Exhibit 10.06
EMPLOYMENT AGREEMENT
This agreement is made effective September 12, 2000 (the "Commencement
Date"), between OneDentist Resources, Inc., a Colorado corporation, 0000
XxXxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxx 00000 (the "Company"), and Xxxxxx X.
XxXxxxx, III, 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, Xxxx 00000 (the "Executive")
(collectively, the "Parties"), who hereby agree as follows:
ss.1. Employment. The Company hereby employs the Executive, and the
Executive hereby accepts employment by the Company, upon the terms and subject
to the conditions described in this agreement.
ss.2. Term. The initial term of the Executive's employment with the Company
pursuant to this agreement shall be a period of two years beginning on the
Commencement Date and ending on the second anniversary of the Commencement Date
(the "Initial Term"), unless sooner terminated pursuant to ss.10 of this
agreement. If the Executive's employment with the Company pursuant to this
agreement is not terminated pursuant to ss.10 on or before the end of the
Initial Term, then the term of the Executive's employment pursuant to this
agreement shall automatically renew for successive one-year terms thereafter
until the Executive's employment is terminated pursuant to ss.10 (the "Renewal
Terms").
ss.3. Services. The Executive shall serve as the president and chief
operating officer of the Company, reporting only to the board of directors of
the Company (the "Board"), and, subject only to the authority and control of the
Board as required under applicable law, shall have supervision and control over,
and responsibility for, the general management and supervision of the day-to-day
activities of the Company, including without limitation the authority and right
to: (a) hire and fire employees, consultants, accountants, attorneys, and other
professionals and agents of whatever description, and to determine and establish
the terms and conditions of their employment or retainer, (b) establish
operating strategies, policies, and objectives, (c) advise, consult, and
participate in planning sessions, and advise the Board in matters pertaining to
the operation of the Company's business, (d) negotiate, enter into, and
terminate contracts or agreements with suppliers, customers, vendors, or any
other third parties, (e) develop and implement policies regarding accounts
payable, accounts receivable, and pricing, and (f) take any and all actions on
behalf of the Company in connection with the foregoing which the Executive deems
necessary or appropriate; provided that the Executive shall not have the right
to take any of the actions specified in Exhibit A attached to this agreement
without obtaining the prior approval of the Board. The Executive shall have such
other powers and duties as may be prescribed from time to time by the Board and
agreed to in writing by the Executive; provided that the nature of the
Executive's powers and duties shall at all times be that of the person serving
as president and chief operating officer of the Company in charge of the general
management and supervision of the day-to-day activities of the Company.
Notwithstanding the foregoing, the Parties contemplate that within a reasonable
period of time after the Company completes its initial public offering of its
common stock (the "IPO") pursuant to a registration statement filed under the
Securities Act of 1933, as amended (the "33 Act"), the Executive shall become
the chief executive officer of the Company. The Executive shall exercise
reasonable efforts to keep the Board generally informed, on a timely basis, of
all material actions taken by the Executive on behalf of the Company.
During the term of this agreement, the Executive shall perform his services
under this agreement in a diligent and professional manner, and shall devote all
of his business time, attention, energy, loyalty, and skill to the Company's
business; provided that the Executive shall be entitled to: (i) engage in and
devote time to other business and professional activities related to the
Company's business, including without limitation attendance at business and
trade conventions and meetings of professional associations, (ii) serve on the
boards of directors or similar bodies of other companies so long as such
activities do not materially interfere with the performance of his services for
the Company, and (iii) take such periodic vacations and sick leaves as may be
provided to the Company's executive personnel. In addition, the Company
acknowledges that: (A) the Executive is a party to an existing consulting
agreement with Twenty First Century Communications, Inc. (the "Consulting
Agreement"), and (B) the Executive shall be entitled, without being in breach of
this agreement, to continue the performance of his services under the Consulting
Agreement until December 31, 2002, to the extent that the performance of such
services do not materially interfere with the performance of his services for
the Company under this agreement. Notwithstanding the foregoing, so long as the
Consulting Agreement is in effect, the Executive shall limit his other business
activities so that such activities, when combined with his activities under the
Consulting Agreement, do not materially interfere with the performance of his
services for the Company under this agreement.
The Executive shall perform his services under this agreement primarily at
the Company's present place of business in Columbus, Ohio, or at such other
premises in Columbus, Ohio or its contiguous suburbs to which the Company's
corporate offices may be relocated during the term of this agreement. The
Executive shall not be required to travel more than is reasonably necessary for
the performance of his services under this agreement, and the Executive shall
not be required to relocate from the Columbus, Ohio area. The Executive
represents and warrants to the Company that his obligations under this agreement
do not conflict with any other agreement to which he is a party.
ss.4. Compensation. Until the Company obtains the Financing, the Company
shall pay the Executive a base salary at the rate of $5,000 per month, and after
the Company obtains the Financing, the Company shall pay the Executive a base
salary at the rate of $10,000 per month, in each case prorated on a daily basis
for any partial calendar months. The base salary shall be payable in accordance
with the Company's general policies and procedures for payment of salaries to
its executive personnel, provided that the base salary shall be paid not less
frequently than in equal bi-monthly installments.
For purposes of this agreement, the term "Financing" shall mean the
Company's or any of its affiliates' issuing any securities, or otherwise
obtaining financing, resulting in gross proceeds to the Company or any of its
affiliates of at least $1 million. The Company hereby agrees that it shall use
its reasonable best efforts to obtain the Financing.
ss.5. Incentive Bonus Plan. As soon as reasonably practical following the
Parties' execution of this agreement, the Parties will negotiate in good faith
an incentive bonus plan providing for payment of cash bonuses to the Executive
based upon reasonable performance criteria agreed upon by the Executive and the
Board (the "Bonus Plan"). The Bonus Plan shall be set forth in a writing signed
by both Parties. The Bonus Plan shall be reviewed not less often than annually
by the Parties for appropriate modifications.
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ss.6. Fringe Benefits and Perquisites. The Executive shall be entitled to:
(a) such fringe benefits and perquisites as are provided from time to time to
chief executive officers of other companies of similar size in similar
businesses as the Company, as reasonably determined by the Board, including
without limitation group health and group life insurance, individual life
insurance, and payment of dues to professional associations; and (b) such other
fringe benefits and perquisites as may be provided for the Company's executive
personnel. The Executive's compensation, fringe benefits, and perquisites under
this agreement shall be reviewed not less often than annually by the Board for
appropriate increases. Such compensation, fringe benefits, and perquisites shall
not be decreased during the term of this agreement without the Executive's
written consent.
ss.7. Stock Options. The Company hereby grants to the Executive an option
to purchase 450,000 shares of the Company's common stock, no par value (the
"Shares"), pursuant to the terms set forth on the attached Exhibit B (the
"Initial Option"). As soon as practicable following the IPO, the Company shall
register the Shares subject to the Initial Option for sale on Form S-8 pursuant
to the 33 Act. In addition, the Executive shall have the right to participate in
any stock option or stock incentive plan established or sponsored by the Company
from time to time on a basis no less favorable than that of the Company's other
executives.
ss.8. Indemnification. The Company shall indemnify the Executive with
respect to liabilities which may be incurred by him as a director, officer,
employee, or agent of the Company to the fullest extent permitted under
applicable law. The Company's indemnification of the Executive may be more
completely described in one or more separate indemnification agreements in form
and substance satisfactory to the Executive and the Company. The Executive shall
not be required to sign any filing made by the Company with the Securities and
Exchange commission or similar federal or governmental agency, or any securities
exchange, market, or similar body, unless, and only to the extent that, the
Executive serves on the Board at the time the filing is made and all of the
directors are required by applicable law or regulations to sign such filing;
provided that after the Executive becomes the chief executive officer of the
Company, the foregoing prohibition shall not apply to any filing made thereafter
that: (a) pursuant to applicable law or regulations, requires the signature of
the individual holding an office with the Company which the Executive then
holds; and (b) is reviewed and approved by the Executive, legal counsel to the
Company, and, to the extent appropriate, the Company's firm of independent
auditors.
ss.9. Expenses. The Company shall reimburse the Executive for all
reasonable out-of-pocket expenses incurred by him in connection with the
performance of his services under this agreement or pursuant to authority
conferred upon him by this agreement or the Board, subject to any reasonable
record keeping, reporting, or similar requirements imposed pursuant to policies
and procedures of the Company in effect from time to time. In addition, the
Company shall pay the reasonable legal fees and expenses incurred by the
Executive in connection with the negotiation and preparation of this agreement
and the review for the Executive's benefit of the Company's actual or proposed
filings or other documents relating to the registration, offer, or sale of any
securities by the Company, in an amount not to exceed $3,500.
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ss.10. Termination of Employment. The Executive's employment with the
Company under this agreement shall terminate automatically upon the Executive's
death and may be terminated:
(a) By either the Company or the Executive at any time without Cause
or Good Reason (each as defined below), respectively, by giving not less
than 90 days advance notice to the other Party;
(b) By the Company immediately upon notice to the Executive at any
time because the Executive is Disabled (as defined below), or for Cause,
subject to the last paragraph of this section;
(c) By the Executive immediately upon notice to the Company at any
time for Good Reason; or
(d) By either the Company or the Executive at the end of the Initial
Term or any Renewal Term by giving not less than 90 days' advance notice to
the other Party.
For purposes of this agreement:
(i) "Cause" for termination of the Executive's employment by the
Company shall mean (A) the Executive has breached a provision of this
agreement, and has not cured such breach within 30 days after notice to the
Executive from the Company to do so, (B) the Executive is convicted of or
pleads guilty to a felony or misdemeanor charge involving financial
misconduct or moral turpitude, or (C) the Executive knowingly engages in,
or threatens to engage in, on behalf of the Company conduct which results
in, or will result in, a material violation of law by the Company.
(ii) "Good Reason" for termination by the Executive of his employment
with the Company shall mean: (A) any material reduction, without the
Executive's express written consent, in the power, authority, title,
responsibility or position of the Executive with respect to his employment
by the Company, (B) any reduction, without the Executive's express written
consent, in the Executive's compensation, fringe benefits, perquisites, or
other benefits under this agreement, (C) a breach of any provision of this
agreement by the Company and such breach is not cured within 30 days after
notice to the Company from the Executive to do so, or (D) a Change In
Control of the Company (defined below);
(iii) The Executive shall be deemed to be "Disabled" if the Executive
is unable to perform his services pursuant to this agreement due to
physical or mental disability for a period of 30 consecutive business days,
or for 90 days during any 360-day period; and
(iv) A "Change In Control" shall be deemed to have occurred if: (i)
any "person" as defined in ss.3(a)(9) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), and as used in ss.ss.13(d) and 14(d) of
the 1934 Act, including a "group" within the meaning of ss.13(d) of the
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1934 Act (hereinafter simply a "Person"), acquires "beneficial ownership"
(within the meaning of rule 13(d)-3 under the 0000 Xxx) of securities of
the Company representing more than 50% of the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in
the election of directors of the Company (the "Company Voting Securities"),
provided that for purposes of this clause, the term "Person" shall not
include the Company, (ii) during any period of 24 consecutive months, the
individuals who, at the beginning of such period, constitute the Board (the
"Incumbent Directors") cease for any reason other than death to constitute
at least a majority of the Board, (iii) the stockholders of the Company
approve a reorganization, merger, consolidation, or recapitalization of the
Company, or a sale or other disposition of all or substantially all of the
assets of the Company, or the acquisition of the assets of another
corporation (any such transaction a "Business Combination"), or the Company
completes a Business Combination for which stockholder approval is not
obtained, unless, in any such case following such Business Combination (A)
individuals or entities who were beneficial owners of Company Voting
Securities outstanding immediately prior to such Business Combination,
including without limitation all of the individuals and entities who were
the beneficial owners of at least 5% of the Company Voting Securities
outstanding immediately prior to such Business Combination (the "Major
Shareholders"), beneficially own, directly or indirectly, immediately
following such Business Combination, more than 50% of the combined voting
power of all then outstanding voting securities entitled to vote generally
in the election of directors of the corporation resulting from such
Business Combination, with no change of more than 50% in any Major
Shareholder's ownership interest, and (B) at least a majority of the
members of the board of directors of the corporation resulting from such
Business Combination were Incumbent Directors at the time of the execution
of the initial agreement, or the initial action of the Board, providing for
such Business Combination, or (iv) the stockholders of the Company approve
a complete liquidation or dissolution of the Company.
If the Company elects to terminate the Executive's employment under this
agreement for Cause, then Cause must be determined to exist by the Board by the
adoption, by the affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board called and held for that
purpose (after reasonable notice to the Executive and an opportunity for him to
be heard), of one or more resolutions containing a finding that the Executive
was guilty of such conduct and specifying the details relied upon by the Board
for its determination, a copy of which resolutions shall be furnished to the
Executive along with any notice of termination of his employment for Cause,
together with an affidavit sworn to by the secretary of the Company that such
resolutions were in fact adopted by the required vote.
ss.11. Severance Compensation. If the Executive's employment with the
Company is terminated by the Company pursuant to ss.10(b), above, or by the
Executive other than pursuant to ss.10(c), above, then the Executive shall be
entitled only to the compensation, reimbursements, benefits, and other rights
earned by or accrued in favor of the Executive prior to such termination (the
"Accrued Rights"). If the Executive's employment with the Company is terminated
by the Company other than pursuant to ss.10(b) or ss.10(d), above, or by the
Executive pursuant to ss.10(c), above, then: (a) the Company shall pay to the
Executive or his successor in interest, as the case may be, on the date of such
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termination all Accrued Rights; and (b) either, at the election of the
Executive, at his sole discretion, (i) the Company shall pay to the Executive or
his successor in interest, as the case may be, on the date of such termination a
lump sum payment equal to one year's base salary in effect under this agreement
at the time of termination, or (ii) any unvested portion of the Initial Option,
the Second Option, and any other stock options or similar rights hereafter
granted or awarded to the Executive by the Company shall automatically become
fully vested and exercisable. If the Executive's employment is terminated by the
Company pursuant to ss.10(d), above, then the Company shall pay the Executive
the Accrued Rights and continue to pay the Executive an amount equal to his
then-current base salary for the 90-day period following the date of
termination.
ss.12. Noncompetition; Non-Solicitation. During the term of this agreement
and, if the Executive's employment with the Company under this agreement is
terminated by the Company for Cause or by the Executive for any reason other
than Good Reason, then also during the one-year period immediately following
such termination, the Executive shall not: (a) directly or indirectly engage or
participate in any business which competes directly with any business carried on
by the Company or any of its subsidiaries at the time of such termination in the
United States or in any geographical area in which the Company or any of its
subsidiaries is then doing business, or (b) employ, attempt to employ, solicit
for employment by others, or induce or attempt to influence a termination of
employment by, any of the Company's employees, or induce or attempt to induce a
consultant or other independent contractor to sever that person's relationship
with the Company.
ss.13. Confidentiality. The Executive shall not disclose any Confidential
Information (defined below) to any person or use or assist any person to use any
Confidential Information, excepting only disclosures or uses: (a) required by
applicable law, (b) made in connection with the performance of the Executive's
services pursuant to this agreement; or (c) made on a confidential basis to the
Executive's professional advisors.
For purposes of this agreement, "Confidential Information" shall mean all
trade and professional secrets, proprietary data, and other confidential
information of the Company, including without limitation financial information,
information relating to business operations, services, promotional practices,
quality assurance programs, and relationships with suppliers, employees,
customers, independent contractors, or others, and any information which the
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, provided that
Confidential Information shall not include information which: (i) is then or
becomes 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 Executive, or (ii) is obtained by the Executive on a
non-confidential basis from a source other than the Company or any agent or
other representative of the Company and such source had the right to disclose
such Confidential Information to the Executive without violating any legal,
contractual, fiduciary, or other obligation.
ss.14. Remedies. The Executive hereby acknowledges that: (a) the provisions
of ss.ss.12 and 13 of this agreement are fundamental for the protection of the
Company's legitimate business interests, (b) such provisions are reasonable and
appropriate in all respects, and (c) in the event the Executive violates any
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such provisions, the Company could suffer irreparable harm and its remedies at
law would be inadequate. Accordingly, in the event the Executive violates any
such provisions, the Company shall be entitled to seek 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. The rights of the Executive under this agreement shall be
specifically enforceable by him. All rights and remedies of each Party under
this agreement shall be cumulative and in addition to any other rights or
remedies which may be available to that Party from time to time, whether under
any other agreement, at law, or in equity.
ss.15. Notices. Any notice or other communication required or desired to be
given to either Party under this agreement shall be in writing and shall be
deemed given when: (a) delivered personally to that Party, or (b) deposited in
the United States mail, certified, with postage prepaid and return receipt
requested, addressed to that Party at its address specified at the beginning of
this agreement or any other address hereafter designated by that Party in notice
theretofore given to the Party giving notice, provided than any notice given to
the Company shall be addressed to the attention of the chairman of the Board.
ss.16. Governing Law. This agreement has been negotiated and executed in
the State of Ohio. All questions concerning the validity or intention of this
agreement and all questions relating to performance hereunder shall be resolved
under the laws of the State of Ohio.
ss.17. Severability. The intention of the parties to this agreement is to
comply fully with all laws and public policies, and this agreement shall be
construed consistently with all such laws and public policies to the extent
possible. If and to the extent that any court of competent jurisdiction is
unable to so 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.
ss.18. Non-Waiver. No failure by either Party to insist upon strict
compliance with any term of this agreement, to exercise any option, enforce any
right, or seek any remedy upon any default of the other Party shall affect, or
constitute a waiver of, the first 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.
ss.19. Complete Agreement. This agreement (including any exhibits or other
documents attached to or specifically referenced in this agreement, all of which
are hereby incorporated by reference) contains the entire agreement between the
parties and supersedes all prior or contemporaneous discussions, understandings,
or agreements between them relating to the subject matter of this agreement.
ss.20. Captions. The captions of the various sections of this agreement are
not part of the context of this agreement, but are only guides to assist in
locating those sections, and shall be ignored in construing this agreement.
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ss.21. Venue. The parties to this agreement hereby designate the Court of
Common Pleas of Franklin County, Ohio, as the exclusive court of competent
jurisdiction and venue of and for any and all actions or proceedings relating to
this agreement; hereby irrevocably submit and consent to such designation,
jurisdiction, and venue; and hereby waive any objections or defenses relating to
jurisdiction or venue with respect to any action or proceeding initiated in the
Court of Common Pleas of Franklin County, Ohio.
ss.22. Attorneys Fees. In the event of any litigation between the parties
with respect to this agreement, the Party prevailing in such litigation
(determined after a final adjudication and expiration of all rights of appeal)
shall be entitled to recover from the non-prevailing Party all cost and expenses
incurred by the prevailing Party in connection with such litigation, including
without limitation reasonable attorneys fees, which costs and expenses shall be
payable by the nonprevailing Party upon demand.
ss.23. Genders and Numbers. When 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 genders.
ss.24. Counterparts. This agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same document.
ss.25. Successors. Except as otherwise expressly provided in this
agreement, the Executive's rights and obligations under this agreement shall be
personal to him and may not be assigned by him without the prior written consent
of the Company, provided that the foregoing provision shall not apply to or
affect any rights which are expressly assignable by the Executive pursuant to
other provisions of this agreement or which are intended under other provisions
of this agreement to survive the death of the Executive or any other termination
of his employment pursuant to this agreement (including without limitation the
rights provided in ss.11 of this agreement). Subject to the foregoing, this
agreement shall be binding upon, inure to the benefit of, and be enforceable by
and against the respective heirs, personal representatives, successors, and
assigns of the Parties to this agreement.
ONEDENTIST RESOURCES, INC.
By
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Xxxxxxx X. Xxxx, Chairman of the Board
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XXXXXX X. XXXXXXX, III
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EXHIBIT A
ACTIONS REQUIRING BOARD APPROVAL
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(a) A material change in the purposes or character of the Company's
business;
(b) Authorization or issuance of any additional securities of the Company;
(c) Redemption of any securities of the Company;
(d) Any merger, consolidation or other business combination involving the
Company or the reclassification of the Company's securities;
(e) The sale of all or substantially all of the assets of the Company;
(f) Any reorganization or recapitalization of the Company, provided that
this clause shall not be construed to apply to a internal
reorganization of the Company's operations;
(g) An amendment of the Company's Articles of Incorporation or By-laws,
each as in effect as of the date of this agreement.
(h) The liquidation or dissolution of the Company;
(i) Retention or termination of the firm of independent auditors retained
by the Company; and
(j) The incurrence by the Company of indebtedness for borrowed money, or
capital expenditures by the Company, in either case in excess of
$20,000 in any one-year period.
EXHIBIT B
OPTION TERMS
The Initial Option is being granted pursuant to and shall be subject to the
terms and conditions of the Company's 2000 Stock Option Plan adopted August 15,
2000 (the "Plan"), subject to the following:
(a) Exercise Price.
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The exercise price per Share issuable upon exercise of the Initial
Option shall be $2.
(b) Vesting.
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The Initial Option shall be exercisable only with respect to the
Shares which have become vested pursuant to the following schedule:
Date Shares Vested
---- -------------
90 days after Commencement Date 1/3 (150,000 Shares)
180 days after Commencement Date 1/3 (150,000 Shares)
First anniversary of Commencement Date 1/3 (150,000 Shares)
The Shares issued under the Initial Option shall not be subject to any
other vesting or other restriction under section 4(f) of the Plan.
(c) Term; Exercise.
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The Initial Option shall be exercisable at any time (in full) or from
time to time (in part), with respect to the vested portion of the
Initial Option, prior to the fifth anniversary of the Commencement
Date; provided that if the Executive's employment with the Company
terminates for any reason during the five-year period beginning on the
Commencement Date, then the Initial Option shall be exercisable only
for the period specified below:
Date of Termination Option Exercisable
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During first year For one year after termination
During second year For two years after termination
At end of second year or thereafter Until fifth anniversary of
Commencement Date
During the Executive's lifetime, the Initial Option shall be
exercisable only by the Executive or, in the event of his incapacity,
by his legal representative.
(d) Change in Capital Structure.
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In the event the Company changes its outstanding Common Stock by
reason of a stock split, a stock dividend, or any other increase or
reduction of the number of outstanding shares without receiving
consideration in the form of money, services, or property, then the
number of Shares subject to the Initial Option, the number of Shares
vested on each vesting date, and, the exercise price for each Share
subject to the unexercised portion of the Initial Option shall be
proportionately adjusted with the objective that the Executive's
proportionate interest in the Company evidenced by the Initial Option
shall remain the same as before the change without any change in the
total exercise price applicable to the unexercised portion of the
Initial Option.
In the event of any other recapitalization or any merger,
consolidation, or other reorganization of the Company, the Initial
Option shall be modified to accurately reflect the number and kind of
Shares or other securities deliverable, and the exercise price
payable, upon subsequent exercise of the Initial Option, so that the
Initial Option shall thereafter reflect the right to receive, for
payment of the same aggregate purchase price, the type and number of
Shares or other securities as he would have received had he exercised
the Initial Option immediately prior to such event.
(e) Purchase Rights
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The provisions of Section 5 of the Plan shall apply to the Initial
Option on a one-time basis, with respect to the first Repurchase Event
(as defined in the Plan) to occur, whether the Repurchase Event occurs
before or after the Initial Public Offering (as defined in the Plan);
provided that:
(i) The term "Repurchase Period," as used in such Section 5
shall mean the period of seven business days following the
date on which the Secretary or Chairman of the Board of the
Company receives notice from the Executive or his
successor-in-interest, as the case may be (hereinafter,
whether the Executive or his successor, the "Seller"), that
a Repurchase Event has occurred (the "Repurchase Notice");
and
(ii) The "Fair Market Value of the Option Shares," as used in
such Section 5, shall mean: (A) after the Initial Public
Offering, an amount equal to the result obtained when the
number of Shares is multiplied by the last sale price of the
Common Shares (as defined in the Plan) on the last trading
day preceding the date of the Repurchase Notice, as reported
by NASDAQ or any other nationally-recognized stock exchange,
market, or quotation service; and (B) before the Initial
Public Offering, an amount determined as of the day
preceding the date of the Repurchase Notice by (1) agreement
between the Seller and the Company, if they are able to
agree upon a value within 10 days after either of them
requests the other to so agree, or, if not, (2) an appraiser
selected by agreement between the Seller and the Company if
they are able to agree upon an appraiser within 10 days
after either of them requests the other to so agree, or if
not, (3) majority vote of an appraisal board consisting of
three members, one member appointed by the Seller, another
member appointed by the Company, and the third member
appointed by the first two members so appointed, who shall
act as chairman of the appraisal board.
All fees and expenses of the appraisers appointed pursuant to the
foregoing provisions shall be borne 50% by the Company and 50% by the
Seller; provided that if the Fair Market Value of the Option Shares is
determined by a three-member appraisal board under clause (ii)(B)(3),
above, then the Company and the Seller shall each pay the fees and
expenses of the appraiser appointed solely by it, and the other fees
and expenses shall be borne 50% by the Company and 50% by the Seller.
The provisions of Section 6 of the Plan shall not apply to the Initial
Option after the Initial Public Offering.
(f) Amendments
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No amendment to the Plan shall adversely affect any rights of the
Executive with respect to the Initial Option.
(g) Non-Qualified Option
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The Initial Option is an option not intended to qualify as an
incentive option under the Code (as defined in the Plan).
(h) Lock-Up Agreements
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No agreement required under section 14 of the Plan shall be for a
period of longer than 180 days without the Executive's express written
consent.
(i) Legend
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If the Initial Option is exercised prior to registration of the Shares
as contemplated by ss.7 of this agreement, then the certificate
evidencing the Shares shall contain the following legends:
The Shares represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act") and may
not be sold, transferred or otherwise disposed of unless a
registration statement under the Act with respect to such shares
has become effective or unless the Company is in receipt of
evidence satisfactory to the Company to the effect that such
shares may be sold without registration under the Act.
The record holder of this Certificate, by their acceptance
hereof, agrees to these restrictions on transferability.
The Company hereby represents and warrants to the Executive that: (i)
a correct and complete copy of the Plan is attached to this exhibit as
Attachment 1; and (ii) the plan has been approved by the stockholders of
the Company. This agreement shall constitute an option agreement for
purposes of the Plan. However, the Parties may execute a separate option
agreement to further evidence the Initial Option (the "Option Agreement");
provided that any material provisions of the Option Agreement which are not
also contained in this agreement or the Plan (as modified by this
agreement) shall be null and void. In the event of any inconsistency
between the provisions of this agreement and the Plan or the Option
Agreement, the provisions of this agreement shall control.
AMENDMENT TO EMPLOYMENT AGREEMENT
---------------------------------
This is an amendment made effective October 26, 2000, to the Employment
Agreement dated September 12, 2000 (the "Agreement"), between OneDentist
Resources, Inc., a Colorado corporation (the "Company"), and Xxxxxx X. XxXxxxx,
III (the "Executive") (collectively, the "Parties"), who hereby agree as
follows:
ss.1. Definitions. All capitalized terms used in this amendment which are
not otherwise defined herein shall have the respective meanings given those
terms in the Agreement.
ss.2. Services. The reference inss.3 of the Agreement to the Executive
serving as the president of the Company is hereby deleted from the Agreement;
provided that all other offices, responsibilities, and authority of the
Executive set forth in the Agreement shall continue without change.
ss.3. Stock Option. The term "Plan" as used in Exhibit B attached to the
Agreement shall hereafter mean the OneDentist Resources, Inc. 2000 Stock Option
Plan attached to this amendment as Attachment 1; provided that all other
provisions of the Agreement (including without limitation Exhibit B) relating to
the Plan shall continue without change.
ss.4. Interpretation. Except as expressly modified by this amendment, the
Agreement shall continue in full force and effect without change, and the
Company hereby reaffirms as of the date of this amendment all representations,
warranties, and covenants made by it in the Agreement, as modified by this
amendment. In the event of any inconsistency between the provisions of this
amendment and the Agreement, the provisions of this amendment shall control. The
captions of the various sections of this amendment are not part of the context
of this amendment, are only guides to assist in locating those sections, and
shall be ignored in construing this amendment.
ss.5. Successors. This amendment shall be binding upon, inure to the
benefit of, be enforceable by and against the respective heirs, personal
representatives, successors, and assigns of the Parties.
ss.6. Counterparts. This amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same amendment.
ONEDENTIST RESOURCES, INC.
By
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Xxxxxxx X. Xxxx, Chairman of the Board
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XXXXXX X. XXXXXXX, III
