EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into on May 15,
2003 (the "Effective Date"), by and between James M. Usdan (the "Executive") and
Castle Dental Centers, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive as President and
Chief Executive Officer, and the Executive wishes to be so employed by the
Company, all upon the terms and conditions hereinafter set forth.
WHEREAS, this Employment Agreement replaces in its entirety the
Employment Agreement by and between the Executive and the Company dated as of
July 19, 2002 (the "Original Agreement").
NOW THEREFORE, in consideration of the promises and mutual covenants and
obligations herein set forth and for other good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto hereby agree as follows, intending to be legally bound:
1. EMPLOYMENT AND TERM. The Company hereby employs the Executive to
serve as President and Chief Executive Officer. The term of this Agreement shall
begin on the Effective Date and shall terminate sixty (60) months from the
Effective Date, unless earlier terminated by either party hereto in accordance
with the provisions of Section 5 hereof. During the term of this Agreement, the
terms of employment shall be as set forth herein unless modified by the
Executive and the Company in accordance with the provisions of Section 11
hereof. The Executive hereby agrees to accept such employment and to perform the
services specified herein, all upon the terms and conditions hereinafter set
forth.
2. POSITION AND RESPONSIBILITIES. The Executive shall report to, and be
subject to the general direction and control of, the Board of Directors of the
Company. The Executive will be elected as a member of the Board of Directors of
the Company during the term of this Agreement so long as he is the Chief
Executive Officer of the Company. The Executive shall resign from the Board of
Directors of the Company and each board of directors of which he is a member of
each subsidiary of the Company at any time that his position as Chief Executive
Officer of the Company terminates. The Executive shall have other obligations,
duties, authority and power to do all acts and things as are customarily done by
a person holding the same or equivalent position or performing duties similar to
those to be performed by executives in corporations of similar size to the
Company and shall perform such managerial duties and responsibilities for the
Company which are not inconsistent with the Executive's position as may
reasonably be assigned to him by the Board of Directors of the Company.
3. EXTENT OF SERVICE. The Executive shall devote his full business time
and attention to the business of the Company. During the term of this Agreement,
however, it shall not be a violation of this Agreement for the Executive to (a)
serve on any corporate board or committee thereof with the approval of the Board
of Directors, (b) serve on the board of directors of MetroOne
Telecommunications, (c) serve on any academic, university, civic or charitable
board of directors, (d) deliver lectures or make teaching or speaking
engagements, (e) testify as a witness in litigation involving a former employer,
or (f) manage personal investments, so long as such activities do not, taken
together, materially interfere with the performance of the Executive's
responsibilities under this Agreement.
4. COMPENSATION.
(a) Salary. In consideration of the services to be rendered
by the Executive to the Company, the Company will pay the Executive a salary
("Salary") of $31,250 per month during the term of this Agreement. Such Salary
will be payable in accordance with the Company's customary payroll practices and
shall be subject to all applicable federal and state withholding, payroll and
other taxes. In addition, the amount of the Executive's Salary may be increased
from time to time during the term of this Agreement, by, and at the sole
discretion of, the Compensation Committee of the Company's Board of Directors
(the "Compensation Committee"), which shall review the Executive's Salary no
less regularly than annually.
(b) Bonus. The Executive shall be eligible for an annual
bonus. Any bonus paid to the Executive shall be based on performance, shall be
payable at the sole discretion of the Compensation Committee based upon the
attainment of certain performance objectives determined by the Compensation
Committee, and shall be subject to all applicable federal and state withholding,
payroll and other taxes. The Compensation Committee shall provide the Executive
with the performance objectives for each calendar year no later than January 1
of such calendar year; provided that for the year 2003, the Company shall use
its reasonable best efforts to provide the Executive with the performance
objectives for such year no later than June 30, 2003.
(c) Expenses. During the term of this Agreement, the Company
shall pay or reimburse the Executive for all reasonable out-of-pocket expenses
for travel, meals, hotel accommodations, entertainment and the like incurred by
him in connection with the business of the Company, to the extent such expenses
are consistent with Company policy at the time incurred, upon submission by him
of an appropriate statement documenting such expenses as required by the
Internal Revenue Code of 1986, as amended (the "Code").
(d) Vacation. The Executive shall be entitled to 25 days of
paid vacation for each calendar year during the term of this Agreement, earned
on an accrual basis. Vacation shall start to accrue on the first day of each
calendar year. The Company shall pay the Executive for any accrued but unused
portion of vacation and any such unused portion of vacation shall not be carried
forward to the next year.
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(e) Benefits. During the term of this Agreement, the
Executive shall be entitled to participate in and to receive all rights and
benefits under any bonus, stock option, equity incentive, pension, retirement,
life, disability, medical and dental, health and accident and profit sharing or
deferred compensation plans and such other plan or plans as may be implemented
by the Company during the term of this Agreement. The Company shall provide the
Executive with life insurance in an amount equal to the amount, if any, to which
the Executive is entitled pursuant to the Company policy, if any, for its
executive employees. The Executive shall also be entitled to participate in and
to receive all rights and benefits under any plan or program adopted by the
Company for any other or group of other executive employees of the Company,
including without limitation, the rights and benefits under the directors' and
officers' liability insurance currently in place under the Company's insurance
program for the directors and officers of the Company, and any indemnification
agreements entered into by the Company with its officers and directors providing
them with indemnification from the Company for claims arising out of their
service as officers and directors of the Company.
(f) Stock Options. The Executive shall be eligible to be
granted options to purchase common stock of the Company at the sole discretion
of the Compensation Committee. Notwithstanding anything to the contrary herein
or in any other agreement (including any agreement, whether entered into prior
or after the date hereof, pursuant to which the Executive was granted or is
granted options to purchase common stock of the Company), upon any termination
of the Executive's employment with the Company by the Company without Cause or
by Executive if it's a Good Reason Termination, Executive shall have 45 days to
exercise any such options which are then exercisable, and all other options not
exercised within such period shall terminate and be of no further force or
effect.
5. TERMINATION.
(a) Termination by Company; Discharge for Cause. The Company
shall be entitled to terminate this Agreement and the Executive's employment
with the Company at any time and for whatever reason, or at any time for "Cause"
(as defined below), by written notice to the Executive. Termination of the
Executive's employment by the Company shall constitute a termination for "Cause"
if such termination is for one or more of the following reasons: (i) the willful
failure or refusal of the Executive to render services to the Company in
accordance with his obligations under this Agreement, including, without
limitation, the failure or refusal of the Executive to comply with the work
rules, policies, procedures, and directives as established by the Board of
Directors and consistent with this Agreement if such failure or refusal
continues for a period of not less than 15 days after written notice outlining
the situation is given by the Company to the Executive; (ii) a determination by
the Board of Directors, made after reasonable inquiry (including an opportunity
for the Executive to be heard), that the Executive has committed an act of fraud
or embezzlement; (iii) a determination by the Board of Directors, made after
reasonable inquiry (including an opportunity for the Executive to be heard),
that the Executive has committed any other action with the intent to injure the
Company; (iv) a determination by the Board of Directors, made after reasonable
inquiry
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(including an opportunity for the Executive to be heard), that the Executive has
committed a felony or a crime involving moral turpitude; (v) a determination by
the Board of Directors, made after reasonable inquiry (including an opportunity
for the Executive to be heard), that the Executive has misappropriated the
property of the Company; (vi) a determination by the Board of Directors, made
after reasonably inquiry (including an opportunity for the Executive to be
heard), that the Executive has engaged in personal misconduct which has
materially injured the Company, including, without limitation, engaging in
harassment or discrimination in violation of the Company's policies; or (vii)
the Executive having willfully violated any law or regulation relating to the
business of the Company which results in material injury to the Company. In the
event of a termination of this Agreement by the Company for Cause pursuant to
this Section 5(a), the Executive shall be entitled to no further compensation or
severance or other termination benefits except for any unpaid Salary and
benefits accrued through the date of termination and any unreimbursed expenses
incurred by the Executive in the performance of his duties hereunder through the
date of termination. A termination of this Agreement by the Company without
Cause pursuant to this Section 5(a) shall entitle the Executive to the Severance
Payment and other benefits specified in Section 5(g) hereof.
(b) Death. If the Executive dies during the term of this
Agreement and while in the employ of the Company, this Agreement shall
automatically terminate and the Company shall have no further obligation to the
Executive or his estate except that the Company shall pay to the Executive's
estate that portion of his Salary and benefits accrued through the date of death
and any unreimbursed expenses incurred by the Executive in the performance of
his duties hereunder through the date of termination. All such payments to the
Executive's estate shall be made in the same manner and at the same time as the
Executive's Salary.
(c) Disability. If during the term of this Agreement, the
Executive shall be prevented from performing his duties hereunder for either (i)
a period of 90 days or (ii) 150 days in any 12-month period by reason of
disability, then the Company, on 30 days prior written notice to the Executive,
may terminate this Agreement. For purposes of this Agreement, the Executive
shall be deemed to have become disabled when the Board of Directors of the
Company, upon verification by a physician designated by the Company, shall have
determined that the Executive has become physically or mentally unable
(excluding infrequent and temporary absences due to ordinary illness) to perform
the essential functions of his duties under this Agreement with or without
reasonable accommodation. In the event of a termination pursuant to this
paragraph (c), the Company shall be relieved of all its obligations under this
Agreement, except that the Company shall pay to the Executive or his estate in
the event of his subsequent death, that portion of the Executive's Salary and
benefits accrued through the date of such termination and any unreimbursed
expenses incurred by the Executive in the performance of his duties hereunder
through the date of termination. All such payments to the Executive or his
estate shall be made in the same manner and at the same time as his Salary and
would have been paid to him had he not become disabled.
(d) Termination Upon Good Reason Event. The Executive shall
be entitled to terminate this Agreement and his employment with the Company by
providing the Company with written notice of the Executive's intent to effect
such termination at any time within 30 days following the occurrence of a Good
Reason Event; provided, however, that if the Company eliminates the reason for
such termination to the reasonable satisfaction of the Executive within
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the 30-day period following the Company's receipt of such notice, the Executive
shall not be entitled to terminate this Agreement and his employment with the
Company pursuant to this subsection (d). If the Company does not so eliminate
the reason for such termination and the Executive then terminates this Agreement
and his employment with the Company pursuant to this subsection (d), such
termination shall be a "Good Reason Termination." A "Good Reason Event" shall
have occurred if:
(i) the Executive is assigned any
responsibilities or duties materially inconsistent with his position, duties,
responsibilities and status with the Company as in effect at the date of this
Agreement or as may be assigned to the Executive pursuant to Section 2 hereof;
(ii) the Salary payable to the Executive pursuant
to Section 4(a) hereof in any year is reduced by an amount in excess of fifteen
percent (15%) of the previous year's Salary, unless the Executive has otherwise
agreed to such reduction;
(iii) there is (1) a failure by the Company or any
successor to the Company or its assets to continue to provide to the Executive
any material benefit, bonus, profit sharing, incentive, remuneration or
compensation plan, stock ownership or purchase plan, stock option plan, life
insurance, disability plan, pension plan or retirement plan to which the
Executive was entitled, or in which the Executive was entitled to participate
in, as of the effectiveness of this Agreement, and the Company fails to provide
a substitute therefor which is substantially similar to the discontinued
material benefit or plan, or (2) the taking by the Company of any action that
materially and adversely affects the Executive's participation in or materially
reduces his rights or benefits under or pursuant to any such plan, but excluding
any such action that is required by law;
(iv) without Executive's consent, the Company
requires the executive to relocate to any city or community other than one
within a 50 mile radius of the greater metropolitan area of Austin, Texas or
Houston, Texas, except for required travel on the Company's business to an
extent substantially consistent with the Executive's business obligations under
this Agreement; or
(v) there is any material breach by the Company
of any provision of this Agreement.
Upon a Good Reason Termination, the Executive shall be entitled to the payments
and other benefits specified in Section 5(g) hereof.
(e) Voluntary Termination. Notwithstanding anything to the
contrary herein, the Executive shall be entitled to voluntarily terminate this
Agreement and his employment with the Company at his pleasure upon 30 days
written notice to such effect. In such event, the Executive shall not be
entitled to any further compensation or severance or other termination benefits
other than any unpaid Salary and benefits accrued through the last day worked
and any unreimbursed expenses incurred by the Executive in the performance of
his duties hereunder through the date of termination. At the Company's option,
the Company may pay to the Executive the salary and
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benefits that the Executive would have received during such 30 day period in
lieu of requiring the Executive to remain in the employment of the Company for
such 30 day period.
(f) Natural Expiration of this Agreement. In the event the
Executive's employment terminates in conjunction with the natural expiration of
the term of this Agreement (and the Company provided the Executive with written
notice of its intent not to renew this Agreement at least 9 months prior to such
natural expiration), the Executive shall not be entitled to any further
compensation or severance or other termination benefits other than any unpaid
Salary and benefits accrued through the last day worked and any unreimbursed
expenses incurred by the Executive in the performance of his duties hereunder
through the date of termination.
(g) Termination Benefits Upon Company Termination Without
Cause or Termination for Good Reason. In the event that (i) the Company
terminates this Agreement and the Executive's employment with the Company for
any reason other than (w) pursuant to the natural expiration of the term of this
Agreement (if the Company provided the Executive with written notice of its
intent not to renew this Agreement at least 9 months prior to such natural
expiration), (x) Cause, (y) death or (z) disability, or (ii) a Good Reason
Termination occurs, then the Company shall pay the Executive (A) an amount (the
"Severance Payment") equal to one year's Salary, payable over a 12-month period
after such termination (the "Initial Noncompete Period"), in accordance with the
Company's customary payroll practices, subject to all applicable federal and
state withholding, payroll and other taxes; provided that if the Company makes a
Noncompete Election (as defined in Section 6(b)), the Company shall pay the
Executive an amount (also part of the "Severance Payment") equal to one year's
Salary, payable over the 12-month period immediately following the Initial
Noncompete Period, in accordance with the Company's customary payroll practices,
subject to all applicable federal and state withholding, payroll and other
taxes, and (B) his pro rata portion (based on the number of days in the relevant
year on which the Executive was employed by the Company) of the bonus, if any,
that Executive would have been entitled to hereunder had Executive remained
employed by the Company for the entire applicable year, such portion to be
payable within 10 days after the Company files its Form 10-K for such year with
the SEC. If Executive obtains any employment or consulting work during the
period during which any portion of the Severance Payment is being paid, the
severance described herein shall be reduced by any amounts received pursuant
thereto during the remainder of the severance period. In addition, following any
such termination, the Executive shall be entitled to the following benefits
(collectively, the "Additional Benefits");
(i) continued coverage, at the Company's cost,
under the Company's group health plan for the applicable coverage period under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA")
but only if Executive elects such COBRA continuation in accordance with the time
limits and in the applicable COBRA regulations (provided that if the Executive
obtains any employment or consulting work during the period during which the
COBRA benefits are being paid by the Company, such benefits shall be reduced to
the extent the Executive is eligible to receive similar benefits pursuant to
such new employment or consulting work); and
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(ii) an amount equal to the sum of (A) any
unreimbursed expenses incurred by the Executive in the performance of his duties
hereunder through the date of termination, plus (B) any accrued and unused
vacation time or other unpaid benefits as of the date of termination.
The parties agree that, because there can be no exact measure of
the damages which would occur to the Executive as a result of termination of
employment, such payments contemplated in this Section 5(g) shall be deemed to
constitute liquidated damages and not a penalty. The Severance Payment and the
Additional Benefits shall be paid in lieu of any amounts payable by reason of
any severance package or agreement offered or in effect by the Company; provided
that the Executive shall be entitled to such payments only (x) if the Executive
executes a termination agreement releasing all legally waivable claims arising
from the Executive's employment, and (y) so long as the Executive complies with
his obligations under Section 6 below.
(h) Survival. Notwithstanding the termination of this
Agreement under this Section 5, all provisions of this Agreement hereof which by
their terms are to be performed following the termination hereof shall survive
such termination and be continuing obligations.
6. COVENANTS OF THE EXECUTIVE.
(a) Confidential Information. The Executive shall not,
without the prior written consent of the Company (except as may be required in
connection with any judicial or administrative proceeding or inquiry), disclose
to any person, other than an officer or director of the Company or a person to
whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of his duties as an executive officer of the
Company, any confidential information obtained by him, before or after the date
hereof, while in the employ of the Company with respect to its business or
assets, including, but not limited to, confidential information relating to the
technology, properties, accounts, books, records, suppliers, trade secrets and
contracts of the Company (collectively, the "Confidential Information");
provided, however, that Confidential Information shall not include any
information known or available to the public (other than as a result of
unauthorized disclosure by the Executive).
(b) Covenant Not to Compete, Not to Solicit. The Executive
acknowledges that he has been and will continue to be provided with Confidential
Information in the course of his employment with the Company. The Executive
agrees that in order to protect the Company's Confidential Information, it is
necessary to enter into the following restrictive covenants, which are ancillary
to the enforceable promises between the Company and the Executive in Section
6(a) of this Agreement. The Executive covenants that the Executive shall, during
the term of this Agreement and for a period of one year following the
termination of the Executive's employment hereunder for whatever reason
(provided that such period shall be extended to two years if the Company gives
the Executive written notice of its election (the "Noncompete Election") to
extend such period to two years, such notice to be sent to Executive at least 90
days prior to the
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end of such one year period following the termination of the Executive's
employment), observe the following separate and independent covenants:
(i) Neither the Executive nor any Affiliate (as
defined in subsection (c) below) will, without the prior written consent of the
Company, within the Area (as defined in subsection (c) below), either directly
or indirectly, (1) become financially interested in a Competing Enterprise (as
defined in subsection (c) below) (other than as a holder of less than five
percent (5%) of the outstanding voting securities of any entity whose voting
securities are listed on a national securities exchange or quoted by the NASDAQ
Stock Market, including the OTC Bulletin Board or any comparable system), or (2)
engage in or be employed by any Competing Enterprise as a consultant, officer,
director, or executive or managerial employee; provided that the restrictions
contained in this clause (i) shall terminate if the Executive is entitled to the
Severance Payment pursuant to Section 5(g) above and the Company fails to make
the payments constituting the Severance Payment when due, provided that the
Company shall have 10 days from the date any such payment was due to cure any
failure to make such payment.
(ii) Neither the Executive nor any Affiliate
will, without the prior written consent of the Company, either directly or
indirectly, on Executive's own behalf or in the service or on behalf of others,
solicit, divert or appropriate, or attempt to solicit, divert, or appropriate,
to any Competing Enterprise, any person or entity whose account with the Company
was serviced by or under the Executive's direction or supervision during the
term of this Agreement.
(iii) Neither the Executive nor any Affiliate
will, without the Company's prior written consent, either directly or
indirectly, on the Executive's own behalf or in the service or on behalf of
others, solicit, divert, or hire away, or attempt to solicit, divert, or hire
away, to any Competing Enterprise, any person employed by the Company, any of
its subsidiaries or any dental practices affiliated with the Company or any of
its subsidiaries through a long-term services agreement (collectively, the
"Affected Parties"), whether or not such employee is a full-time or a temporary
employee of any such Affected Party and whether or not such employment is
pursuant to written agreement and whether or not such employment is at will.
(c) The following terms used in Section 6(b) shall have the
definitions set forth below:
"Affiliate" means any person or entity directly or indirectly
controlling, controlled by, or under common control with the Executive. As used
herein, the word "control" means the power to direct the management and affairs
of a person.
"Area" means (i) any "Metropolitan Statistical Area" or "Primary
Metropolitan Statistical Area" (as each such term is defined by the Federal
Office of Management and Budget) in which the Company owns a dental center or
has a dental center under development and (ii) within 10 miles of any dental
center owned or under development by the Company that is not located in a
Metropolitan Statistical Area or a Primary Metropolitan Statistical Area.
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"Competing Enterprise" means any person or any business
organization of whatever form, engaged directly or indirectly within the Area in
the business of the Company or any of it subsidiaries or any other related
business conducted by the Company or any of its subsidiaries as of the time of
the termination of the Executive's employment by the Company.
(d) The parties hereto agree that the Executive's breach of
any covenant contained in this Section 6 could result in substantial damage to
the Company which would be impossible to ascertain. By reason of that fact, the
Executive agrees that, in the event of such breach, the Company shall have the
right to enforce such provisions by injunctive or other relief in equity.
7. CONSENT AND WAIVER BY THIRD PARTIES. The Executive hereby
represents and warrants that he has obtained all necessary waivers and/or
consents from third parties as to enable him to accept employment with the
Company on the terms and conditions set forth herein and to execute and perform
this Agreement without being in conflict with any other agreement, obligations
or understanding with any such third party.
8. NOTICES. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be delivered personally or
mailed, certified or registered mail, return receipt requested, postage prepaid
or delivered by commercial overnight courier service, charges prepaid to the
following addresses, or such other addresses as shall be given by notice
delivered hereunder, and shall be deemed to have been given upon delivery, if
delivered personally, three business days after mailing, if mailed, or one
business day after delivery to the overnight courier service, if delivered by
overnight courier service:
If to the Executive: James M. Usdan
P.O. Box 540876
Houston, Texas 77254-0876
If to the Company: Castle Dental Centers, Inc.
3701 Kirby, Suite 550
Houston, Texas 77098
Attn: Chairman, Compensation Committee
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
9. Remedies. Nothing contained in this Agreement shall be construed as
prohibiting any party from pursuing any other remedies available to it for any
breach or threatened breach, including, without limitation, the recovery of
money damages. These covenants and disclosures shall each be construed as
independent of any other provisions in this Agreement, and the existence of any
claim or cause of action by the Executive against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants and agreements.
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10. Waivers and Modifications. This Agreement may be modified, and the
rights and remedies of any provision hereof may be waived, only in accordance
with this Section 10. No modification or waiver by the Company shall be
effective without the consent of at least a majority of the Compensation
Committee of the Board of Directors then in office at the time of such
modification or waiver. No waiver by either party of any breach by the other or
any provision hereof shall be deemed to be a waiver of any later or other breach
thereof or as a waiver of any other provision of this Agreement. This Agreement
supersedes all prior agreements between the Executive and the Company and sets
forth all the terms of the understandings between the parties with reference to
the subject matter set forth herein and may not be waived, changed, discharged
or terminated orally or by any course of dealing between the parties, but only
by an instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought.
11. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Texas and shall be binding upon and enforceable against
the Executive's heirs and legal representatives.
12. Severability. In case of one or more of the provisions contained in
this Agreement for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been a part of this Agreement. Notwithstanding the foregoing, however, if for
any reason any provision containing restrictions set forth herein is held to
cover an area or to be for a length of time which is unreasonable, or in any
other way is construed to be too broad or to any extent invalid, any such
provision shall not be determined to be null, void and of no effect, but to the
extent the same is or would be valid or enforceable under applicable law, any
court of competent jurisdiction shall construe and interpret or reform this
Agreement to provide for a restriction having the maximum enforceable area, time
period and other provisions (not greater than those contained herein) as shall
be valid and enforceable under applicable law.
13. Assignment; Representations. This Agreement shall be binding upon
and inure to the benefit of the Company, its successors, legal representatives
and assigns and upon the Executive, his heirs, executors, administrators, and
representatives. Any reference to the Company herein shall mean the Company as
well as any successors thereto. The Company represents that it has all corporate
power and authority necessary to enter into this Agreement and perform its
obligations hereunder. This Agreement has been duly authorized, executed and
delivered by the Company.
14. Termination. Upon execution of this Agreement, the Original
Agreement shall be deemed terminated and shall have no further force or effect.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Employment Agreement as of the date and year first above written.
COMPANY:
CASTLE DENTAL CENTERS, INC.
By:
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Name:
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Title:
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EXECUTIVE:
By:
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James M. Usdan