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Exhibit 99.3
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of the 13th day of August, 1996, by and between
NCS HEALTHCARE OF OKLAHOMA, INC., an Oklahoma corporation (the "Company"), and
GAIL BENJAMIN, an individual ("Employee").
RECITALS:
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A. Employee is a principal officer and shareholder of Med-Equip Homecare
Equipment Service, Inc., an Oklahoma corporation ("Seller").
B. Employee has obtained valuable knowledge and experience pertaining to
Seller's business (the "Business") of providing medical devices, durable
medical equipment and other health or medical supplies and related services to
nursing homes, other institutional care facilities and individuals residing in
such facilities.
C. The Company is acquiring substantially all of the assets of Seller
related to the Business pursuant to that certain Asset Purchase Agreement,
dated August 13, 1996 (the "Asset Purchase Agreement"), by and among the
Company, Seller, and the shareholders of Seller.
D. As a condition to such acquisition, Employee and the Company desire to
enter into an agreement to provide for the employment of Employee by the
Company.
In consideration of and in reliance upon the covenants, obligations and
agreements contained herein, the Company and Employee hereby agree as follows:
1. EMPLOYMENT SERVICES. For the five (5) year period commencing on the
date hereof (the "Employment Period"), the Company hereby agrees to employ
Employee as an employee. As such, Employee shall perform such reasonable and
appropriate duties for the Company as may be assigned to her by the Board of
Directors of the Company (the "Board") or its designee. Throughout the
Employment Period, Employee shall devote her efforts diligently and faithfully
on a full-time basis to the business and welfare of the Company in accordance
with and in furtherance of the policies and directives of the Board. Employee
will not engage in any activity which interferes with the performance of her
duties hereunder and in any case will not hold any part-time job or perform any
consulting services. Employee shall not be required to move her residence
outside of the Oklahoma City, Oklahoma, metropolitan area without her consent.
It is understood that Employee's primary responsibility hereunder will be
to manage the Company's two durable medical equipment offices in Oklahoma City
and Tulsa,
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Oklahoma, respectively. In the event the Company intends for Employee to
perform additional services for multiple locations in Oklahoma or other states,
then the Company agrees to compensate Employee for such additional services in
a manner to be agreed upon by the Company and Employee at such time.
2. COMPENSATION AND BENEFITS.
2.1 SALARY. The Company shall pay Employee a base salary (the "Base
Salary") during her employment at the rate of $80,000.00 per year, less such
deductions and withholdings as are required by law, payable in accordance with
the Company's standard payroll practices. Employee's Base Salary shall be
subject to annual reviews and such increases as the Company may determine in
its sole discretion from time to time.
2.2 BONUS. In addition to the Base Salary provided under Section 2.1,
the Company shall pay Employee a bonus (the "EBIT-A Bonus") based upon the net
earnings of the Company before interest, taxes and amortization ("EBIT-A") for
its fiscal year ending June 30, 1997, in accordance with the provisions of
EXHIBIT A attached hereto and incorporated herein by reference. The amount of
the EBIT-A Bonus, if any, shall be payable to Employee within 90 days after the
close of such fiscal year. The EBIT-A Bonus in subsequent fiscal years shall
be discretionary with the Company and subject to such period adjustments as the
Company may determine in its sole discretion from time to time.
2.3 BENEFITS. The Company shall provide Employee during the Employment
Period with substantially the same benefits as are generally provided other
executive employees of the Company.
2.4 EXPENSES. The Company shall reimburse Employee for reasonable
expenses incurred by her on behalf of the Company in the performance of her
services during her employment. Employee shall furnish the Company with the
documentation in connection with such expenses required by the Internal Revenue
Code and the regulations promulgated thereunder.
2.5 VACATION. During the Employment Period Employee shall be entitled to
four (4) weeks of paid vacation per year. All vacations shall be taken at such
time or times as are mutually convenient for Employee and the Company.
2.6 AUTOMOBILE. The Company shall furnish Employee during her employment
with the same automobile which Seller furnished to Employee prior to the date
hereof and which the Company acquired pursuant to the Asset Purchase Agreement
(the "Automobile"); PROVIDED, that following the expiration of the lease on the
Automobile, (a) Employee's entitlement to the use of a Company automobile will
be subject to the Company's standard policies regarding automobile usage, and
(b) Employee may then
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purchase the Automobile from the Company at the depreciated value thereof on
the Company's books.
3. NON-DISCLOSURE, NON-COMPETITION AND NON-INTERFERENCE.
3.1 NON-COMPETITION. Employee agrees that during the seven (7) year
period commencing on the date of this Agreement, she shall not directly or
indirectly, without the prior written approval of the Board, enter into the
employ of, render any services or assistance to, acquire any financial interest
in, or otherwise become associated in any way with any person or entity
("Competitor"), whether in the capacity of principal, agent, partner, officer,
director, employee, consultant, shareholder, or otherwise, which provides
pharmaceuticals, drugs, biologicals, medical devices, durable medical equipment
or other health or medical supplies to nursing homes or other institutional
care facilities in the states of Oklahoma, Ohio, Indiana, Pennsylvania,
Kentucky, Illinois, Wisconsin, Minnesota, Michigan, Maine, New Hampshire,
Massachusetts, Vermont, Connecticut, New York, New Jersey, Missouri, Iowa,
Kansas or Oregon, or to individuals residing in any such home or facility in
such geographic region. Nothing in this Section 3 shall prevent Employee from
being a member or officer of or from participating in the activities of any
trade or professional association, or from acquiring an equity interest in the
Company or any of its affiliates or an equity interest of less than one percent
(1%) in a Competitor whose shares are traded on a national securities exchange
or over-the-counter.
3.2 NON-DISCLOSURE. Employee agrees that she shall not directly or
indirectly disseminate verbally or in writing (except for such disclosure of
the terms of this Agreement and the Asset Purchase Agreement as may be required
to be made to Employee's legal or accounting advisors for purposes of rendering
consultation to Employee), or use for her personal benefit any Confidential
Information, regardless of how it may have been acquired, except for the
disclosure of such information as may be required by law, or authorized in
writing by the Board. Employee further agrees that upon termination of her
employment she will return promptly to the Company all memoranda, notes,
records, reports, manuals, and other documents (and all copies thereof)
relating to the Company's business which she may then possess or have under her
control. For purposes of this Agreement, "Confidential Information" means all
information relating to the terms and conditions of this Agreement or the Asset
Purchase Agreement or the transactions contemplated thereby 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
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extent such information is not intended by the Company to be disseminated to
the public or to other participants in its trade or business or is otherwise
not generally known to Competitors of the Company. Employee acknowledges that
all of the Confidential 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.
3.3 NON-INTERFERENCE. Employee agrees that she shall not at any time
during the term of this Agreement and for two (2) years thereafter induce,
attempt to induce, or assist others in inducing or attempting to induce any
employee, agent, customer, or supplier of the Company or any other person or
entity associated or doing business with the Company (or proposing to become
associated or to do business with the Company) to terminate his or its
relationship with the Company (or to refrain from becoming associated or doing
business with the Company) or in any other manner to interfere with the
relationship between the Company and any such person or entity.
3.4 NEW DEVELOPMENTS. Employee agrees that she 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, relating in any way to the Company's
business at the time, that are made or conceived by her alone or with others,
in whole or in part, during her employment and which were made or conceived in
whole or in part with the Company's resources or during Company time
(collectively referred to as the "New Developments"). Employee further agrees
that all such New Developments made or conceived in whole or in part with
Company resources or during Company time 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 all 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 and copyrights in the United States and
foreign countries on any New Development.
3.5 REMEDIES. If Employee commits or threatens to commit a breach of any
of the provisions of this Section 3, the Company shall have the right to have
the provisions of this Agreement specifically enforced by any court having
jurisdiction, it being acknowledged by Employee and agreed by the parties that
any such breach or threatened breach will cause injury to the Company for which
money damages along will not provide an adequate remedy. The rights and
remedies enumerated above shall be in addition to, and not in lieu of, any
other rights and remedies available to the Company at law or in equity.
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3.6 REFORMATION OF AGREEMENT. In the event that any of the covenants
contained in this Section 3, or any portion thereof, shall be found by a court
of competent jurisdiction to be invalid or unenforceable as against public
policy or for any other reason, such court shall exercise its discretion to
reform such covenant to the end that Employee shall be subject to
non-disclosure, non-interference and non-competition covenants that are
reasonable under the circumstances and are enforceable by the Company. In any
event, if any provision of this Agreement is found unenforceable for any
reason, such provision shall remain in force and effect to the maximum extent
allowable and all non-affected provisions shall remain fully valid and
enforceable.
3.7 EXPENSES OF ENFORCEMENT OF COVENANTS. In the event that any action,
suit, or other proceeding at law or in equity is brought to enforce any of the
covenants contained in this Section 3, or to obtain money damages for the
breach thereof, the party prevailing in any such action, suit or other
proceeding shall be entitled upon demand to reimbursement from the other party
for all expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred in connection therewith.
4. TERM.
4.1 MANNER OF TERMINATION. This Agreement may be terminated prior to the
end of the Employment Period, as follows:
(a) BY THE COMPANY FOR DISABILITY. At the option of and by 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 120 days
and which in the opinion of the Board renders the Employee unable to perform
her duties on an active, full-time basis.
(b) BY THE COMPANY FOR GOOD CAUSE. At the option of and by written
notice from the Company if the Board shall find "good cause" for termination,
which, for purposes of this Agreement, shall mean (i) a material breach by
Employee of her obligations under this Agreement or her fiduciary duties to the
Company, (ii) public conduct which in any manner offends against decency or
morality, (iii) repeated absenteeism, (iv) drug use or excessive alcohol
consumption on the part of Employee, or (v) if Employee fails, after notice and
a reasonable chance to cure, to observe the directives of the Board or its
designee to whom Employee reports.
(c) BY EMPLOYEE. By Employee upon not less than 120 days advance written
notice.
(d) DEATH. As of the end of the month in which Employee dies.
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4.2 CONSEQUENCES OF TERMINATION.
(a) IN GENERAL. Notwithstanding any provision in this Agreement to the
contrary, upon any termination of this Agreement, the provisions hereof will
survive such termination to the extent required so that (i) the Company may
enforce the obligations of Employee under Section 3, and (ii) Employee and the
Company may each enforce any obligations of the other which accrued hereunder
before, or because of, such termination. All other rights and obligations of
the parties hereunder will expire upon termination of this Agreement.
(b) SALARY CONTINUATION. If Employee's employment with the Company is
terminated by the Company before the fifth anniversary of the date hereof other
than pursuant to Section 4.1(a) or 4.1(b), the Company shall continue to pay to
Employee the Base Salary provided for in Section 2.1 during the remainder of
the Employment Period, and Employee shall continue to be bound by the covenants
contained in Section 3 in accordance with the terms thereof.
5. MISCELLANEOUS.
5.1 WAIVER. Failure of the Company at any time to enforce any provision
of this Agreement or to require performance by Employee of any provision hereof
shall in no way affect the validity of this Agreement or any part hereof or the
right of the Company thereafter to enforce its rights hereunder; nor shall it
be taken to constitute a condonation or waiver by the Company of that default
or any other or subsequent default or breach.
5.2 NOTICE. Any notice required to be given under the terms of this
Agreement shall be in writing and mailed to the recipient's last known address
or delivered in person. If sent by registered or certified mail such notice
shall be effective when mailed, otherwise, it shall be effective upon delivery.
5.3 ASSIGNMENT. Except as set forth herein, no rights of any kind under
this Agreement shall, without prior written consent of the Company, be
transferable to or assignable by Employee or any other person, or be subject to
alienation, encumbrance, garnishment, attachment, execution or levy of any
kind, voluntary or involuntary. This Agreement shall be binding upon and shall
inure to the benefit of the Company, its successors and assigns.
5.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
5.5 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an
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original, and all of which together shall constitute one and the same document.
5.6 HEADINGS. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
5.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement among the parties hereto concerning the subject
matter hereof. All negotiations among the parties hereto concerning the
subject matter hereof are merged into this Agreement, and there are no
representations, warranties, covenants, understandings or agreements, oral or
otherwise, in relation thereto among the parties hereto other than those
incorporated herein. The parties hereto acknowledge that the Company is a
party to, and this Agreement is made in conjunction with, the Asset Purchase
Agreement; and it is understood that nothing in this Agreement is intended to
modify the provisions of the Asset Purchase Agreement or any other agreement or
instrument contemplated therein. Nothing expressed or implied in this
Agreement is intended or shall be construed so as to grant or confer on any
person, firm or corporation other than the parties hereto any rights or
privileges hereunder. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties hereto.
INTENDING TO BE LEGALLY BOUND, the parties or their duly authorized
representatives have signed this Agreement on the date first written above.
NCS HEALTHCARE OF OKLAHOMA, INC.
(the "Company")
By: /s/ Kevin B. Shaw
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Title: President
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/s/ Gail Benjamin
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GAIL BENJAMIN ("Employee")
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