EXHIBIT 10.8
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 4th day of August 1988 by and between Joel F.
Gemunder residing at 5910 Sentinel Ridge, Cincinnati, Ohio 45243 ("Employee"),
and Omnicare Inc., a Delaware corporation (the "Company").
WHEREAS, the Company has employed Employee and desires to continue to
employ Employee as President of the Company and Employee desires to work for the
Company in such capacity on the terms and conditions hereinafter provided;
WHEREAS, Employee is President of the Company with major
responsibilities for planning, directing, coordinating and controlling overall
corporate operations;
WHEREAS, in such capacity Employee will develop or have access to all
or substantially all of the business methods and confidential information
relating to the Company, including but not limited to, its financial performance
and results, its product formulae, its manufacturing organization and methods,
its product research and development policies and programs, its service
techniques, its purchasing organization and methods, its sales organization and
methods, its pricing of products, its market development and expansion plans,
its personnel policies and training and development programs, and its customer
and supplier relationships; and franchising programs and franchisee
relationships;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT
Section 1.1 Positions and Duties.
(a) The Company agrees to employ Employee and Employee agrees to work
for the Company as President. Employee shall have such duties and authority as
are normally associated with his office. Employee will also serve in such other
senior management capacities as may be mutually agreed upon from time to time.
While employed hereunder, Employee shall devote his full time, effort, skill and
attention to the affairs of the Company. During the term of his employment
hereunder, Employee shall not render any services to any other person that might
be in competition with the Company or any of its subsidiaries or affiliates or
in conflict with his position as a senior executive of the Company or his duty
of undivided loyalty to the Company.
(b) While employed hereunder, Employee will be nominated as a
management nominee for election as a director of the Company and will continue
to be nominated after his current term expires.
Section 1.2 Term. Unless sooner terminated in accordance with the
provisions hereof, the term of employment shall commence on August 4, 1988 and
shall continue until August 3, 1993.
2. COMPENSATION
Section 2.1 Base Salary. While employed hereunder the Company shall
pay Employee a base salary of $228,000 per annum or such higher amount or
amounts as the Board of Directors may from time to time approve. The base salary
shall be due and payable at the same times and intervals at which salary
payments are made to other senior executives.
Section 2.2 Incentive Compensation. Employee will be entitled to
participate in all incentive compensation and bonus plans as such have been
maintained by the Company for its senior executives generally. The Employee's
annual incentive compensation will be payable, with respect to each calendar
year, on or before February 10 in the following year.
Section 2.3 Executive Salary Protection Plan. The Company agrees that
the Employee will be an "Eligible Executive" for purposes of its Executive
Salary Protection Plan. The Company and the Employee will have entered into an
agreement pursuant to Section 1 of the Executive Salary Protection Plan, as now
in effect, providing that, for purposes of such Plan, the "Recognized
Compensation" of the Employee will not be less than $19,000.00 per month.
Notwithstanding any provision of such agreement, the Company agrees that, while
Employee is employed hereunder, the benefits provided under such agreement at
the time of its execution will not be reduced.
Section 2.4 Employee Benefits. Employee shall be entitled to
participate in and receive rights and benefits under those "fringe" benefit
plans which the Company provides for its headquarters executives generally,
which at the present time include:
Omnicare Employees Savings & Investment Plan
Omnicare Long Term Disability Income Plan
Omnicare Voluntary Group Accident Insurance Plan
Omnicare Business Travel Accident Insurance Plan
Omnicare Group Life, AD&D, Medical and Disability Plans
Omnicare Employee Stock Ownership Plan
Employee's participation in such plans will be in accordance with and subject to
the terms and provisions thereof.
Section 2.5 Pension. Employee will continue to participate in the
Company's General Pension Plan ("Pension Plan") and in the Excess Benefits Plan
in accordance with and subject to their respective provisions.
Section 2.6 Miscellaneous.
(a) Company will pay or reimburse Employee for his reasonable business
expenses in accordance with Company policies.
(b) Employee will be entitled to paid vacation in accordance with
current Company policy. Employee will be entitled to payment for unused vacation
time in accordance with Company policy.
(c) The principal place of employment of Employee will be Cincinnati,
Ohio, or such other location as may be mutually agreed upon by the Employee and
the Company, subject to the travel requirements inherent in the duties and
responsibilities of his position. The Employee will be provided with office and
secretarial services commensurate with his position.
(d) Subject to Section 1.1(a) of this Agreement, compliance with
applicable laws relating to interlocking directorships, the Company's policies
on conflicts of interest and improper payments and accounting records contained
in a statement entitled "Policies on Business Ethics" and to any other current
applicable Company policy, during the term of Employee's employment hereunder,
Employee will be permitted to accept election, and to serve as, a director of
other entities. Employee will be permitted to retain all fees and other benefits
resulting from his service as a director of any such entity.
(e) The Company shall promptly pay upon demand any reasonable legal
fees incurred by Employee in connection with any enforcement of his rights under
this Agreement.
3. TERMINATION
Section 3.1 Termination of Employment. The employment of Employee
shall terminate prior to the expiration of the term specified in Section 1.2
upon the occurrence of any of the following:
(a) The death of Employee;
(b) The termination of Employee's employment due to Employee's
disability pursuant to Section 3.2; or
(c) The termination by the Company of Employee's employment for Cause
pursuant to Section 3.3.
The termination by the Company of Employee's employment hereunder for
any reason other than those specified in paragraphs (a), (b) and (c) above shall
hereinafter be referred to as a termination "Without Cause".
Section 3.2 Disability. If, by reason of physical or mental
disability, Employee is unable to carry out the duties he has assumed pursuant
to this Agreement for four (4) consecutive months, his services hereunder may be
terminated by the Company upon two (2) months' written notice to be given to
Employee at any time after the period of four (4) continuous months of
disability and while such disability continues. If, prior to the expiration of
the two (2) months after the giving of such notice, Employee shall recover from
such disability and return to the active discharge of his duties, then such
notice shall be of no further force and effect and Employee's employment shall
continue as if such disability had not occurred. If Employee shall not so
recover from his disability and return to his duties, then his services shall
terminate at the expiration date of such two (2) months' notice. During the
period of Employee's disability and until the expiration date of such two
(2) months' notice, Employee shall continue to receive all compensation and
other-benefits provided herein as if he had not been disabled, at the time, in
the amounts and in the manner provided herein. In the event a dispute arises
between Employee and the Company concerning Employee's physical or mental
ability to continue or return to the performance of his duties as aforesaid,
Employee shall submit to examination by a competent physician mutually agreeable
to both parties, and such physician's opinion as to Employee's ability to so
perform will be final and binding.
Section 3.3 For Cause. The Company may, at any time by written notice
to the Employee, terminate his services hereunder for Cause. Such notice shall
specify the event or events and the actions or failure to act constituting
Cause. The term "Cause", as used herein, shall mean and be limited to the
occurrence of one or more of the following events:
(a) His conviction, by a court of competent jurisdiction, of a felony,
which through lapse of time or otherwise is not subject to appeal;
(b) His commission of an act of fraud upon, or an act evidencing
material dishonesty toward, the Company; or
(c) Any willful failure by him to observe or perform his material
agreements herein contained.
If the basis for discharge is pursuant to paragraph (c) above,
Employee shall have thirty (30) days from his receipt of the notice of
termination for Cause to cure the actions or failure to act specified in such
notice and, in the event of any such cure within such period such conduct shall
not constitute cause hereunder.
Section 3.4 Consequences of Termination.
(a) If Employee's employment hereunder shall terminate pursuant to any
of the provisions of this Article 3, his base salary and incentive compensation
referred to in Sections 2.1 and 2.2 shall cease to accrue forthwith.
(b) If the Company shall terminate Employee's employment hereunder
Without Cause, the Company shall pay Employee monthly severance payments at an
annual rate equal to 150% of the Employee's then current base salary plus the
amount of the annual incentive bonus most recently paid or approved to be paid
to such person in respect of the previous year.
Such monthly severance payments shall be made for a period equal to the balance
of the term of employment provided for in Section 1.2; provided, however, that
the severance payments shall be reduced by one-half of the amount of any Earned
Income received by the Employee from other sources for any period such severance
payments are payable, and, provided further, that such severance payments shall
not thereby be reduced to less than a rate of $228,000 per annum. For the
purposes of the foregoing, "Earned Income" shall mean income attributable to the
rendition of personal services including salary, bonuses and incentive or other
supplementary compensation, whether payable currently or deferred, and whether
payable in cash or in property. Benefits attributable to executive or employee
stock options, benefit plans or other arrangements of the type referred to in
Section 2.3 through Section 2.6 shall not constitute Earned Income. Incidental
honorariums or fees received on an infrequent basis shall not be included in
Earned Income. However, consulting fees, finders' fees and other income for
personal services (other than directors' fees) received in lieu of employment by
others, or received on a regular and continuing basis even if employed by
another employer, shall be included in Earned Income. Directors' fees shall not
be included in Earned Income.
(c) In the event that Employee's employment hereunder shall terminate
pursuant to any of the provisions of this Article 3, the rights of Employee
under any incentive compensation plan referred to in Section 2.2, under the
executive or employee benefit plans or arrangements referred to in Section 2.3
and Section 2.4 or otherwise shall be determined in accordance with the terms
and provisions of such plans, arrangements and options applicable to an employee
whose employment has terminated in the manner that occurred, except that a
termination Without Cause shall be treated as a retirement under a retirement
plan of the Company for the purposes of the Company stock incentive plans.
4. OTHER COVENANTS OF EMPLOYEE
Section 4.1 Employee shall have no right, title or interest in any
reports, studies, memoranda, correspondence, manuals, records, plans, or other
written, printed or otherwise recorded materials of any kind belonging to or in
the possession of the Company or its subsidiaries, or in any copies, pictures,
duplicates, facsimiles or other reproductions, recordings, abstracts or
summaries thereof and Employee will promptly surrender to the Company any such
materials (other than materials which have been published or otherwise have
lawfully been made available to the public generally) in his possession upon the
termination of his employment or any time prior thereto upon request of the
Company.
Section 4.2 Without the prior written consent of the Company,
Employee shall not at any time (whether during or after his employment with the
Company) use for his own benefit or purposes or for the benefit or purposes of
any other person, firm, partnership, association, corporation or business
organization, entity or enterprise, or disclose (except in the performance, of
his duties hereunder) in any manner to any person, firm, partnership,
association, corporation or business organization, entity or enterprise, any
trade secret, or other confidential or proprietary information, data, know-how
or knowledge (including, but not limited to that relating to financial
policies, product composition, manufacturing organization and methods, research
and development policies and programs, service techniques, purchasing
organization and methods, sales organization and methods product pricing,
market development and expansion plans, personnel policies and training and
development programs, customer and
supplier relationships, and franchising programs and franchisee relationships)
belonging to, or relating to the affairs of, the Company or its subsidiaries.
Section 4.3 Employee shall promptly disclose to the Company (and to
no one else) all improvements, discoveries and inventions that may be of
significance to the Company or its subsidiaries made or conceived alone or in
conjunction with others (whether or not patentable, whether or not made or
conceived at the request of or upon the suggestion of the Company during or out
of his usual hours of work or in or about the premises of the Company or
elsewhere) while in the employ of the Company, or made or conceived within six
months after the termination of his employment by the Company, if resulting
from, suggested by or relating to such employment. All such improvements,
discoveries and inventions shall, to the extent that they are patentable, be the
sole and exclusive property of the Company and are hereby assigned to the
Company. At the request of the Company and at its cost and without liabilty to
Employee, Employee shall assist the Company, or any person or persons from time
to time designated by it, in obtaining the grant of patents in the United States
and/or in such other country or countries as may be designated by the Company
covering such improvements, discoveries and inventions and shall in connection
therewith execute such applications statements or other documents furnish such
information and data and take all such other action (including, but not limited
to, the giving of testimony) as the Company may from time to time request.
Section 4.4 The obligations of Employee set forth in this Article 4
are in addition to and not in limitation of any obligations which would
otherwise exist as a matter of law. The provisions of this Article 4 shall
survive the termination of Employee's employment hereunder.
5. CERTAIN REMEDIES
Section 5.1 Breach by the Company. In the event that the Company
shall fail, in any material respect, to observe and perform its obligations
hereunder, the Employee may give written notice to the Company specifying the
nature of such failure. If within thirty (30) days after its receipt of such
notice the Company shall not have remedied such failure, the Employee shall have
the right and option to treat such failure as termination of his employment by
the Company Without Cause, to cease rendering services hereunder and thereafter
to receive the severance benefits and have the other rights and obligations
provided for in Article 3 hereof in the case of a termination by the Company
Without Cause. The parties agree that a material breach by the Company for
purposes of this Section 5.1 shall include, but not be limited to, a material
reduction in Employee's title, authority or responsibilities from those he was
exercising on the date of execution of this Agreement. The remedy provided for
in this Section 5.1 shall be in addition to and not in limitation of any other
remedies which would otherwise exist as a matter of law.
Section 5.2 Breach by the Employee. Employee acknowledges and agrees
that the Company's remedy at law for any breach of any of Employee's obligations
under Sections 1.1(a), 4.1, 4.2 and 4.3 would be inadequate, and agrees and
consents that temporary and permanent injunctive relief may be granted in any
proceeding that may be brought to enforce any provision of any such sections,
without the necessity of proof of actual damage.
6. GENERAL PROVISIONS
Section 6.1 Representations and warranties. Employee represents and
warrants to the Company that he is free to enter into the Agreement and that he
has no prior or other obligations or commitments of any kind to anyone that
would in any way hinder or interfere with his acceptance of, or the full,
uninhibited and faithful performance of, his employment hereunder or the
exercise of his best efforts as an employee of the Company.
Section 6.2 Understandings; Amendments. Except as otherwise provided
herein, this Agreement sets forth the entire agreement and understanding of the
parties concerning the subject matter hereof and supercedes all prior
agreements, arrangements and understandings between Employee and the Company
concerning such subject matter. No representation, promise, inducement or
statement of intention has been made by or on behalf of either party hereto that
is not set forth in this Agreement or the documents referred to herein. This
Agreement may not be amended or modified except by a written instrument
specifically referring to this Agreement executed by the parties hereto.
Section 6.3 Notices.
(a) Any notice or other communication required or permitted to be
given hereunder shall be in writing and may either be delivered personally to
the addressee or be mailed registered mail, postage prepaid, as follows: if to
the Company:
Omnicare, Inc.
1300 Fountain Square South
Cincinnati, OH 45202
Attn: President
with a copy to:
Secretary
Omnicare, Inc.
1300 Fountain Square South
Cincinnati, OH 45202
If to Employee:
Joel F. Gemunder
5910 Sentinel Ridge Drive
Cincinnati, OH 45243
(b) Either party may change the address to which any such notices or
communications are to be directed to it by giving written notice to the other
party in the manner provided in the preceding paragraph (a).
Section 6.4 Assignments; Binding Effect.
(a) Employee acknowledges that the services to be rendered by him are
unique and personal. Accordingly, Employee may not assign any of his rights or
delegate any of his duties or obligations under this Agreement. This Agreement
shall be binding upon, and to the extent herein permitted shall inure to the
benefit of, Employee's heirs, legatees and legal representatives.
(b) The Company may not assign this Agreement or its rights hereunder
except to a successor of all or substantially all of the business and assets of
the Company. This Agreement shall be binding upon, and shall inure to the
benefit of, the Company's successors and permitted assigns.
Section 6.5. Waivers. The failure of either party hereto at any time
or from time to time to require performance of any of the other party's
obligations under this agreement shall in no manner affect the right to enforce
any provision of this Agreement at a subsequent time, and the waiver of any
rights arising out of any breach shall not be construed as a waiver of any
rights arising out of any subsequent breach.
Section 6.6. Severance Plans. Amounts paid hereunder are in addition
to any amounts payable under the Company severance plans, without offset or
reduction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written hereinabove.
OMNICARE, INC.
By: /s/ Edward L. Hutton
----------------------------
EMPLOYEE
/s/ Joel F. Gemunder
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 4th day of August, 1988 by and between Cheryl
D. Hodges residing at 9403 Constitution Drive, Cincinnati, Ohio 45214
("Employee"), and Omnicare, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company has employed Employee and desires to continue to
employ Employee as a senior executive and Employee desires to work for the
Company in such capacity on the terms and conditions hereinafter provided;
WHEREAS, Employee is a key senior executive of the Company with major
responsibilities for planning, directing, coordinating and controlling various
corporate operations;
WHEREAS, in such capacity Employee will develop or have access to all
or substantially all of the business methods and confidential information
relating to the Company, including but not limited to, its financial performance
and results, its product formulae, its manufacturing organization and methods,
its product research and development policies and programs, its service
techniques, its purchasing organization and methods, its sales organization and
methods, its pricing of products, its market development and expansion plans,
its personnel policies and training and development programs, and its customer
and supplier relationships; and franchising programs and franchisee
relationships;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT
Section 1.1 Positions and Duties.
(a) The Company agrees to employ Employee and Employee agrees to work for
the Company as a senior executive. Employee shall have such duties and authority
as are normally associated with her office. Employee will also serve in such
other senior management capacities as may be mutually agreed upon from time to
time. While employed hereunder, Employee shall devote her full time, effort,
skill and attention to the affairs of the Company. During the term of her
employment hereunder, Employee shall not render any services to any other person
that might be in competition with the Company or any of its subsidiaries or
affiliates or in conflict with her position as a senior executive of the Company
or her duty of undivided loyalty to the Company.
(b) While employed hereunder, Employee will be nominated as a management
nominee for election as a director of the Company no less frequently than
bi-annually.
Section 1.2 Term. Unless sooner terminated in accordance with the
provisions hereof, the term of employment shall commence on August 4, 1988 and
shall continue until August 3, 1993.
2. COMPENSATION
Section 2.1 Base salary. While employed hereunder the Company shall pay
Employee a base salary of $66,700 per annum or such higher amount or amounts as
the Board of Directors may from time to time approve. The base salary shall be
due and payable at the same times and intervals at which salary payments are
made to other senior executives.
Section 2.2 Incentive Compensation. Employee will be entitled to
participate in all incentive compensation and bonus plans as such have been
maintained by the Company for its senior executives generally. The Employee's
annual incentive compensation will be payable, with respect to each calendar
year, on or before February 10 in the following year.
Section 2.3 Employee Benefits. Employee shall be entitled to participate in
and receive rights and benefits under those "fringe" benefit plans which the
Company provides for its headquarters executives generally, which at the present
time include:
Omnicare Employees Savings & Investment Plan
Omnicare Long Term Disability Income Plan
Omnicare Voluntary Group Accident Insurance Plan
Omnicare Business Travel Accident Insurance Plan
Omnicare Group Life, AD&D Medical and Disability Plans
Omnicare Employee Stock Ownership Plan
Employee's participation in such plans will be in accordance with and subject to
the terms and provisions thereof.
Section 2.4 Pension. Employee will continue to participate in the Company's
General Pension Plan ("Pension Plan") and in the Excess Benefits Plan in
accordance with and subject to their respective provisions.
Section 2.5 Miscellaneous.
(a) Company will pay or reimburse Employee for her reasonable business
expenses in accordance with Company policies.
(b) Employee will be entitled to paid vacation in accordance with current
Company policy. Employee will be entitled to payment for unused vacation time in
accordance with Company policy.
(c) The principal place of employment of Employee will be Cincinnati, Ohio,
or such other location as may be mutually agreed upon by the Employee and the
Company, subject to the
travel requirements inherent in the duties and responsibilities of his position.
The Employee will be provided with office and secretarial services commensurate
with her position.
(d) Subject to Section 1.1(a) of this Agreement, compliance with applicable
laws relating to interlocking directorships, the Company's policies on conflicts
of interest and improper payments and accounting records contained in a
statement entitled "Policies on Business Ethics" and to any other current
applicable Company policy, during the term of Employee's employment hereunder,
Employee will be permitted to accept election, and to serve as, a director of
other entities. Employee will be permitted to retain all fees and other benefits
resulting from his service as a director of any such entity.
(e) The Company shall promptly pay upon demand any reasonable legal fees
incurred by Employee in connection with any enforcement of her rights under this
Agreement.
3. TERMINATION
Section 3.1 Termination of Employment. The employment of Employee shall
terminate prior to the expiration of the term specified in Section 1.2 upon the
occurrence of any of the following:
(a) The death of Employee;
(b) The termination of Employee's employment due to Employee's disabiity
pursuant to Section 3.2; or
(c) The termination by the Company of Employee's employment for Cause
pursuant to Section 3.3.
The termination by the Company of Employee's employment hereunder for
any reason other than those specified in paragraphs (a), (b) and (c) above shall
hereinafter be referred to as a termination "Without Cause."
Section 3.2 Disability. If, by reason of physical or mental disability,
Employee is unable to carry out the duties he has assumed pursuant to this
Agreement for four (4) consecutive months, her services hereunder may be
terminated by the Company upon two (2) months' written notice to be given to
Employee at any time after the period of four (4) continuous months of
disability and while such disability continues. If, prior to the expiration of
the two (2) months after the giving of such notice, Employee shall recover from
such disability and return to the active discharge of her duties, then such
notice shall be of no further force and effect and Employee's employment shall
continue as if such disability had not occurred. If Employee shall not so
recover from her disability and return to her duties, then her services shall
terminate at the expiration date of such two (2) months' notice. During the
period of Employee's disability and until the expiration date of such two (2)
months' notice, Employee shall continue to receive all compensation and other
benefits provided herein as if she had not been disabled, at the time, in the
amounts and in the manner provided herein. In the event a dispute arises
between Employee and the Company concerning Employee's physical or mental
ability to continue or return to the
performance of her duties as aforesaid, Employee shall submit to examination by
a competent physician mutually agreeable to both parties, and such physician's
opinion as to Employee's ability to so perform will be final and binding.
Section 3.3 For Cause. The Company may, at any time by written notice to
the Employee, terminate her services hereunder for Cause. Such notice shall
specify the event or events and the actions or failure to act constituting
Cause. The term "Cause", as used herein, shall mean and be limited to the
occurrence of one or more of the following events:
(a) Her conviction, by a court of competent jurisdiction, of a felony,
which through lapse of time or otherwise is not subject to appeal;
(b) Her commission of an act of fraud upon, or an act evidencing material
dishonesty toward, the Company; or
(c) Any willful failure by her to observe or perform her material
agreements herein contained.
If the basis for discharge is pursuant to paragraph (c) above, Employee
shall have thirty (30) days from his receipt of the notice of termination for
Cause to cure the actions or failure to act specified in such notice and, in the
event of any such cure within such period, such conduct shall not constitute
Cause hereunder.
Section 3.4 Consequences of Termination.
(a) If Employee's employment hereunder shall terminate pursuant to any
of the provisions of this Article 3, her base salary and incentive compensation
referred to in Sections 2.1 and 2.2 shall cease to accrue forthwith.
(b) If the Company shall terminate Employee's employment hereunder
Without Cause, the Company shall pay Employee monthly severance payments at an
annual rate equal to 150% of the Employee's then current base salary plus the
amount of the annual incentive bonus most recently paid or approved to be paid
to such person in respect of the previous year. Such monthly severance payments
shall be made for a period equal to the balance of the term of employment
provided for in Section 1.2; provided, however, that the severance payments
shall be reduced by one-half of the amount of any Earned Income received by the
Employee from other sources for any period such severance payments are payable,
and, provided further, that such severance payments shall not thereby be reduced
to less than a rate of $66,700 per annum. For the purposes of the foregoing,
"Earned Income" shall mean income attributable to the rendition of personal
services including salary, bonuses and incentive or other supplementary
compensation, whether payable currently or deferred, and whether payable in cash
or in property. Benefits attributable to executive or employee stock options,
benefit plans or other arrangements of the type referred to in Section 2.3
through Section 2.5 shall not constitute Earned Income. Incidental honorariums
or fees received on an infrequent basis shall not be included in Earned Income.
However, consulting fees, finders' fees and other income for personal services
(other than directors' fees) received in lieu of employment by others, or
received on a regular and
continuing basis even if employed by another employer, shall be included in
Earned Income. Directors' fees shall not be included in Earned Income.
(c) In the event that Employee's employment hereunder shall terminate
pursuant to any of the provisions of this Article 3, the rights of Employee
under any incentive compensation plan referred to in Section 2.2, under the
executive or employee benefit plans or arrangements referred to in Section 2.3
and Section 2.4 or otherwise, shall be determined in accordance with the terms
and provisions of such plans, arrangements and options applicable to an employee
whose employment has terminated in the manner that occurred, except that a
termination Without Cause shall be treated as a retirement under a retirement
plan of the Company for the purposes of the Company stock incentive plans.
4. OTHER COVENANTS OF EMPLOYEE.
Section 4.1 Employee shall have no right, title or interest in any reports,
studies, memoranda, correspondence, manuals, records, plans, or other written,
printed or otherwise recorded materials of any kind belonging to or in the
possession of the Company or its subsidiaries, or in any copies, pictures,
duplicates, facsimiles or other reproductions, recordings, abstracts or
summaries thereof and Employee will promptly surrender to the Company any such
materials (other than materials which have been published or otherwise have
lawfully been made available to the public generally) in her possession upon the
termination of her employment or any time prior thereto upon request of the
Company.
Section 4.2 Without the prior written consent of the Company, Employee
shall not at any time (whether during or after her employment with the Company)
use for her own benefit or purposes or for the benefit or purposes of any other
person, firm, partnership, association, corporation or business organization,
entity or enterprise, or disclose (except in the performance of his duties
hereunder) in any manner to any person, firm, partnership, association,
corporation or business organization, entity or enterprise, any trade secret, or
other confidential or proprietary information, data, know-how or knowledge
(including, but not limited to, that relating to financial policies, product
composition, manufacturing organization and methods, research and development
policies and programs, service techniques, purchasing organization and methods,
sales organization and methods, product pricing, market development and
expansion plans, personnel policies and training and development programs,
customer and supplier relationships, and franchising programs and franchisee
relationships) belonging to, or relating to the affairs of, the Company or its
subsidiaries.
Section 4.3 Employee shall promptly disclose to the Company (and to no one
else) all improvements, discoveries and inventions that may be of significance
to the Company or its subsidiaries made or conceived alone or in conjunction
with others (whether or not patentable, whether or not made or conceived at the
request of or upon the suggestion of the Company during or out of his usual
hours of work or in or about the premises of the Company or elsewhere) while
in the employ of the Company, or made or conceived within six months after the
termination of his employment by the Company, if resulting from, suggested by
or relating to such employment. All such improvements, discoveries and
inventions shall, to the extent that they are patentable, be the sole and
exclusive property of the Company and are hereby assigned
to the Company. At the request of the Company and at its cost and
without liabilty to Employee, Employee shall assist the Company, or any person
or persons from time to time designated by it, in obtaining the grant of patents
in the United States and/or in such other country or countries as may be
designated by the Company covering such improvements, discoveries and inventions
and shall in connection therewith execute such applications, statements or other
documents, furnish such information and data and take all such other action
(including, but not limited to, the giving of testimony) as the Company may from
time to time request.
Section 4.4 The obligations of Employee set forth in this Article 4 are in
addition to and not in limitation of any obligations which would otherwise exist
as a matter of law. The provisions of this Article 4 shall survive the
termination of Employee's employment hereunder.
5. CERTAIN REMEDIES
Section 5.1 Breach by the Company. In the event that the Company shall
fail, in any material respect, to observe and perform its obligations hereunder,
the Employee may give written notice to the Company specifying the nature of
such failure. If within thirty (30) days after its receipt of such notice the
Company shall not have remedied such failure, the Employee shall have the right
and option to treat such failure as termination of his employment by the Company
Without Cause, to cease rendering services hereunder and thereafter to receive
the severance benefits and have the other rights and obligations provided for in
Article 3 hereof in the case of a termination by the Company Without Cause. The
parties agree that a material breach by the Company for purposes of this Section
5.1 shall include, but not be limited to, a material reduction in Employee's
title, authority or responsibilities from those he was exercising on the date of
execution of this Agreement. The remedy provided for in this Section 5.1 shall
be in addition to and not in limitation of any other remedies which would
otherwise exist as a matter of law.
Section 5.2 Breach by the Employee. Employee acknowledges and agrees that
the Company's remedy at law for any breach of any of Employee's obligations
under Sections 1.1(a), 4.1, 4.2 and 4.3 would be inadequate, and agrees and
consents that temporary and permanent injunctive relief may be granted in any
proceeding that may be brought to enforce any provision of any such sections,
without the necessity of proof of actual damage.
6. GENERAL PROVISIONS
Section 6.1 Representations and Warranties. Employee represents and
warrants to the Company that she is free to enter into the Agreement and that
she has no prior or other obligations or commitments of any kind to anyone
that would in any way hinder or interfere with her acceptance of, or the full,
uninhibited and faithful performance of, her employment hereunder or the
exercise of her best efforts as an employee of the Company.
Section 6.2 Understandings; Amendments. Except as otherwise provided
herein, this Agreement sets forth the entire agreement and understanding of
the parties concerning the subject matter hereof and supercedes all prior
agreements, arrangements and understandings
between Employee and the Company concerning such subject matter. No
representation, promise, inducement or statement of intention has been made by
or on behalf of either party hereto that is not set forth in this Agreement or
the documents referred to herein. This Agreement may not be amended or modified
except by a written instrument specifically referring to this Agreement executed
by the parties hereto.
Section 6.3 Notices.
(a) Any notice or other communication required or permitted to be given
hereunder shall be in writing and may either be delivered personally to the
addressee or be mailed, registered mail, postage prepaid, as follows:
If to the Company:
Omnicare, Inc.
1300 Fountain Square South
Cincinnati, OH 45202
Attn: President
with a copy to:
Secretary
Omnicare, Inc.
1300 Fountain Square South
Cincinnati, OH 45202
If to Employee:
Cheryl D. Hodges
9403 Constitution Drive
Cincinnati, OH 45215
(b) Either party may change the address to which any such notices or
communications are to be directed to it by giving written notice to the other
party in the manner provided in the preceding paragraph (a).
Section 6.4 Assignments; Binding Effect.
(a) Employee acknowledges that the services to be rendered by her are unique
and personal. Accordingly, Employee may not assign any of her rights or delegate
any of her duties or obligations under this Agreement. This Agreement shall be
binding upon, and to the extent herein permitted shall inure to the benefit of,
Employee's heirs, legatees and legal representatives.
(b) The Company may not assign this Agreement or its rights hereunder except
to a successor of all or substantially all of the business and assets of the
Company. This Agreement
shall be binding upon, and shall inure to the benefit of, the Company's
successors and permitted assigns.
Section 6.5 Waivers. The failure of either party hereto at any time or from
time to time to require performance of any of the other party's obligations
under this agreement shall in no manner affect the right to enforce any
provision of this Agreement at a subsequent time, and the waiver of any rights
arising out of any breach shall not be construed as a waiver of any rights
arising out of any subsequent breach.
Section 6.6 Severance Plans. Amounts paid hereunder are in addition to any
amounts payable under the Company severance plans, without offset or reduction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written hereinabove.
OMNICARE, INC.
By: /s/ Joel F. Gemunder
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EMPLOYEE
/s/ Cheryl D. Hodges
--------------------------