention, energy, loyalty, and skill
to the rendering of the Services on behalf of the Company, to the business
affairs of the Company, and to the advancement of the Company's interests. The
Employee shall initially have the title of "Regional Vice President," subject to
the Company's right to change such title consistent with the Employee's duties
and responsibilities from time to time.
(iv) Compensation. As compensation for his services under this
agreement, the Company shall pay the Employee a base salary at the annual rate
of $199,680 (the "Base Salary"), payable in accordance with the Company's
general policies and procedures for payment of salaries to its executive
personnel. The Employee's performance shall be reviewed annually for the purpose
of considering potential increases in the Base Salary, but the Company shall not
be obligated to make any such increases. In addition, the Employee may earn an
annual bonus for each year during the term of this agreement in an amount up to
40% of the Base Salary (as in effect from time to time), prorated on a daily
basis for any partial calendar year, which bonus shall be based upon and tied to
the achievement of various objectives to be proposed annually by the COO.
(v) Fringe Benefits and Perquisites. During the term of this
agreement, the Employee shall be entitled to the following fringe benefits and
perquisites:
(a) Group health and welfare benefits comparable to those
offered generally to the Company's executive personnel from time to
time, it being understood and agreed by the Parties that, during the
transition period necessitated by the consummation of the transactions
contemplated by the Purchase Agreement (as defined in (S)6, below), the
benefits described in this (S)5(a) are being provided through the
Client Service Agreement dated on or about August 1, 2002 between ADP
of New York (as defined in (S)6, below) and Capitol Professional
Employer, Inc., a New York corporation dba "The Capital Group," that
such arrangement is being made solely for purposes of convenience to
the Employee, and that without such arrangement the Company would not
be able to offer or provide any group health and welfare benefits to
the Employee during such transition period;
(b) Four weeks paid vacation during each year of this
agreement; and
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(c) Such other benefits and perquisites as may be offered
generally to the Company's executive personnel from time to time
pursuant to such terms, conditions, and policies as may be approved by
the board of directors of the Company, including without limitation
participation in the Company's 1997 Employee Stock Purchase Plan and
Amended and Restated 1996 Stock Option Plan, each as in effect from
time to time.
(vi) Confidentiality; Noncompetition. The Employee hereby
acknowledges and agrees that he is making the covenants described in this (S)6
in consideration of, and that the Company is relying on such covenants in
connection with, the consummation of the transactions contemplated by the Asset
Purchase Agreement among the Company, ADP of New York, LLC, a Delaware limited
liability company and wholly-owned subsidiary of the Company ("ADP of New
York"), 1/st/ Advantage Dental Management, LLC, a Delaware limited liability
company of which the Employee is a member, and others dated the same date as
this agreement (the "Purchase Agreement").
The Employee shall not, directly or indirectly, at any time (whether
during the term of this agreement or thereafter), disclose any Confidential
Information (defined below) to any person, association, or other entity (other
than the Affiliated Companies, as defined below), or use, or permit or assist
any person, association, or other entity (other than the Affiliated Companies)
to use, any Confidential Information, excepting only Confidential Information
which (i) is then generally available to or obtainable by the public and which
did not become so available or obtainable through the breach of any provision of
this agreement by the Employee, or (ii) is obtained by the Employee on a
non-confidential basis from a source other than an Affiliated Company or any
agent or other representative of an Affiliated Company and such source had the
right to disclose such Confidential Information to the Employee without
violating any legal, contractual, fiduciary, or other obligation.
Upon termination of his employment by the Company (for any reason), the
Employee shall immediately deliver to the Company all documents and other
materials containing any Confidential Information which are in his possession or
under his control.
During the term of the Employee's employment with the Company or any
Affiliated Company (whether pursuant to this agreement or otherwise) and during
the Restricted Period (defined below), the Employee shall not, other than on
behalf of the Company, directly or indirectly (whether individually or as a
shareholder (except as a shareholder owning 1% or less of the outstanding
capital stock of a publicly traded corporation) or other owner, partner, member,
director, officer, employee, consultant, creditor or agent of any person,
association, or other entity):
(a) (i) Engage in the practice of dentistry or otherwise
perform professional dental services or related services anywhere in
the Restricted Territory (defined below) other than for Xxxxxx and
Xxxxxx, P.C., a Massachusetts professional corporation (the "MA
Provider"), 1/st/ Advantage Dental Group of NY, P.C., a New York
professional corporation (the "NY Provider"), and Coco and Perry, P.C.,
a Vermont professional corporation (the "VT Provider"), or (ii) enter
into, engage in, or promote or assist (financially or otherwise),
directly or indirectly, any business which provides management,
consulting or other similar services of the type provided by any
Affiliated Company (defined below) to any practice providing dental,
orthodontic, periodontic, prosthodontic, endodontic, or other
professional dental services, pediatric dentistry, or oral surgery
anywhere in the Restricted Territory (defined below);
(b) Induce or encourage any employee, officer, director, agent,
supplier, or independent contractor of any Affiliated Company to
terminate its relationship with any such Affiliated Company, or
otherwise interfere or attempt to interfere in any way with any
Affiliated Company's relationships with its employees, officers,
directors, agents, suppliers, independent contractors, or others;
(c) Employ or engage any person who, at any time within the
one-year period immediately preceding such employment or engagement,
was an employee, officer, director, or agent of any Affiliated Company;
or
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(d) Make any statement (oral or written) or take any other
action which would tend to disparage or diminish the reputation of any
Affiliated Company.
For purposes of this agreement: (i) "Affiliated Companies" shall
include the Company and all subsidiaries or affiliates of the Company other than
Summit Ventures IV, L.P., (ii) "Confidential Information" shall mean all trade
secrets, proprietary data, and other confidential information of any Affiliated
Company, including without limitation financial information, information
relating to business operations, services, promotional practices, and
relationships with Restricted Companies, suppliers, employees, independent
contractors, or other parties, and any information which any Affiliated Company
is obligated to treat as confidential pursuant to any course of dealing or any
agreement to which it is a party or otherwise bound; (iii) "Restricted Period"
shall mean the period beginning on the Commencement Date and ending on the later
of (A) the fifth anniversary of the Commencement Date or (B) the second
anniversary of the date of termination (for any reason) of Employee's employment
with the Company and any Affiliated Companies (whether pursuant to this
agreement or otherwise); and (iv) "Restricted Territory" shall mean, with
respect to (S)6(a)(i), above, the geographic area within a radius of 10 miles
from any offices or facilities operated or otherwise utilized by MA Provider, NY
Provider, or VT Provider at which the Employee has been regularly scheduled to
see patients or has seen patients on a regular basis at any time during the
two-year period immediately preceding the termination of the Employee's
employment with the Company, and, with respect to the remaining sections of this
agreement, the geographic area within a radius of 25 miles from any facility or
operation leased, owned, managed, or operated by any Affiliated Company.
The Employee acknowledges that (A) the provisions of this section are
fundamental and essential for the protection of the Company's legitimate
business and proprietary interests, (B) such provisions are reasonable and
appropriate in all respects, and (C) in the event of any violation by the
Employee of any of such provisions, the Company would suffer irreparable harm
and its remedies at law would be inadequate. In the event of any violation or
attempted violation of such provisions by the Employee, the Company shall be
entitled to a temporary restraining order, temporary and permanent injunctions,
specific performance, and other equitable relief, without any showing of
irreparable harm or damage or the posting of any bond, in addition to any other
rights or remedies which may then be available to the Company.
(vii) Termination. The Employee's employment with the Company shall
terminate automatically upon the death of the Employee, may be terminated by the
Employee at the end of the Initial Term or any Renewal Term upon not less than
90 days prior written notice to the Company, and may be terminated by the
Company, without any further obligation on the part of the Company, under any of
the following circumstances:
(a) Immediately upon notice to the Employee at any time for
Cause (defined below);
(b) Immediately upon notice to the Employee at any time if the
Employee is under a Long-Term Disability (defined below); or
(c) Upon not less than 90 days prior written notice to the
Employee; provided that if the Company terminates the Employee's
employment pursuant to this clause (c) and no other basis for
termination exists under this agreement, then the Employee shall be
entitled to severance payments in an aggregate amount equal to the Base
Salary then in effect prorated for the period equal to the lesser of 12
months or the time remaining in the then-current term after the
effective date of such termination. Any such severance payments shall
be payable periodically in the same manner as the Base Salary is
payable under (S)4 of this agreement, and, notwithstanding any other
provisions of this agreement to the contrary, such severance payments
shall be payable only so long as the Employee is in full compliance
with the provisions of (S)6 of this agreement.
For purposes of this agreement:
(i) "Cause" shall mean:
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(A) any act constituting (1) a felony under the federal
laws of the United States, the laws of any state, or any other
applicable law, (2) fraud, embezzlement, misappropriation of
assets, willful misfeasance, or dishonesty, or (3) other
criminal conduct which in any way materially and adversely
affects the reputation, goodwill, or business position of the
Company;
(B) the failure of the Employee to perform and observe all
material obligations and conditions to be performed and observed
by the Employee under this agreement, or to perform his duties
in accordance with the policies, programs, budgets, procedures,
and directions established from time to time by the COO or the
Company (any such failure, a "Performance Failure"), and to
correct such Performance Failure promptly following notice from
the Company to do so; or
(C) having corrected (or the Company having waived the
correction of) a Performance Failure, the occurrence of any
subsequent Performance Failure; and
(ii) "Long-Term Disability" shall mean that, because of physical
or mental incapacity, it is more likely than not that the Employee will
be unable, within 180 days after such incapacity commenced, to perform
the essential functions of his position with the Company, with or
without reasonable accommodation. In the event of any disagreement
about whether or when the Employee is under a Long-Term Disability, the
question shall be determined: (A) by a physician selected by agreement
between the Employee and the Company if such a physician is selected
within 10 days after either of them requests the other so to agree; or,
if not, (B) by two physicians, the first of whom shall be selected by
the Employee and the second of whom shall be selected by the Company
or, if the Employee fails to make a selection within 10 days after
being requested to do so by the Company, the second physician shall be
selected by the first physician; or, if the two physicians fail to
agree, (C) by a third physician selected by the first two physicians.
The Employee shall submit to all reasonable examinations requested by
any such physicians.
(viii) Capacity. The Employee represents and warrants to the Company
that he has the capacity and right to enter into this agreement and perform all
of his obligations under this agreement without any restriction.
(ix) Remedies. Subject to the right of the Company and the Affiliated
Companies to exercise the remedies described in the last paragraph of 6 of this
agreement in any court having jurisdiction, all disagreements and controversies
arising with respect to this agreement, or with respect to its application to
circumstances not clearly set forth in this agreement, shall be settled by
binding arbitration to be held, and the award made, in Albany, New York,
pursuant to the then-applicable Commercial Arbitration Rules of the American
Arbitration Association. In any such arbitration, the arbitrators shall consist
of a panel of three arbitrators, which shall act by majority vote and which
shall consist of one arbitrator selected by the Party on one side of the issue
subject to the arbitration, one arbitrator selected by the Party on the other
side of the issue, and a third arbitrator selected by the two arbitrators so
selected, who shall be either a certified public accountant or an attorney at
law licensed to practice in the State of New York and who shall act as chairman
of the arbitration panel; provided that if the Party on one side of the issue
selects its arbitrator for the panel and the other Party fails so to select its
arbitrator within 10 business days after being requested by the first Party to
do so, then the sole arbitrator shall be the arbitrator selected by the first
Party. A decision in any such arbitration shall apply both to the particular
question submitted and to all similar questions arising thereafter and shall be
binding and conclusive upon both Parties and shall be enforceable in any court
having jurisdiction over the Party to be charged.
All costs and expenses of arbitration shall be borne by the Parties as
determined by the arbitrator or arbitration panel, except that the fees and
expenses of any arbitrator on an arbitration panel who is selected individually
by a Party shall be borne separately by the Party appointing the arbitrator;
provided that if one Party fails to select an arbitrator for a panel, and the
sole arbitrator is the arbitrator selected by the other Party, then the fees of
that arbitrator shall be borne by the Parties as determined by that arbitrator.
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All rights and remedies of either Party under this agreement are
cumulative and in addition to all other rights and remedies which may be
available to that Party from time to time, whether under any other agreement, at
law, or in equity.
(x) Survival. The termination of the Employee's employment with the
Company (for any reason) shall not relieve either Party of any of that Party's
obligations under this agreement existing at, arising as a result of, or
relating to acts or omissions occurring prior to, such termination. Without
limiting the generality of the preceding sentence, in no event shall the
termination of such employment modify or affect any obligations of the Employee
or rights of the Company under (S)6 of this agreement, all of which shall
survive the termination of such employment.
(xi) Notices. All notices and other communications under this
agreement to any Party shall be in writing and shall be deemed given when
delivered personally, telecopied (which is confirmed) to that Party at the
telecopy number for that Party set forth below, mailed by certified mail (return
receipt requested) to that Party at the address for that Party (or at such other
address for such Party as such Party shall have specified in notice to the other
Party) or delivered to Federal Express, UPS, or any similar express delivery
service for delivery to that Party at that address:
(a) If to the Company:
American Dental Partners, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to
Xxxxx & Xxxxxxxxx LLP
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
(b) If to the Employee:
Xxxxx D'Allaird, D.D.S.
000 Xxxxxxxx Xxxx., Xxxxx 00X
Xxxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
(xii) Severability. The intention of the Parties is to comply fully
with all rules, laws, and public policies to the extent possible. If and to the
extent that any court of competent jurisdiction is unable so to construe any
provision of this agreement and holds that provision to be invalid, such
invalidity shall not affect the remaining provisions of this agreement, which
shall remain in full force and effect. With respect to any provision in this
agreement finally determined by such a court to be invalid or unenforceable,
such court shall have jurisdiction to reform this agreement to the extent
necessary to make such provision valid and enforceable, and, as reformed, such
provision shall be binding on the Parties.
(xiii) Non-Waiver. No failure by either Party to insist upon strict
compliance with any term of this agreement, to exercise any option, to enforce
any right, or to seek any remedy upon any default of the other Party shall
affect, or constitute a waiver of, the other Party's right to insist upon such
strict compliance, exercise that option, enforce that right, or seek that remedy
with respect to that default or any prior, contemporaneous, or subsequent
default. No custom or practice of the Parties at variance with any provision of
this agreement shall affect, or constitute a waiver of, either Party's right to
demand strict compliance with all provisions of this agreement.
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(xiv) Complete Agreement. This agreement and all documents referred
to in this agreement, all of which are hereby incorporated herein by reference,
contain the entire agreement between the Parties and supersede all other
agreements and understandings between the Parties with respect to the subject
matter of this agreement. No alterations, additions, or other changes to this
agreement shall be made or be binding unless made in writing and signed by both
Parties.
(xv) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of law.
(xvi) Captions. The captions of the various sections of this
agreement are not part of the context of this agreement, are only guides to
assist in locating those sections, and shall be ignored in construing this
agreement.
(xvii) Genders and Numbers. Where permitted by the context, each
pronoun used in this agreement includes the same pronoun in other genders and
numbers, and each noun used in this agreement includes the same noun in other
numbers.
(xviii) Successors. This agreement shall be personal to the Employee
and no rights or obligations of the Employee under this agreement may be
assigned by the Employee to any third party. Any assignment or attempted
assignment by the Employee in violation of the preceding sentence shall be null
and void. Subject to the foregoing, this agreement shall be binding upon, inure
to the benefit of, and be enforceable by and against the successors and assigns
of each Party.
AMERICAN DENTAL PARTNERS, INC.
By /s/ XXXXXXX X. XXXXXX /s/ XXXXX D'ALLAIRD, D.D.S.
-------------------------------- ---------------------------
Xxxxxxx X. Xxxxxx, President Xxxxx D'Allaird, D.D.S.
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