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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into by and
between UNI-CARE HEALTH SERVICES, INC., a New Hampshire corporation (the
"Company"), and LEON PARKER, an individual and pharmacist licensed in the State
of New Hampshire ("Employee") .
RECITALS:
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A. 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 HealthCare Services, Inc. ("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 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.
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(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 direction of the management
of NCS, repeated absenteeism, drug use or excessive alcohol
consumption on the part of Employee or 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 Ninety
Thousand Dollars ($90,000.00) 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 increases 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 New Hampshire 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).
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
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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
three (3) 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 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
(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.
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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 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 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
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(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 Employee, after
termination of his employment, from offering his personal services as a
retail, hospital or government pharmacist so long as he does not
compete with the Business of the Company.
(c) In the event the Company any terminates Employee for
any reason prior to the fifth anniversary of this Agreement, the
restrictions under of 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. 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.
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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 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:
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If to the Company: UNI-CARE HEALTH SERVICES, INC.
c/o NCS HEALTHCARE, INC.
3201 Enterprise Parkway, Suite 220
Beachwood, Ohio 44122
Attn: President
If to Employee: Leon Parker
38 Profile Road
Concord, New Hampshire 03331
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 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. 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.
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INTENDING TO BE LEGALLY BOUND, the parties or their duly authorized
representatives have signed this Agreement.
UNI-HEALTH SERVICES, INC.,
a New Hampshire corporation
By: /s/ Kevin B. Shaw
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Its: President
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"Company"
/s/ Leon Parker
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Leon Parker
"Employee"
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EXHIBIT "A"
FISCAL 1997 BONUS PLAN
LEON PARKER
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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= earnings before interest, taxes and amortization
(2)The maximum bonus is $30,000.
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