UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
January 6, 2010 (December 31, 2009)
____________
DIALYSIS CORPORATION OF AMERICA
(Exact name of registrant as specified in its charter)
Florida 0-8527 59-1757642
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1302 Concourse Drive, Suite 204, Linthicum, MD 21090
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (410) 694-0500
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departures of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
On December 31, 2009, the Company entered into an employment agreement
with Thomas K. Langbein, the Chairman of the Board of Dialysis Corporation of
America, the Company, effective January 1, 2010, which agreement includes his
new executive position as Chief of Strategic Alliances and Investor
Relations. In general, as Chairman of the Board, Mr. Langbein is
responsible for leading the board, presiding at meetings, establishing the
processes the board uses in managing its responsibilities, negotiating the
compensation of the President and Chief Executive Officer, subject to the
recommendations of the Compensation Committee and the concurrence of the
board, among other customary functions of a Chairman of the Board. His
position as Chief of Strategic Alliances and Investor Relations involves
developing, evaluating and negotiating potential mergers, acquisitions and
similar transactions, including the financing of any such transaction, as
well as developing and coordinating investor relations, primarily with
institutional and other significant investors. Also as a part of that
executive position Mr. Langbein will be involved in the Company's development
program in conjunction with the President and Chief Executive Officer.
Mr. Langbein has been affiliated with the Company since its inception,
served as its Chairman of the Board and President from 1980 until 1986, when
he relinquished the position of President and was appointed Chief Executive
Officer, the latter position being relinquished by him in 2003. Mr. Langbein
also served as Chairman of the Board, President and CEO of Medicore, Inc.,
the Company's former parent until the merger of Medicore with the Company in
September, 2005. Since that merger, Mr. Langbein continued in the Chairman
position and earned a stipend, which amounted to $200,000 for 2009. Mr.
Langbein also has experience and expertise in corporate finance.
Mr. Langbein's employment agreement, approved by the Compensation
Committee and the Board, is for a term of five years with an initial annual
base salary of $350,000. This base salary will replace the stipend that Mr.
Langbein was previously receiving in connection with his position of Chairman
of the Board, and reflects his efforts in connection with strategic planning,
corporate finance, credit and financing arrangements, and business
combinations. His base salary is subject to a minimum annual increase of
$10,000, as well as any bonuses, to the extent so determined by the Company's
Compensation Committee and the board. Under the agreement Mr. Langbein is
eligible to participate in medical, disability, life insurance, and such
other benefit programs available to executive officers. During the term of
the agreement, the Company shall reimburse Mr. Langbein for reasonable out-
of-pocket costs and expenses incurred in connection with the performance of
his duties and responsibilities to the Company.
In accordance with the other employment agreements the Company has with
its executives, early termination may occur upon death, disability, or by the
Company without cause, or by Mr. Langbein for good reason (as those terms are
defined in the employment agreement), and upon any such occurrence Mr.
Langbein will be entitled to one year payment of his then base salary and
benefits. In the event of a change in control (as defined in the employment
agreement), the lump sum payment shall be two years' base salary as of the
date of the change in control. The Company's obligation for any payments
upon termination by the Company without cause or by Mr. Langbein for good
reason is conditional upon Mr. Langbein providing the Company with a release
from all claims related to the employment. The only compensation obligation
upon the Company for termination of Mr. Langbein for cause is a lump sum
payment for salary and annual bonus, if any, to the date of termination and
any rights with respect to benefits that were otherwise non-forfeitable.
The employment agreement contains restrictions on Mr. Langbein's
ability, during the term and for a one (1) year subsequent period, to use or
disclose confidential information or trade secrets of the
Company, to engage in restricted activity (as defined in the agreement),
which generally relates to providing services that are competitive with the
Company, and to solicit or induce patients, management personnel, or any
employee to terminate their relationship with the Company.
The foregoing description of Mr. Langbein's employment agreement does
not purport to be complete, and is qualified in its entirety by reference to
the complete text of the employment agreement, a copy of which is attached as
Exhibit (10)(i) to this Current Report on Form 8-K.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
The board of directors amended certain provisions of the Company's
Bylaws; primarily ministerial changes to clarify and update the information,
including Sections 1.1 and 3.1 relating to the Company's principal office and
place of meeting, Section 4.2 adding the requirements of the federal
securities law, FINRA, Nasdaq and other quasi-governmental and self-
regulatory organizations relating to the qualifications of directors, Section
4.5 by adding the Chairman of the Board who may call a special meeting,
Section 4.8 adding to compensation the recommendations of the Compensation
Committee, and adding recommendations of the Nominating Committee with
respect to Section 4.9 concerning director nominations.
As to officers of the Company, the By-laws were modified to:
(i) add titles generally to officers (Section 6.1) including a Chief
Financial Officer, a Chief Operating Officer, a Chief Accounting Officer, a
Controller, and other senior management and executive officers as may be
appointed by the board;
(ii) add to Section 6.4 regarding officer's salaries (similar to
compensation to directors discussed above) and awards, upon the
recommendation of the Compensation Committee as may be modified by the board;
(iii) modify Section 7.1 to eliminate the concept that the Chief
Executive Officer shall be the Chairman of the Board, which roles and
functions were separated for best practices under corporate governance;
(iv) add to Section 7.1 to provide that the CEO is responsible (under
his supervision) for the design, implementation and assessment of internal
control over financial reporting and disclosure controls and procedures, and
the certification of the same (as required under the federal securities
laws); similar concepts were also included in the description of Chief
Financial Officer (Section 7.4);
(v) renumber all the subsequent Articles by virtue of including all the
functions of the different officers in Article VII (rather than in separate
Articles); and
(vi) provide a new Article IX to separately deal with the position of
Chairman of the Board.
The amendments to the Bylaws became effective on December 31, 2009. The
above description of the amendments to the Bylaws is in summary form and for
a detailed understanding of the amendments, reference is made to the complete
amended Bylaws, attached to this Current Report on Form 8-K as Exhibit 3(ii).
2
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
(3)(ii) Bylaws, as amended December 31, 2009
(10) Material Contracts
(i) Employment Agreement effective January 1, 2010, between the
Company and Thomas K. Langbein
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DIALYSIS CORPORATION OF AMERICA
/s/ Stephen W. Everett
By______________________________
STEPHEN W. EVERETT
President and Chief Executive Officer
Dated: January 6, 2010
3
EXHIBIT INDEX
Exhibit
Number
-------
(3)(ii) Bylaws, as amended December 31, 2009
(10) Material Contracts
(i) Employment Agreement effective January 1, 2010, between the
Company and Thomas K. Langbein