SCHICK TECHNOLOGIES, INC. EMPLOYMENT AGREEMENT
EXHIBIT 2.3
▇▇▇▇▇▇ TECHNOLOGIES, INC.
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made as of June 14, 2006, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Employee”), ▇▇▇▇▇▇ Technologies, Inc., a Delaware corporation (“▇▇▇▇▇▇ Delaware” or the “Company”), and ▇▇▇▇▇▇ Technologies, Inc., a New York corporation (“▇▇▇▇▇▇ New York”).
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇ Delaware, ▇▇▇▇▇▇ New York and Employee previously entered into an Employment Agreement dated as of June 15, 2004 (the “June 2004 Agreement”) pursuant to which ▇▇▇▇▇▇ Delaware employed Employee as Executive Vice-President of Sales and Marketing, and
WHEREAS, ▇▇▇▇▇▇ Delaware, Sirona Holdings Luxco S.C.A., a société en commandite par actions, organized under the laws of the Grand Duchy of Luxembourg (“Luxco”), and ▇▇▇▇▇ ▇▇-▇▇▇ ▇▇▇▇, a corporation organized under the laws of the Federal Republic of Germany and to be renamed Sirona Holding GmbH (“Sirona”), entered into an Exchange Agreement on September 25, 2005 (as amended, the “Exchange Agreement”) which shall result in a combination of ▇▇▇▇▇▇ and Sirona.
WHEREAS, the parties wish to terminate the June 2004 Agreement and enter into this Agreement as specified herein effective as of the date of the Closing (as defined in the Exchange Agreement) to set forth the terms and conditions of Employee’s continued employment with ▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York.
NOW THEREFORE, in consideration of the premises, of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
I Employment
▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York hereby employ Employee, and Employee hereby agrees to be employed, as Vice President of ▇▇▇▇▇▇ Delaware (“VP”) and President of ▇▇▇▇▇▇ New York (“▇▇▇▇▇▇ President”), effective as of the Closing Date (the “Effective Date”), upon the terms and conditions herein set forth. Concurrent with the effectiveness of this Agreement, the June 2004 Agreement shall expire by mutual agreement of the parties and shall have no further force and effect.
II Duties and Responsibilities
As VP and ▇▇▇▇▇▇ President, Employee shall have the following duties, responsibilities and powers: primary responsibility for ▇▇▇▇▇▇ New York’s day-to-day operations, to include sales, marketing, manufacturing, MIS, quality assurance and human resources, and such other responsibilities and duties that may be assigned to him from time to time. In his capacity as VP and ▇▇▇▇▇▇ President, Employee shall report directly to the individual who is Executive Vice-President of ▇▇▇▇▇▇ Delaware and Chief Operating Officer of the Company’s United States Operations, or to his successor(s).
Employee agrees to devote his reasonable best diligence and his full time to the performance of his duties hereunder. Employee’s initial principal place of employment shall be at the Company’s U.S. headquarters, currently located in Long Island City, New York; Employee shall travel as reasonably required in the performance of his duties hereunder.
III Term
The term of Employee’s employment hereunder shall commence on the date of the Closing and continue until December 15, 2007 (the “Initial Term of Employment”). This Agreement and Employee’s employment thereunder shall automatically renew thereafter for successive periods of one (1) year, unless the Company or Employee give written notice of termination to the other at least 90 days before the end of the then-current term.
IV Compensation & Benefits
The Company shall pay Employee, as full consideration for the services to be rendered hereunder, compensation consisting of the following:
(1) (i) From the Effective Date of this Agreement through December 15, 2007, an annual base salary of Two Hundred Seventy-Five thousand dollars ($ 275,000);
(ii) Employee’s base salary shall be payable bi-monthly or in accordance with any other payment schedule as may be adopted generally for the payment of the Company’s payroll.
(2) Commencing with the Company’s fiscal year 2007 and for each fiscal year thereafter, Employee shall receive an annual bonus under a bonus plan to be developed and implemented by the Company for its senior executives within six (6) months of the date of Closing, pursuant to which Employee shall receive an annual bonus to be determined by the Company’s Compensation Committee.
(3) On September 25, 2005, the Company granted to Employee options to purchase 75,000 shares of the Company’s common stock, subject to certain terms and conditions (the “Option Grant”). The Company acknowledges and agrees that all other employee stock options granted to Employee by the Company prior to the Option Grant shall immediately vest as of the Closing Date.
(4) Participation in any incentive compensation plan, pension or profit-sharing plan, annuity or group insurance plan previously adopted by the Company or which may be adopted by the Company at some future date, on terms and in amounts no less favorable than provided for other ▇▇▇▇▇▇ employees similarly employed.
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(5) After the Closing Date, immediate vesting of the options granted under the Option Grant shall occur in the event that, and at such time as the Company has a change in control or is acquired by another entity or company. (For purposes of this Agreement, “control” is defined as any event or circumstance that would require disclosure under Item 5.01 of S.E.C., Form 8-K or any comparable requirement of the Securities and Exchange Commission).
(6) Employment benefits generally provided to ▇▇▇▇▇▇ employees, including medical and dental insurance, on terms and in amounts no less favorable than provided for other Company employees similarly situated.
(7) Twenty (20) business days per year for vacation time, and five (5) business days per year for sick or personal leave, during which times Employee will be compensated the normal pro-rated portion of his base salary.
(8) Reimbursement for all expenses incurred by Employee in the ordinary course of his performance of duties hereunder and submitted by him with supporting documentation to the Company’s accounting department, in terms no less favorable than provided for other Company employees similarly situated.
(9) A leased automobile (up to a maximum monthly lease payment of $750 per month) throughout the term of Employee’s employment hereunder. Additionally, the Company shall make full payment of automobile insurance premiums and operating expenses relating to said automobile.
V Termination For Cause / Cure Period
▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York shall have “cause” to terminate this Agreement in the event that: (i) a majority of the members of the Company’s Board of Directors determines that (a) the Employee has committed an act of fraud against ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York, or (b) the Employee has committed an act of malfeasance, recklessness or gross negligence against ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York that is injurious to ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York or their customers; or (ii) the Employee has materially breached the terms of this Agreement; or (iii) the Employee is indicted for, or convicted of, or pleads no contest to, a felony or a crime involving the Employee’s moral turpitude. Prior to terminating Employee for cause hereunder, ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York shall provide Employee 30 days’ notice of such termination and Employee shall have the opportunity to cure such conduct, if curable, during said 30-day period.
VI Resignation For Good Reason
Employee shall have the right to resign his employment for “Good Reason.” For the purposes hereof, Resignation for “Good Reason” shall occur if Employee resigns from employment hereunder as a result of one or more of the following reasons: (i) the Company materially reduces the amount of Employee’s base salary or bonus opportunity; or (ii) ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York reduce his responsibilities in a manner that is materially inconsistent with the office he holds. Prior to resigning for Good Reason, Employee shall provide the Company 30 days’ notice of such intention to resign for Good Reason and the Company shall have the opportunity to cure such conduct, if curable, during said 30-day period.
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VII Severance
In the event that Employee is terminated from his employment hereunder for “cause,” pursuant to the terms of Section V above, he shall receive no severance payments from ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York.
In the event that Employee’s employment hereunder is terminated without cause or Employee resigns his employment for “Good Reason,” pursuant to the terms of Section VI above, Employee shall receive (a) his annual base salary (at the rate in effect at the time of such termination plus any scheduled increase that Employee would have received pursuant to Section IV(1)(i) of this Agreement had he not resigned for Good Reason) for a period of twelve (12) months following such termination (the “Severance Period”), (b) the bonus that he would otherwise have received during the year in which termination occurs and (c) the health and medical benefits pursuant to Section IV(6) of this Agreement through the earliest of (i) the last day of the Severance Period; (ii) the date Employee becomes eligible to receive comparable benefits; and (iii) the last day permitted by the Company’s applicable benefit plans, but not less than 12 months following such termination (subject to earlier termination on the date Employee becomes eligible to receive comparable benefits). Employee shall not be entitled to receive the severance and benefits in the event that he violates any provision of Section VIII or IX during the Severance Period.
Any base salary payable pursuant to this section shall be paid in regular monthly installments in accordance with the Company’s regular payroll practices. The annual bonuses payable hereunder shall be paid when and as annual bonuses are paid to the Company’s other senior executives.
Notwithstanding anything to the contrary contained in this Agreement, if and to the extent requested by ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York from time to time during the Severance Period, Employee shall, at times and in a manner that is mutually convenient, make himself available to consult with ▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York for no additional compensation; provided that in no event shall Employee be required to expend more than ten hours per month providing such services.
VIII Non-Disclosure
(1) Employee recognizes that ▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York possess and will continue to possess non-public information that has been created, discovered, developed, or otherwise become known to them, and/or in which property rights have been assigned or otherwise conveyed to them, which information has commercial value in the business in which they are engaged or may become engaged. All of the aforementioned information is hereinafter called “Proprietary Information.”
(2) By way of illustration, but not limitation, Proprietary Information includes trade secrets, processes, structures, formulas, data, know-how, improvements, inventions, product concepts, techniques, marketing plans, strategies, forecasts, customer lists and information about the Company’s employees and/or consultants.
(3) At all times, both during Employee’s employment hereunder and after its termination, Employee shall keep in confidence and trust all Proprietary Information, and Employee shall not use or disclose any Proprietary Information or anything directly relating to it without the
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written consent of a majority of the members of the Board of Directors of the Company, except as may be necessary in the ordinary course of Employee’s performing his duties hereunder and only for the benefit of ▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York.
IX Non Competition and Non Solicitation
During the period of Employee’s employment by ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York and for a period of twenty-four (24) months thereafter, or, if Employee is entitled to continue to receive his base salary pursuant to Section VII above, for the Severance Period plus an additional twelve (12) months thereafter, Employee shall not: (i) engage or become interested in any way, directly or indirectly, (whether as an owner, stockholder, partner, lender, investor, director, officer, employee, consultant or otherwise) in any activity, business or enterprise, if such activity, business or enterprise competes, directly or indirectly, within the geographical area of the United States, Canada or the European Union, with (A) the business of designing, developing, distributing, marketing or manufacturing dental products or (B) any other significant part of the business conducted by the Company or its subsidiaries during the period of Employee’s employment or contemplated to be conducted by it during such period (except that passive ownership of not more than 5% of the outstanding securities of any class of any corporation that are listed on a national securities exchange or traded in the over-the-counter market shall not be considered a breach of this Section); or (ii) solicit or hire for any purpose any employee of the Company or its subsidiaries, or any employee who has left such employment within the previous six months.
If, at the time of enforcement of this Section IX, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law.
X Miscellaneous Provisions
(1) Acknowledgments and Affirmations. Employee recognizes, understands, agrees and acknowledges that ▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York have a legitimate and necessary interest in protecting their goodwill and Proprietary Information. Employee further affirms, represents, and acknowledges that in the event of Employee’s termination of employment hereunder, Employee’s experience and capabilities are such that the enforcement of this Agreement will not prevent him from obtaining employment in another line of business different from that carried on by ▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York and permitted under this Agreement. Employee further affirms, represents and acknowledges that Employee has received good and valuable consideration for entering into this Agreement.
(2) Remedies for Breach. Employee agrees that any breach of this Agreement by Employee would cause irreparable damage to ▇▇▇▇▇▇ Delaware and ▇▇▇▇▇▇ New York and that, in the event of such breach, the Company shall have, in addition to any and all remedies at law, the right to an injunction, specific performance or other equitable relief to prevent or redress the violation of Employee’s obligations hereunder.
(3) Separability. If any provision hereof shall be declared unenforceable for any reason, such unenforceability shall not affect the enforceability of the remaining provisions of this
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Agreement. Further, such provision shall be reformed and construed to the extent permitted by law so that it would be valid, legal and enforceable to the maximum extent possible.
(4) Applicable Law. Any dispute arising under or related in any manner to this Agreement or to Employee’s employment hereunder or to the termination of said employment shall in all respects be governed by, adjudicated, construed and enforced in accordance with the laws of the State of New York.
(5) Jurisdiction and Venue. Employee irrevocably and unconditionally submits to the exclusive jurisdiction of any United States federal, state or city court sitting in New York in any action or proceeding relating in any manner to this Agreement or to Employee’s employment hereunder or to the termination of said employment. Further, Employee irrevocably and unconditionally agrees that all claims relating in any manner to this Agreement or to Employee’s employment hereunder or to the termination of said employment may be heard and determined in any such court and waives any objection Employee may now or hereafter have as to venue of any such action or proceeding brought in such court or the fact that such court is an inconvenient forum.
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▇▇▇▇▇▇ Technologies, Inc. |
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: CEO & President |
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▇▇▇▇▇▇ TECHNOLOGIES, INC. |
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title: CEO & President |
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