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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into by and between
UNI-CARE HEALTH SERVICES OF MAINE, INC., a New Hampshire corporation (the
"Company"), and RICHARD P. LEGERE, an individual and pharmacist licensed in the
state of Maine ("Employee").
RECITALS:
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A. NCS HealthCare, Inc. ("NCS") has acquired all of the stock of the
Company held by Employee, pursuant to a Stock Purchase Agreement, dated as of
May 15, 1996 (the "Stock Purchase Agreement"), by and among NCS, Employee and
others.
B. As a condition to such acquisition, the Company and Employee desire to
enter into an agreement to provide for the employment of Employee by the Company
and for a prohibition on his disclosing confidential information of, competing
against or otherwise interfering with the Company.
In consideration of and in reliance upon the covenants, obligations and
agreements herein contained, the Company and Employee hereby agree as follows:
1. EMPLOYMENT. The Company hereby offers, and Employee hereby accepts,
employment as Site Manager with the responsibilities and powers customarily
associated with such position under the general direction of the management of
NCS. Employee shall also perform such other duties as the management of NCS may
from time to time reasonably request.
2. PERFORMANCE. During the term of this Agreement, Employee covenants and
agrees to devote his full time, energy and best efforts to the furtherance of
the business of the Company. Employee covenants that he will not engage in any
activity which interferes with the performance of his duties hereunder and in
any case will not provide personal services to any individual, firm or other
business entity as an employee, advisor or otherwise without the prior written
consent of the management of NCS.
3. TERM. The employment period under this Agreement shall commence upon the
date of this Agreement by the parties and continue for five (5) years.
4. TERMINATION. Notwithstanding anything to the contrary in this Agreement,
the Company may terminate Employee's employment as follows:
(a) At the option of and upon 30 days' advance written notice from the
Company if Employee shall become disabled, which, for purposes of this
Agreement, shall
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be deemed to have occurred if Employee suffers from any disability or
impairment of health which continues for at least 90 days and which in the
good faith opinion of the Company's management renders the Employee unable
to perform his duties on an active full-time basis.
(b) As of the end of the month in which Employee dies.
(c) At the option of and by written notice from the Company for any of
the following: wilful misconduct, gross negligence, gross neglect of
duties, or wilful refusal to carry out the duties and responsibilities set
forth herein, including failure to observe the directives of the management
of NCS, repeated absenteeism, drug use or excessive alcohol consumption on
the part of Employee, breach by Employee of any of his obligations under
this Agreement or his fiduciary duties to the Company, or public conduct
which in any manner offends against decency or morality; provided, that in
any such instance under this subparagraph (c), the Company may terminate
Employee's employment only if, after having received written notice of said
conduct or breach, Employee does not remedy the same to the Company's
satisfaction within twenty-one (21) days of receipt of said written notice.
(d) Immediately and without prior notice upon the occurrence of any of
the following: Employee's professional pharmacy license is revoked,
suspended or surrendered, conviction of or plea by Employee upon any felony
charge, major misdemeanor or offense involving moral turpitude, or
misappropriation, embezzlement, or theft of the Company's assets or
property by Employee.
Termination of this Agreement pursuant to the foregoing provisions shall
not prejudice any other remedy to which the Company or Employee may be entitled
either at law, in equity or under the terms of this Agreement.
5. BASE SALARY; BONUS. In consideration of the services to be performed by
Employee hereunder, Employee shall be paid a base salary of Seventy-seven
Thousand Dollars ($77,000.00) per calendar year, payable in accordance with the
Company's standard payroll practices. Such salary shall be reviewed annually and
be subject to such periodic adjustments as determined from time to time by the
management of NCS. In addition, Employee shall be entitled to a cash bonus based
upon the earnings of the Company's Maine operations before interest, taxes and
amortization ("EBIT-A"), payable annually, as set forth on Exhibit "A" and
incorporated herein by reference. Such bonus structure shall be reviewed
annually and be subject to such periodic adjustments as determined from time to
time by the management of NCS. Additional incentives, including stock options,
may be established after 12 months at the sole discretion of the Company as
Employee's assigned responsibilities require them.
6. BENEFITS. The Company shall provide Employee with substantially the same
benefits as are generally provided other site managers of NCS. Employee shall
also be entitled to participate in NCS-sponsored non-qualified or qualified
pension, profit-sharing or similar retirement plans upon attaining eligibility
for participation in such plan(s).
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7. BUSINESS EXPENSES. The Company shall at regular intervals reimburse
Employee for all reasonable business expenses incurred and paid by Employee in
connection with his employment which are substantiated by adequate written
documentation as required by the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder, and the guidelines and practices
established from time to time by the Company.
8. VACATION AND HOLIDAYS. Employee shall be entitled to four (4) weeks paid
vacation per calendar year, which vacation must be approved in advance by the
management of NCS. In addition, Employee shall be entitled to such holidays as
the Company may approve.
9. NON-DISCLOSURE OF PROPRIETARY AND CONFIDENTIAL INFORMATION. Employee
covenants that he shall not, at any time during the duration of this Agreement
and at any time thereafter, whether or not in the employ of the Company,
disclose, communicate or divulge to, or use for his personal benefit or for the
benefit of, directly or indirectly, any person, firm, association, partnership
or corporation other than the Company and its representatives, any private,
confidential or proprietary information. For purposes of this Agreement, the
terms "private," "confidential" and "proprietary" information mean and include
any and all information relating to the terms and conditions of this Agreement,
the Stock Purchase Agreement or the transactions contemplated thereby, and any
and all information belonging to, used by, or which is in the possession of the
Company relating to the Company's business, products, services, strategies,
pricing, customers, representatives, suppliers, distributors, technology,
programs, finances, costs, employee compensation, marketing plans, developmental
plans, computer software (including all operating system and systems application
software), inventions, developments or trade secrets, all to the extent such
information is not intended by the Company to be disseminated to the public or
to other participants in the Company's trade or business or is otherwise not
generally known to competitors of the Company. Employee acknowledges that all of
the private, confidential and proprietary information is and shall continue to
be the exclusive proprietary property of the Company, whether or not prepared in
whole or in part by Employee and whether or not disclosed to or entrusted to the
custody of Employee. Employee further covenants that upon termination of his
employment with the Company, Employee shall immediately turn over to the Company
all originals and copies of correspondence, letters, papers, reports, disks,
lists and each and every writing or record in the possession or control of
Employee and pertaining to the business of the Company. Employee further agrees
that the Company shall be entitled to all legal and equitable remedies for
violation of this Section.
Notwithstanding the foregoing, with respect to information, the terms
"private," "confidential" and "proprietary" shall not include any of the
following;
(a) Such information that was a part of the public domain prior to the
date of this Agreement;
(b) Such information that became or becomes part of the public domain
not due to some unauthorized act or omission of Employee; or
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(c) Such information that is obtained from a third party who is
lawfully in possession of the same and did not obtain it from the Company.
Notwithstanding the foregoing, the Employee may disclose private,
confidential or proprietary information as required by law or in the event of
subpoena; provided, that Employee gives written notice to the Company prior to
any proposed disclosure, if permitted by law.
10. RESTRICTIVE COVENANT; NON-SOLICITATION.
(a) Employee acknowledges and agrees that in the course of performing
services for the Company he has and will become further acquainted with and
has and will further learn about the affairs of the Company, its officers
and employees, its services, products, business practices, financial
condition, operations, programs, "know-how," procedures, customers, the
needs and requirements of its customers, trade secrets and other private,
confidential or proprietary information that the Company has or will
acquire at its cost and expense, and has and will continue to develop
business relationships with the Company's clients, potential clients and
its suppliers. Therefore, as an essential ingredient in consideration of
this Agreement, Employee hereby agrees that in addition to any other
obligations or duties he owes to the Company, that until the seventh
anniversary of the date of this Agreement, Employee will not, without the
express, written consent of the Company, directly or indirectly, whether as
an individual, employee, sole proprietor, principal, owner, partner,
shareholder (except as a holder of one percent (1%) or less of any class of
outstanding securities listed on any national securities exchange or
actively traded in an over-the-counter market), officer, director, trustee,
administrator, manager, agent, consultant, independent contractor, formal
or informal advisor or by or through the lending of any form of assistance;
(i) Engage in any business activities competitive with the
Business of the Company (hereinafter defined), its successors and
assigns; or
(ii) Offer or endeavor to offer any goods or services the Company
provided or any goods or services substantially similar to those of
the Company at the time of termination of Employee's employment with
the Company (or its successors or assigns); or
(iii) Within the states of New Hampshire, Massachusetts, Maine,
Vermont, Connecticut, New York Ohio, Pennsylvania, Indiana, Michigan,
Illinois, Missouri, Wisconsin, Minnesota and Iowa offer or endeavor to
offer any goods or services the Company provided or any goods or
services substantially similar to those of the Company at the time of
termination of Employee's employment with the Company (or its
successors or assigns); or
(iv) Compete with the Company for the business of any customer or
a potential customer of the Company with whom Employee had contact
while employed by the Company that involves the same or
substantially-similar goods
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or services as those for which Employee was directly or indirectly
responsible at the time of termination of Employee's employment with
the Company (or its successors or assigns); or
(v) Solicit, divert or take away or attempt to solicit, divert or
take away any business of the Company with anyone who is a customer of
the Company at the time of the termination of Employee's employment
with the Company (or its successors or assigns); or
(vi) Solicit, take away, hire, employ or attempt to solicit, take
away, hire or employ any of the employees of the Company (or its
successors or assigns).
For purposes of this Agreement, the "Business of the Company" is
defined to include, but is not limited to, (a) the sale of pharmaceuticals,
pharmacy and medical devices, supplies and equipment, IV's and related
products to nursing homes and/or other long-term care facilities, (b) the
offering of laboratory, nutritional counseling and related services, and
(c) the offering of home health services, including nursing care.
(b) Nothing herein shall prohibit Employ, after termination of his
employment, from providing his personal services as a retail pharmacist so
long as he does not compete with the Business of the Company. Further,
after termination of his employment, Employee shall also be permitted to
provide his personal services to any government agency in any capacity or
an insurance company or managed care company provided that neither the said
entity, nor an entity for which the entity performs services, is in the
long-term care pharmacy business.
(c) In the event the Company terminates Employee for any reason prior
to the fifth anniversary of this Agreement, the restrictions under this
Section 10 shall expire after the second anniversary of the effective date
of Employee's termination.
11. INJUNCTIVE RELIEF. Employee recognizes that a breach or threatened
breach by Employee of this Agreement will cause irreparable injury to the
Company that is inadequately compensable in damages and, as a result, the
Company will not have an adequate remedy at law to redress such injury.
Therefore, in the event Employee threatens to violate or violates any provision
of this Agreement, Employee agrees that in addition to its other remedies, the
Company shall be entitled to injunctive relief including, but not limited to,
temporary restraining orders and/or preliminary or permanent injunctions to
restrain or enjoin any violation or threatened violation of this Agreement.
12. ENFORCEMENT AND SURVIVAL OF NON-PIRACY AND NON-COMPETE COVENANTS
AND-NON-DISCLOSURE AND CONFIDENTIALITY PROVISIONS. The provisions of Sections
9, 10 and 11 and the other associated provisions of this Agreement shall survive
the termination of this Agreement. It is
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understood and agreed that the restrictions set forth in Sections 9 and 10
herein were bargained for by the Company as a material term under the Stock
Purchase Agreement.
Notwithstanding anything herein to the contrary, Employee understands and
expressly consents and agrees that (a) a change in ownership of the Company
could occur or (b) the Company may sell or otherwise transfer substantially all
of its operating assets of its business to a third party and, as part of such
sale, assign the Company's rights and obligations hereunder to such third party
purchaser. In either such event, Employee acknowledges and agrees that the
provisions regarding non-disclosure, non-piracy and non-competition contained
herein shall be enforceable by such new owner(s) through the Company or a third
party purchaser/assignee.
13. NEW DEVELOPMENTS. Employee agrees that he will disclose promptly to the
Company any and all improvements, inventions, developments, discoveries,
innovations, systems, techniques, ideas, processes, programs and other things,
whether patentable or unpatentable, that are made or conceived by him alone or
with others, in whole or in part, during his employment and which were made or
conceived in whole or in part with the Company's resources or during Company
time and related to the Business of the Company (collectively referred to as
"New Developments"). Employee further agrees that all New Developments shall be
and remain the sole and exclusive property of the Company and that Employee
shall, upon the request of the Company, and without further compensation, do
lawful things reasonably necessary to ensure the Company's ownership of any New
Development, including the execution of any necessary documents assigning and
transferring to the Company all of Employee's right, title and interest in and
to any New Development, and the execution of all necessary documents required to
enable the Company to file and obtain patents to the United Sates and foreign
countries on any New Development.
14. MISCELLANEOUS PARAGRAPHS.
(a) OTHER BENEFITTED PERSONS. Employee agrees for purposes of this
Agreement, the term "Company" includes and inures to the benefit of NCS and
its subsidiaries.
(b) EXTENSION OF RESTRICTIVE COVENANTS. If a court of competent
jurisdiction finds that Employee has violated any of the restrictions or
covenants set forth in Section 10 of this Agreement, then the parties agree
that the period of all restrictions and covenants set forth in Section 10
automatically shall be extended by the number of days that the court
determines Employee to have been in violation of such restriction or
covenant.
(c) REASONABLENESS OF TERMS; SEVERABILITY. Both the Company and
Employee stipulate and agree that covenants and other terms contained in
this Agreement are reasonable in all respects, including time period,
geographical area and scope of restricted activities, and that the
restrictions contained herein are designed to protect the Company's
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business and ensure that Employee does not engage in unfair competition
with the Company. In the event that any provision, term or restriction of
this Agreement (or portion thereof) shall be held invalid, illegal or
otherwise unenforceable in any respect, such provision, term or restriction
(or portion thereof) shall be modified or, if necessary, severed and the
balance of this Agreement shall continue in full force and effect.
(d) NOTICES. All notices or other communications hereunder shall not
be binding on either party hereto unless in writing, and delivered to the
other party hereto at the following address:
If to Company: UNI-CARE HEALTH SERVICES OF MAINE, INC.
c/o NCS HEALTHCARE, INC.
3201 Enterprise Parkway, Suite 220
Beachwood, Ohio 44122
Attn: President
If to Employee: Richard p. Legere
R.R. 4, Box 595, 84 Drakes Island Road
Wells, Maine 04090
Notices shall be deemed duly delivered upon hand delivery thereof at
the above addresses or two days after deposit thereof in the United States
mails, postage prepaid, certified or registered mail. Either party may
change its address for notice by delivery of written notice thereof in the
manner provided.
(e) WAIVER. Failure of any party hereto to insist upon strict
compliance with any of the terms, covenants and conditions hereof shall not
be deemed a waiver or relinquishment of any similar right or power
hereunder at any subsequent time.
(f) BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the Company, its successors or assigns, and Employee and
his heirs, executors, administrators, and legal representatives. Employee
shall not have any right to anticipate, alienate or assign any of his
rights or obligations under this Agreement, and any effort to do so shall
be null and void.
(g) ENTIRE AGREEMENT; AMENDMENT. THE PARTIES HERETO ACKNOWLEDGE THAT
THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS
TERMS. The parties further acknowledge this Agreement together with the
Stock Purchase Agreement to be the complete and final understanding between
them, superseding any existing employment or similar agreement and all
other contracts or proposals, oral or written, and any and all other
communications between them relating to the subject matter of this
Agreement.
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Except as provided herein, this Agreement cannot be amended, modified or
supplemented in any respect except by a subsequent written agreement
entered into by the parties.
(h) EFFECTIVE DATE. Upon execution by the parties, this Agreement
shall be deemed effective as of May 15, 1996.
INTENDING TO BE LEGALLY BOUND, the parties or their duly authorized
representatives have signed this Agreement.
UNI-CARE HEALTH SERVICES
OF MAIN, INC.
By: /s/ Kevin B. Shaw
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Its: President
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"Company"
/s/ Richard P. Legere
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Richard P. Legere
"Employee"
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EXHIBIT "A"
FISCAL 1997 BONUS PLAN
RICHARD LEGERE
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EBIT-A %(1) Dollar Amount(2)
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10% - < 11% $10,000
11% - < 12% $13,000
12% - < 13% $16,000
13% - < 14% $20,000
14% - < 15% $25,000
15% - > $30,000
<FN>
(1)EBIT-A = earning before interest, taxes and amortization
(2)The maximum bonus is $30,000.
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