EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of April 1, 1995, is between NATIONAL DENTEX
CORPORATION, a Massachusetts corporation (the "Company"), and DAVID L. BROWN
(the "Executive").
WHEREAS, the Company desires to continue to retain the services of the
Executive, and the Executive desires to continue to be employed by the Company
upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
1. SCOPE OF EMPLOYMENT.
(a) Nature of Services. Executive shall diligently
perform the duties and assume the responsibilities of the position of
Vice President, - Finance, Chief Financial officer and Treasurer of the
Company and such additional executive duties and responsibilities as
shall from time to time be assigned to him by the Board of Directors.
(b) Extent of Services. Executive shall devote
substantially all his working time and attention and his best efforts
to the performance of his duties and responsibilities under this
Agreement. However, Executive may (a) make any passive investments
where he is not obligated or required to, and shall not in fact, devote
any managerial efforts, (b) participate in charitable or community
activities or in trade or professional organizations or (c) subject to
Board of Directors approval (which approval shall not be unreasonably
withheld or withdrawn), hold directorships in public companies, except
only that the Board of Directors shall have the right to limit such
services as director or such participation whenever the Board of
Directors shall believe that the time spent on such activities
infringes in any material respect upon the time required by Executive
for the performance of his duties under this Agreement or is otherwise
incompatible with those duties.
2. COMPENSATION AND BENEFITS.
(a) Base Salary. The Company shall pay the Executive a
base salary (the "Base Salary") at the rate of Seventy-Three Thousand
Dollars ($73,000) per year in accordance with Company's then current
payroll practices. During the Employment Period, as defined in Section
3 below, such salary shall be reduced by the amount of payments, if
any, Executive receives under any short term or long term disability
insurance policies paid for by Company and related to Executive's
employment hereunder. The Executive's salary may be increased from time
to time by the Board of Directors.
(b) Bonus. The Executive shall be entitled to participate
in the Company's Corporate Executive Incentive Compensation Plan (the
"Incentive Compensation Plan") and to receive a bonus thereunder for
each calendar year during the Employment Period in an amount determined
annually in accordance with the provisions of the Incentive
Compensation Plan (the "Bonus").
(c) Benefits. Executive shall be eligible for and
participate, to the same extent (and subject to the same co-payments
or other conditions of participation) in such fringe benefits as are
generally made available to executives of the Company, including
without limitation health, disability and life insurance (collectively,
the "Insurance Benefits") and the Company's stock option and stock
purchase plans.
(d) Expense Reimbursement. The Company will reimburse
Executive for all reasonable and necessary expenses incurred by him in
carrying out his duties under this Agreement. Executive shall promptly
present to the Company itemized accounts of such expenses in such form
as may be required by the Company.
3. EMPLOYMENT PERIOD.
The "Employment Period" shall mean the three (3) year period commencing
on the date hereof and, thereafter, shall continue until terminated by either
party, subject to earlier termination upon occurrence of any of the events set
forth below:
(a) the death of the Executive;
(b) the "Disability" of the Executive as defined in the
Company's long-term disability plan, as in effect from time to time
which termination shall be effective on the date on which the Executive
is entitled to receive long-term disability compensation pursuant to
such plan;
(c) for "Cause," meaning, for purposes hereof,
termination of the Executive's employment by the Company because of
conviction of a felony, commission of an act of dishonesty, breach or
trust or moral turpitude in connection with his employment by the
Company or gross neglect of duties (other than as a result of
Disability or death) which shall continue for thirty (30) days after
the Company gives written notice to the Executive thereof;
(d) by the Executive for "Good Reason," meaning, for
purposes hereof, the voluntary termination by the Executive of his
employment within ninety (90) days after the occurrence of any of the
following events without the Executive's express written consent:
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(i) the assignment to him of any duties materially
inconsistent with his positions, duties, responsibilities,
reporting requirements, and status with the Company
immediately prior to such assignment, or a substantive change
in the Executive's titles or offices as in effect immediately
prior to a such change or any removal of the Executive from or
any failure to reelect him to such positions, except in
connection with the termination of the Executive's employment
by the Company for Cause or Disability.
(ii) the relocation of the Executive's principal
place of business to more than fifty (50) miles from the place
where the Executive was employed at the time of such
relocation; or
(iii) any other material breach by the Company of any
provision of this Agreement, provided that the same shall have
the continued unremedied for a period of thirty (30) days
after the Executive gives notice to the Company requesting
that the Company remedy the same;
(e) by the Company other than by reason of Death, Disability
or Cause; or
(f) by the Executive, other than by reason of Death,
Disability or Good Reason.
4. BENEFITS ON TERMINATION OF EMPLOYMENT.
(a) In the event of termination of the Executive's employment
pursuant to Sections 3(d) [Executive-Good Reason] or 3(e)
[Company-Without Cause] above, the Company shall no longer be obligated
to make any payments of any kind to the Executive under this Agreement
except as follows: (i) the Company will continue to pay the Executive's
then current Base Salary and Bonus for a period of two (2) years from
the date of termination, reduced in the second year to the extent of
compensation received by the Executive from other employment or
self-employment and (ii) the Company will, for a period equal to the
shorter of (x) two (2) years or (y) until the Executive shall commence
other employment or self-employment, continue to provide to the
Executive Insurance Benefits comparable to the insurance provided for
executives of the Company generally during such period, and upon
substantially similar terms and conditions as shall be provided for
executives generally. If under any of the terms of any group policy
maintained by the Company such coverage is not properly obtainable, the
Executive may elect to receive the amount of premiums that the Company
would have paid on his account, or to assume the risk of a denial of
coverage by any such carrier.
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(b) In the event of termination of the Executive's employment
pursuant to Section 3 (a) [Death] above, the Company shall continue to pay to
the Executive's widow, or if she is not then living, to his legal
representatives, his then current Base Salary and Bonus for a period of two (2)
years from the date of termination, and shall continue to maintain health
insurance benefits comparable to the health insurance benefits provided to the
Executive prior to his death, and provided for executives of the Company
generally during such period, and upon substantially similar terms and
conditions as were provided to Executive generally. If under any of the terms of
any group policy maintained by the Company such coverage is not properly
obtainable, the Executive's widow or legal representatives, as applicable, may
elect to receive the amount of premiums that the Company would have paid on his
account, or to assume the risk of a denial of coverage by any such carrier.
(c) In the event of termination of the Executive's employment
pursuant to Sections 3(c) [Company-Cause] or (f) [Executive-Without Cause]
above, the Company shall no longer be obligated to make any payments of any kind
to the Executive under this Agreement, except for any unpaid salary or benefits
accrued and unpaid as of the date of termination.
(d) In the event of termination of the Executive's employment
pursuant to Section 3(b) [Disability] above, the Company will continue to pay
the Executive for a period of two (2) years from the effective date of
termination that amount which is equal to the difference between the amount of
disability compensation payable to the Executive pursuant to the Company's
long-term disability plan and the Executive's then current Base Salary and
Bonus, payable at the same time or times as the Company previously paid Base
Salary and Bonus the Executive.
(e) For purposes of determining the amount of the Bonus payable to
the Executive pursuant to Sections 4(a), (b) and (d) above, the amount of the
Bonus shall be equal to the average of the prior two (2) annual Bonuses payable
to the Executive for and in respect to the fiscal years of the Company ending
prior to or coinciding with the effective date of termination.
(f) Notwithstanding anything to the contrary set forth in this
Agreement, in the event the Executive is party to a Change of Control Severance
Agreement, the determination and payment of any benefits following a Qualified
Termination, as defined therein, shall be set forth in and governed exclusively
by the provisions of such Agreement.
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5. NON-COMPETITION. During the Employment Period and for a period
of two (2) years thereafter, Executive shall not, directly or indirectly, for
his own account or for the account of others, whether as principal or agent or
through the agency of any corporation, partnership, association or other
business entity, compete with the Company by engaging in the dental laboratory
business anywhere in the United States. Nothing contained herein shall prohibit
the Executive from purchasing and holding as a passive investment not more than
5% of any class of the issued and outstanding and publicly traded (on a
recognized national or regional securities exchange or in the over-the-counter
market) capital stock of any corporation.
6. CONFIDENTIAL INFORMATION. Executive will not at any time,
whether during or after the Employment Term, reveal to any person, association
or company any of the Proprietary Information of the Company so far as it has
come or may come to Executive's knowledge, except as may be required in the
ordinary course of performing Executive's duties as an employee of the Company
or except as may be in the public domain through no fault of Executive's, and
Executive shall keep secret all matters entrusted to Executive and shall not use
or attempt to use any such information in any manner which may injure or cause
loss or may be calculated to injure or cause loss whether directly or indirectly
to the Company. For purposes hereof, Proprietary Information includes
information that has been created, discovered or developed, or has otherwise
become known to the Company (including without limitation information created,
discovered or developed, or made known by or to me, during the period of or
arising out of Executive's employment by the Company), and/or in which property
rights have been assigned or otherwise conveyed to the Company, which
information is not generally known by others and has commercial value in the
business in which the Company is engaged, and includes, by way of illustration,
but not limitation, trade secrets, processes, formulae, data and know-how,
improvements, inventions, techniques, marketing plans, strategies, forecasts,
and customer lists.
7. INVENTIONS. If at any time or times during Executive's
employment, Executive shall (either alone or with others) make, conceive,
discover or reduce to practice any invention, modification, discovery, design,
development, improvement, process, formula, data, technique, know-how, secret or
intellectual property right whatsoever or any interest therein (whether or not
patentable or registrable under copyright or similar statutes or subject to
analogous protection) ("Inventions") that relates to any of the products or
services being developed, manufactured or sold by the Company or which may
conveniently be used in relation therewith, or results from tasks assigned
Executive by the Company or results from the use of premises owned, leased or
contracted for by the Company (collectively, "Relate to the Company's Products")
such Inventions and the benefits thereof shall immediately become the
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sole and absolute property of the Company and its assigns, and Executive shall
promptly disclose to the Company each such Invention, and Executive hereby
assigns any rights Executive may have or acquire in the Inventions and benefits
and/or rights resulting therefrom to the Company and its assigns without
compensation and shall communicate, without cost or delay, and without
publishing the same, all available information relating thereto (with all
necessary plans and models) to the Company.
8. REMEDIES. This Agreement is a personal employment contract and
the rights and interests of the Executive hereunder may not be sold,
transferred, assigned, pledged or hypothecated. The Executive acknowledges that
a remedy at law for any breach by him of the provisions of Sections 5, 6 or 7
hereof will be inadequate, and the Executive hereby agrees that the Company
shall be entitled to injunctive relief in case of any such breach, in addition
to recovery of its damages by reason of such breach.
9. MISCELLANEOUS.
(a) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns and upon the
Executive and his legal representatives.
(b) This Agreement may not be changed orally but only by
a written instrument signed by the parties hereto.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(d) The waiver of any breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any
other breach of the same or any other provision or condition.
(e) If any provision of this Agreement is found to be
unenforceable or invalid, such provision shall be severable from this
Agreement and shall not affect the enforceability or validity of any
other provision contained in this Agreement.
(f) Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing and
delivered by hand or sent by registered mail, return receipt requested,
or by recognized overnight express courier, postage prepaid, and if to
the Executive, addressed to him at the address set forth below, and if
to the Company, addressed to it at 111 Speen Street, Framingham,
Massachusetts 01701, Attention: President, with a copy to Posternak,
Blankstein & Lund, 100 Charles River Plaza, Boston, Massachusetts
02114, Attention: Donald H. Siegel, P.C. or such other address as shall
have been specified in writing by either party to the
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other, and any such notice or communication shall be deemed to have
been given as of the date so mailed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NATIONAL DENTEX CORPORATION
By: William Mullahy
EXECUTIVE:
/s/ David L. Brown.
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David L. Brown.
Address: 70 Everett St,
Natick, MA 01760
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