Exhibit 10.2
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[Omitted information is marked by an * and included
in a schedule at the end of this documents]
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of the day of * by and
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between, * , a (the "Company"), and
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* ("Employee").
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WITNESSETH:
WHEREAS, the Company desires to employ Employee on the terms
and conditions set forth in this Agreement, and Employee desires
to be so employed by the Company on such terms and conditions.
NOW, THEREFORE, in consideration of the premises, the
respective covenants and commitments of the parties hereto as set
forth in this Agreement and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment and Term. The Company agrees to employ
Employee and Employee agrees to accept such employment, on the
terms and conditions set forth herein, for an initial period
commencing on the date hereof and ending on the [3] anniversary
of the date hereof (the "Initial Term"). This Agreement shall be
automatically renewed for successive one year periods (each, a
"Renewal Term") subsequent to the expiration of the Initial Term;
provided, however, that either party may terminate this Agreement
upon the expiration of the Initial Term or a Renewal Term by
giving the other written notice of such termination not less than
60 days prior to the expiration of such Initial Term or Renewal
Term. Notwithstanding the foregoing, this Agreement may be
terminated by the Company "for cause" at any time immediately
upon notice to Employee. As used herein, the term "for cause"
shall mean; (i) the failure of Employee to diligently or
effectively perform his duties to the Company after written
notice of such failure and Employee's failure or refusal to
correct his performance to the Company's satisfaction within ten
(10) days after receipt of such notice; (ii) the engaging by
Employee in conduct which is injurious to the Company; (iii) the
conviction of Employee of a felony or other crime of moral
turpitude; or (iv) the engagement by Employee in misconduct or
dishonest conduct of a material nature the impugns the Employee's
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reputation in the community or impairs the performance by
Employee of his duties to the Company.
2. Duties.
(a) Employee shall assume and perform to the best of
his ability such reasonable responsibilities as shall be
assigned to him from time to time by the Board of Managing
Directors of the Company, but consistent with his title and
position with the Company.
(b) Employee's primary occupation shall be to act as
* of the Company. Employee shall devote
substantially all of his business and professional time,
effort, and attention to the business and affairs of the
Company to perform his duties hereunder.
3. Compensation. For the full, prompt, and faithful
performance of all of the duties and services to be performed by
Employee hereunder, including services as an officer and director
of the Company or a subsidiary: the Company shall pay Employee
base salary ("Base Salary") at a rate of $ *
per annum.
4. Expenses. Employee shall be entitled to reimbursement
for his ordinary and necessary business expenses incurred in the
performance of his duties under this Agreement if supported by
reasonable documentation as required by the Company in accordance
with its usual practices.
5. Benefits: Vacation. During the term of this Agreement,
Employee shall be entitled to such benefits as the Company may,
from time to time, make available to its employees generally
(including health, life and disability insurance), and such other
benefits as may be agreed upon from time to time by the Company
and Employee. Without limiting the generality of the foregoing,
Employee shall be entitled to the benefits afforded by all
benefit plans of the Company in which Employee qualifies for
participation. Employee shall be entitled to vacation annually
in accordance with the policies of the Company established from
time to time.
6. Certain Restrictions.
(a) The Employee covenants and agrees that the
Employee will not at any time during Employee's employment
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or thereafter, in any fashion, form or manner, either
directly or indirectly, except to the extent necessary to
carry out the Employee's responsibilities for the benefit of
the Company, use or divulge, disclose or communicate to any
person, firm, partnership, corporation or enterprise, in any
manner whatsoever, any information of any kind, nature or
description concerning any matters affecting or relating to
the business of the Company, including without limitation,
(i) research conducted by the Company in connection with
product development, manufacturing processes, product
designs or otherwise, (ii) the manufacturing methods or
processes used or under development by the Company for its
products, (iii) the nature or properties of the materials
used by the Company in its products, or products under
development, and supply sources of such materials, (iv) the
names of any of the Company's customers and the prices it
obtains or has obtained or for which it sells or has sold
its products or services, (v) contract relationships between
the Company and its customers and suppliers, (vi)
confidential business and financial data of the Company,
(vii) information pertaining to the Company's employees
(including, without limitation, information concerning
compensation and benefit programs), (viii) information
regarding the Company's costs, (ix) information about the
Company's products and anticipated new products, (x)
forecasts, plans, objectives, investments opportunities, and
long term business strategies and plans of the Company, and
(xi) any other information of, about or concerning the
business of the Company, its manner of operations, its
plans, processes or other data of any kind, nature or
description. The Employee and Company agree that the
foregoing information is important material and confidential
and substantially affects the successful conduct of the
business of the Company, and its goodwill, regardless
whether any or all of the foregoing matters would be deemed
to be "trade secrets" as defined by law. The Employee may
have occasion to learn other information as a consequence of
or through the Employee's employment with the Company, such
as information from or about suppliers, customers,
competitors and others. This information generally is
obtained by the Company by studying competitive products, by
requesting information from such other companies, by doing
various studies and the like. Such information in some
cases may not be proprietary to the Company but nevertheless
the Company learns such information in the course of its
business, keeps such information secret (because it is
costly and useful information), and legitimately uses such
information in connection with its business. The Employee
agrees the Employee will not use or disclose, or permit such
information to be disclosed or used except in furtherance of
the Employee's duties for the Company and agrees not to use
or disclose such information in violation of any obligations
or duties which the Employee or the Company has to any third
party. The parties agree that any breach of the terms of
this Section 6 (a) is a material breach of this Agreement.
The Company considers, and the Employee agrees that all such
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information is the Company's sole and exclusive property,
and the Employee agrees, to promptly deliver all such
information in tangible form as well as all other
correspondence, memoranda, notes, records, reports, plans,
customer lists and all other papers (and copies thereof) and
all electronically stored or computerized data to the
Company either upon the Company's request or upon any
termination of this Agreement. The Company agrees to
provide the Employee with access to and the right to use in
the performance of the Employee's duties to the Company
confidential, proprietary and other business information and
trade secrets described above in this Section 6 in
consideration of the covenants of the Employee of non-
disclosure and non-competition set forth in this Section 6.
(b) All "Inventions" made or conceived by the
Employee, solely or with others, while employed by the
Company, either during or after working hours, or within a
period of one (1) year after termination of the Employee's
employment, which are useful in or related to the business
of the Company or which have been made or conceived, wholly
or partially, with the use of the Company's time, materials
or facilities, shall belong exclusively to the Company. The
Employee agrees that the Employee shall have no claim for
additional compensation for such Inventions. The Employee
agrees promptly to disclose in accordance with the Company
procedures any such Invention promptly and fully by a
written report, setting forth in detail the structures,
procedures and methodology employed and the results
achieved. In addition, full reports and records shall be
kept in accordance with Company practices, during and on
completion of any study or research project undertaken on
the Company's behalf, whether or not in the Employee's
opinion a given study or project has resulted in an
Invention. For purposes hereof the term "Invention" means
any discovery, concept, idea, whether patentable or not,
relating to any present or prospective activities of the
Company, including but not limited to, devices, processes,
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methods, formulae, techniques, and any improvements to any
of the foregoing. The Employee hereby assigns and agrees to
assign to the Company all of the Employee's rights to such
Inventions and to all proprietary rights therein, based
thereon or related thereto, including but not limited to,
applications for the United States and foreign letters
patent and resulting letters patent. At the request of the
Company, either before or after termination of the
Employee's employment, the Employee shall assist the Company
in acquiring and maintaining patent protection upon and
confirming its title to such Inventions. The Employee's
assistance shall include the signing of applications for
patent assignments and other papers, and taking any other
steps considered desirable by the Company.
(c) Ancillary to, and in order to further assure that
the Employee will not violate the Employee's covenants of
non-disclosure of confidential, proprietary and other
business information of the Company set forth in Section 6
(a) hereof or the Employee's obligations respecting
Inventions under Section (b) hereof, and ancillary to the
rest of this Agreement and in consideration of each of the
foregoing, the Employee covenants and agrees that he will
not, at any time during the Employment Term or for a two (2)
year period after termination of the Employee's employment
for any reason, (i) employ, associate in any business
relationship with, endeavor to entice away from the Company
or its subsidiaries, or otherwise interfere with, any person
who was an employee of or consultant to the Company, or any
of its subsidiaries, during the twelve (12) month period
preceding such termination, or (ii) be employed by,
associated with or have any interest in, directly or
indirectly (whether as principal, director, officer,
employee, consultant, partner, stockholder, trustee, manager
or otherwise), any person or entity which produces, markets
sells or distributes * , or other
types of products developed, marketed, and/or sold by the
Company or its subsidiaries at the time of termination of
Employee's employment, in the Company's Geographic Market
Area (as defined herein). The term "Geographic Market Area"
shall mean any geographical area in which the Company or its
subsidiaries engages in business or in which any of them,
prior to termination of Employee's employment, evidenced in
writing its intention to engage in business.
Notwithstanding the foregoing, Employee shall not be
prohibited from (i) owning and acting as an employee, or
(ii) owning a de minimis amount of the outstanding equity
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securities of any entity whose equity securities are listed
on a national securities exchange or publicly traded in any
over-the-counter market.
(d) The Employee agrees to provide to any future
employer a copy of the covenants contained in this Section 6
and agrees that the Company may do so as well.
(e) During the term of the Employee's employment, the
Employee shall not do any act that is prohibited following
termination of the Employee's employment under Section 6.
(f) Both the Company's rights and the Employee's
duties under this Section 6 shall survive any termination of
this Agreement. If the Employee violates any covenant
contained in Section 6 of this Agreement, the Company shall
not, as a result of the time involved obtaining relief, be
deprived of the benefit of the full period of any such
covenant. Accordingly, the covenants of the Employee
contained in Section 6 shall be deemed to have the durations
specified therein, which periods shall commence upon the
later of (i) the termination of the Employee's employment
with the Company and (ii) the later to occur of (A) the date
of entry of a final judgment enforcing the covenants of the
Employee under Section 6, as the case may be or (B) the date
on which the Employee permanently ceases such violation.
(g) The Employee recognizes that the remedy of damages
for breach or threatened breach of the provisions of this
Section 6 would be inadequate and that the harm occasioned
by such breach would be irreparable, and accordingly, the
Employee expressly agrees that in the event of a breach or
threatened breach by the Employee of any of the provisions
of this Section 6, the Company will be entitled to an
injunction, without the requirement of posting bond,
restraining the Employee from violating the terms hereof, or
from rendering services to any person, firm, corporation,
association, or other entity to whom any confidential
information concerning or relating to the business of the
Company has been disclosed or may be threatened to be
disclosed, or for whom the Employee is working or rendering
services, or threatens to work or render services in
violation of the terms hereof. Nothing herein shall be
construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened
breach of this Section 6, including recovery of damages from
the Employee. The Employee's allegation of or the existence
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of any claim against the Company, under this Agreement or
otherwise, will not constitute a defense to the Company's
enforcement of this Section.
(i)
(1) The parties recognize and agree that it may be
difficult if not impossible for the Company to prove the
existence of a breach of the Employee's covenants of
confidentially and non-disclosure under Section 6 (a) of
this Agreement. The parties further recognize and agree
that the non-competition covenants contained in Section 6
(c) are necessary to support the legitimate business
interests of the Company in preserving the confidentiality
and secrecy of and control over such confidential
information and its business goodwill and are ancillary to,
supportive of, and a part of this Agreement, are ancillary
to the Company's undertaking to facilitate the Employee's
ownership interest in the Company, and are necessary as a
means of ensuring compliance by the Employee with such
confidentiality covenants.
(2) The existence of any claim or cause of action of
the Employee against the Company or any officer, director or
shareholder of the Company, that is predicated on this
Agreement or otherwise, shall not constitute a defense to
the enforcement by the Company of the covenants of the
Employee contained in this Section 6. In addition, the
provisions of this Section 6 shall continue to be binding
upon the Employee in accordance with their terms,
notwithstanding the termination of the Employee's employment
with the Company for any reason.
(3) The parties acknowledge and agree that the time,
scope, territory and other provisions of this Section 6 are
reasonable under the circumstances. The partied further
agree that if at any time despite the express agreement of
the parties hereto, it is held through enforcement
proceedings that any portion of Section 6 is unenforceable
by reason of its being too extensive in any respect, then it
shall be interpreted and reformed to extend only over the
maximum period of time for which it may be enforceable and
over the maximum geographical area as to which it may be
enforceable and to the maximum extent in all other respects
as to which it may be enforceable.
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7. Notices. Any notices provided for in this Agreement
shall be in writing and shall be deemed effectively given if
mailed, when sent by certified mail, postage prepaid, return
receipt requested, addressed to the party for whom intended at,
in the case of Employee, his address given on the signature page
hereto or, in the case of the Company, Joe B. Park Attn: Board of
Directors, or to such other address as either party may hereafter
designate for himself or itself by notice given to the other
party in the manner herein provided, or when actually received by
the party for whom intended, if sent by any other means.
8. Entire Agreement: Amendment: Waivers. This Agreement
constitutes the entire agreement and understanding between
Employee and the Company with respect to the subject matter
hereof and supersedes any prior employment agreement between
Employee and the Company and/or any of its subsidiaries or
affiliates. This Agreement shall not be modified or amended
except by an instrument in writing signed by the parties hereto.
No provision of this Agreement shall be waived, altered or
amended except in writing signed by the party against whom such
waiver, alteration or amendment is asserted. Any such waiver
shall be limited to the particular instance and the particular
time when and for which it is given.
9. Binding Effect: Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and Employee's heirs and legal representative and the Company's
successors and assigns.
10. Uniqueness of Services. Employee acknowledges that the
services to be rendered by him pursuant to this Agreement are of
a special, unique and extraordinary character and that it would
be difficult or impossible to replace such services, and that by
reason thereof employee agrees and consents that if he violates
any of the provisions of this Agreement, including without
limitation Section 8 hereof, the Company, in addition to any
other rights and remedies available under this Agreement or
otherwise, shall be entitled to an injunction to be issued by any
court of applicable jurisdiction restricting Employee from
committing or continuing any violation of this Agreement.
11. Partial Invalidity. The invalidity or unenforceability
as a result of or by statute, court decision or otherwise, of any
term or condition of this Agreement shall not affect the validity
or enforceability of any other term or condition hereof. If any
provision of Section 6 hereof is held to be unenforceable because
of the scope or duration of any such provision, the parties agree
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that any court making such determination shall have the power to
reduce the scope or duration of such provision and said provision
shall be enforceable in such reduced form.
12. Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the
State of Texas without giving effect to any conflict law
provisions thereof.
13. Captions. The caption headings in this Agreement are
for convenience of reference only and are not intended and shall
not be construed as having any substantive effect.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
*
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[Employee]
Address:
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[COMPANY]
*
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[Employee]
By:
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Its:
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Schedule of Information Omitted From Employment Contracts
Employee: Thomas R. Baker
Employer: Park Pharmacy Corporation
Date of Agreement: 8-6-00
Term: (a)
Position: President
Annual Base Salary (a)
Scope of Non-Competition: (b)
Other Terms N/A
Employee: James W. Moncrief
Employer: Park Pharmacy Corporation
Date of Agreement: 3-31-00
Term: 5 years
Position: Executive Vice President
Annual Base Salary $125,000
Scope of Non-Competition: [blank]
Other Terms (c)
Employee: John D. Sommerhalder
Employer: Rx-Pro.Com, Inc.
Date of Agreement: 4-17-00
Term: 3 years
Position: Executive Vice President and
Chief Financial Officer
Annual Base Salary $125,000
Scope of Non-Competition: (d)
Other Terms N/A
Employee: Richard M. Allen
Employer: Park Pharmacy Corporation
Date of Agreement: 1-1-00
Term: 3 years
Position: Chief Infusion Director
Annual Base Salary (e)
Scope of Non-Competition: Infusion Therapy
Other Terms (f)
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Employee: Joe Brayton
Employer: Rx-Pro.Com, Inc.
Date of Agreement: 4-1-00
Term: 2 years
Position: President
Annual Base Salary $125,000
Scope of Non-Competition: (g)
Other Terms (h)
(a) the will of Joe Park
(b) that in any way does business which affects Park/Dougherty's
(c) Mr. Moncrief's agreement also entitles him to receive
100,000 shares of Series A Preferred Stock
(d) Physician practice management and/or pharmacy service
systems
(e) $92,300, plus bonus equal to 15% of net profit generated by
infusion department payable quantity one half in cash and
one half in options
(f) Mr. Allen's agreement also entitles him to receive 100,000
shares of Park Pharmacy Corporation, and provides that if
his employment is involuntarily terminated in connection with,
or within twelve months after, a change of control (other
than for cause), he is to receive a lump sum payment equal
to 150% of his base salary for the previous calendar year.
(g) Internet based healthcare software or services or other
types of products developed, marketed and/or sold by Rx-
Pro.Com or its subsidiaries at the time of the termination
of employment.
(h) Mr. Brayton's agreement also entitles him to receive stock
options or warrants to acquire 1,000,000 shares of common
stock of Park Pharmacy Corporation.
