Exhibit 10(mmm)
FIRST AMENDMENT TO
AMENDED AND RESTATED EMPLOYMENT
AND NON-COMPETITION
AGREEMENT
This amendment is made effective
January 1, 2009, between Gregory A. Serrao (the
“Executive”) and American Dental Partners, Inc., a
Delaware corporation (the “Company”).
Background
Information
A. The Executive and the Company
(the “Parties”) are parties to an Amended and Restated
Employment and Non-Competition Agreement dated January 2, 2001
(the “Agreement”).
B. The Parties desire to modify the
Agreement to cause it to comply with the final regulations
promulgated under Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), which governs
non-qualified deferred compensation arrangements, and the Parties
are entering into this amendment for that purpose.
Statement of the
Agreement
The Parties hereby acknowledge the
foregoing Background Information and agree as follows:
1. Definitions . Any
capitalized terms used but not otherwise defined in this amendment
shall have the respective meanings given those terms in the
Agreement.
2. Bonus Payments . The last
sentence in Section 5 of the Agreement is hereby amended to
read in its entirety as follows:
Each bonus payable to the Executive
under the Bonus Plan, if any, shall be paid not later than the
first to occur of (i) 10 days after receipt of the audited
financial statements for the applicable fiscal year or
(ii) the date which is 75 days after the end of such fiscal
year; provided that in no event shall such payment be made later
than December 31 following the 75-day period after such
applicable fiscal year.
3. Benefits . A new last
sentence is hereby added to the end of Sections 6.02 and 6.06 of
the Agreement to read as follows:
If any such benefits are taxable,
the Company shall ensure that terms of the benefits will comply
with Section 409A of the Code (“Section 409A”) and
the Treasury Regulations and other guidance promulgated or issued
thereunder.
4. Reimbursement of Expenses
. A new last sentence is hereby added to the end of
Section 6.03 to read as follows:
Such reimbursement shall occur no
later than the end of the calendar year following the calendar year
in which such expense was
