<PAGE> 1
================================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
<TABLE>
<S> <S>
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED,
EFFECTIVE OCTOBER 7, 1996)
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
</TABLE>
COMMISSION FILE NUMBER 0-19946
LINCARE HOLDINGS INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 51-0331330
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
19337 US 19 NORTH, SUITE 500 34624
CLEARWATER, FLORIDA (Zip Code)
(Address of principal executive office)
</TABLE>
Registrant's telephone number, including area code: (813) 530-7700
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: None
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Title of Class
Common Stock, $.01 par value per share
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. X Yes ___ No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the registrant's common stock, $.01 par
value, held by non-affiliates of the registrant, based on the closing sale price
of the common stock on February 28, 1997, as reported in the NASDAQ National
Market System, was approximately $1,222,528,890.
As of February 28, 1997, there were 28,348,496 outstanding shares of the
registrant's common stock, par value $.01, which is the only class of common
stock of the registrant.
DOCUMENTS INCORPORATED BY REFERENCE
The information called for by Part III is incorporated by reference to the
definitive Proxy Statement for the 1997 Annual Meeting of Stockholders of
Lincare Holdings Inc. which will be filed with the Securities and Exchange
Commission not later than 120 days after December 31, 1997.
================================================================================
<PAGE> 2
PART I
ITEM 1. BUSINESS
GENERAL
Lincare Holdings Inc. and subsidiaries ("Lincare" or the "Company") is one
of the nation's largest providers of oxygen and other respiratory therapy
services to patients in the home. The Company's customers typically suffer from
chronic obstructive pulmonary disease, such as emphysema, chronic bronchitis or
asthma, and require supplemental oxygen or other respiratory therapy services in
order to alleviate the symptoms and discomfort of respiratory dysfunction.
Lincare currently serves over 110,000 customers in 38 states through 261
operating centers.
On November 30, 1990, the Company acquired the outstanding capital stock of
Lincare Inc. (the "Buyout"). The Company was formed by investment partnerships
affiliated with the venture capital firms of Welsh, Carson, Anderson & Stowe and
Summit Partners, by Dean Witter Capital Corporation, and by members of the
Company's current management for the purpose of effecting the Buyout.
THE HOME RESPIRATORY MARKET
The Company estimates that the home respiratory therapy market (including
home oxygen equipment and respiratory therapy services) had revenues of
approximately $3.0 billion in 1996, having grown by an estimated 8% to 10% per
year over the last five years. This growth reflects the significant increase in
the number of persons afflicted with chronic obstructive pulmonary disease,
which is attributable, to a large extent, to the increasing proportion of the
population over the age of 65.
BUSINESS STRATEGY
The Company's strategy is to increase its market share through internal
growth and acquisitions. Lincare will focus primarily on growth within its
existing geographic markets, which the Company believes is generally more
profitable than adding additional operating centers in new markets. In addition,
the Company will expand into new geographic markets on a selective basis, either
through acquisitions or by opening new operating centers, when it believes such
expansion will enhance its business. In 1996, Lincare acquired 17 local and
regional competitors with combined annual revenue of approximately $44.0
million. These acquisitions established Lincare in two new states and expanded
its presence in the states where the Company had existing locations.
Revenue growth will be dependent upon the overall growth rate of the home
respiratory care market, as well as on opportunities to increase market share
through effective marketing efforts and selective acquisitions of local or
regional competitors. The Company believes that the growing cost containment
efforts of government and private insurance reimbursement programs and an
increasingly competitive environment have accelerated consolidation trends
within the home health care industry.
The Company will continue to concentrate on providing oxygen and other
respiratory therapy services to patients in the home and to provide home medical
equipment and other services where it believes such services will enhance the
Company's primary business. In 1996, oxygen and other respiratory therapy
services accounted for over 90% of the Company's revenues.
PRODUCTS AND SERVICES OF LINCARE
Lincare primarily provides oxygen and other respiratory therapy services to
patients in the home. Lincare also provides a variety of infusion therapies in
certain geographic markets. When a patient is referred to one of the Company's
operating centers by a physician, hospital discharge planner or other source,
the Company's customer representative obtains the necessary medical and
insurance coverage information and coordinates the delivery of patient care. The
prescribed therapy is administered by one of the Company's representatives in
the customer's home, where instructions and training are given to the customer
and the customer's family regarding appropriate equipment use and maintenance
and the therapy to be administered. Following the
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<PAGE> 3
initial setup, Company representatives make periodic visits to the customer's
home, the frequency of which is dictated by the type of therapy. The Company's
services are coordinated with the customer's physician. During the period that
the Company performs services for a customer, the customer remains under the
physician's care and medical supervision. The Company employs respiratory
therapists and nurses to perform certain training and other functions in
connection with the Company's services. The respiratory therapists and nurses
are licensed where required by applicable law.
HOME OXYGEN EQUIPMENT. The major types of oxygen delivery equipment are
liquid oxygen systems and oxygen concentrators. Each method of delivery has
different characteristics that make it more or less suitable to specific patient
applications.
Liquid oxygen systems are thermally insulated containers of liquid
oxygen, consisting of a stationary unit and a portable unit, which are most
commonly used by ambulatory patients.
Oxygen concentrators are stationary units that provide a continuous
flow of oxygen by filtering ordinary room air. Concentrators are most
commonly used by patients confined to the home or with only minimal
mobility.
OTHER RESPIRATORY THERAPY SERVICES. The other respiratory therapy services
of the Company consist primarily of:
Nebulizers and associated respiratory medications therapy provide
aerosol therapy;
Non-invasive ventilation provides nocturnal ventilatory support for
neuromuscular and chronic obstructive pulmonary disease patients. This
therapy improves daytime function and decreases incidents of acute illness;
and
Apnea monitors provide respiratory alarm systems for infants at risk
for sudden infant death syndrome;
Ventilators support respiratory function in severe cases of
respiratory failure where the patient can no longer sustain the mechanics
of breathing without the assistance of a machine.
Continuous positive airway pressure devices maintain open airways in
patients suffering from obstructive sleep apnea by providing airflow at
prescribed pressures during sleep;
Oximeters determine oxygen desaturation during exercise and sleep and
assess the effectiveness of oxygen and home respiratory modalities.
INFUSION THERAPY. Lincare provides a variety of infusion therapies
consisting primarily of:
Parenteral nutrition involves the intravenous feeding of
life-sustaining nutrients to patients with impaired or altered digestive
tracts or conditions that prohibit adequate oral nutritional support.
Intravenous antibiotic therapy is the infusion of anti-infective
medications into the patient's bloodstream for the treatment of a variety
of infectious diseases.
Enteral nutrition is administered to patients who cannot eat as a
result of an obstruction to the upper gastrointestinal tract or other
medical condition.
Chemotherapy is the administration of cytotoxic drugs to patients
suffering from various types of cancer.
Dobutamine infusions are provided to patients with chronic end stage
congestive heart failure that has not responded to standard drug therapy.
These patients require a long-term venous access device and frequent blood
chemistry monitoring.
Immune globulin (IVIG) therapy is utilized for a variety of immune
disorders such as B-cell and T-cell immune deficiency, acute infections,
post transplant immunodeficiency and burns.
Continuous pain management is the administration of analgesic drugs to
patients suffering from acute or chronic pain.
2
<PAGE> 4
Central catheter management provides monitoring and supplies to
patients requiring access via a peripherally inserted line into the
superior vena cava.
Through a limited number of operating centers, the Company provides home
sleep studies, prenatal care, and prosthetic care.
Lincare also supplies home medical equipment, such as hospital beds,
wheelchairs and other supplies that may be required by patients.
COMPANY OPERATIONS
Management. The Company is managed at the executive level as a portfolio
of local businesses. Decentralization of managerial decision-making enables the
Company's operating centers to respond promptly and effectively to local market
demands and opportunities. The Company believes that the personalized nature of
customer requirements and referral relationships characteristic of the home
health care business mandates the Company's localized operating structure.
Each of the Company's 261 operating centers is managed by a center manager
who has responsibility and accountability for the operating and financial
performance of the center. Service and marketing functions are performed at the
local operating level, while strategic development, financial control and
operating policies are administered at the executive level. Reporting mechanisms
are in place at the operating center level to monitor performance and ensure
field accountability.
A regional management layer consisting of 31 area managers directly
supervises individual operating center managers, serving as an additional
mechanism for assessing and improving performance of the Company's operations.
The Company's operating centers are served by twelve billing centers which
control all the Company's billing and reimbursement functions.
MIS Systems. The Company believes that the proprietary management
information systems developed by the Company are one of its key competitive
advantages and provide management with a critical asset in measuring and
evaluating performance levels throughout the Company. Management reviews monthly
reports containing information critical to the evaluation process, including
revenues and profitability by individual center, accounts receivable and cash
collection management, equipment controls and utilization, customer activity,
and manpower trends. The Company has a staff of eleven full-time computer
programmers which permits the Company to continually enhance its computer
systems in order to provide timely financial and operational information and to
respond promptly to changes in reimbursement regulations and policies.
Accounts Receivable Management. The Company derives a majority of its
revenues from reimbursement by third party payors. The Company accepts
assignment of insurance benefits from customers and in most instances invoices
and collects payments directly from Medicare, Medicaid and private insurance
carriers, as well as directly from customers under co-insurance provisions. The
following table sets forth, for the period indicated, the Company's payor mix.
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
PAYORS 1996
------ ------------
<S> <C>
Medicare and Medicaid programs.............................. 61%
Private insurance........................................... 27
Direct payment.............................................. 12
---
100%
===
</TABLE>
Reimbursement is a complicated process which involves submission of claims
to multiple payors, each having its own claims requirements. To operate
effectively in this environment, the Company has designed and implemented
proprietary computer systems to decrease the time required for the submission
and processing of third party payor claims. The Company's systems are capable of
tailoring the submission of claims to the specifications of the individual
payors. The Company's in-house MIS capability also enables it to adjust quickly
to any regulatory or reimbursement changes. These features serve to decrease the
processing time of
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<PAGE> 5
claims by payors, resulting in a more rapid turnover of accounts receivable. In
addition, the Company is capable of submitting claims electronically to any
Medicare carrier or other third party payor that can receive electronic claims
submissions.
The Company's net accounts receivable in terms of days sales outstanding
was 48 days as of December 31, 1996 and 44 days as of December 31, 1995.
SALES AND MARKETING
Favorable trends affecting the U.S. population and home health care have
created an environment which should produce increasing demand for the services
provided by Lincare. The average age of Americans is increasing, and as a person
ages more health care services are required. The well-documented major
structural changes going on in health care are moving more services into the
home and out of institutions.
Sales activities are generally carried out by the Company's full-time sales
representatives located at the Company's operating centers with assistance from
the center managers. In addition to promoting the high quality of the Company's
services, the sales representatives are trained to provide information
concerning the advantages of home respiratory care. Sales representatives are
often licensed respiratory therapists who are highly knowledgeable in the
provision of supplemental oxygen.
The Company primarily acquires new customers through referrals. The
Company's principal sources of referrals are physicians, hospital discharge
planners, prepaid health plans, clinical case managers and nursing agencies. The
Company's sales representatives maintain continual contact with these medical
professionals in order to strengthen these relationships.
The Company's current base of referral sources provides a steady flow of
customers in recognition of the Company's reputation for providing high-quality
service to patients. While the Company views its referral sources as fundamental
to its business, no single referral source accounts for more than 1.0% of the
Company's revenues. The Company has more than 110,000 active customers, and the
loss of any single customer or group of customers would not materially impact
the Company's business.
Joint Commission on Accreditation of Healthcare Organizations,
("JCAHO"). The Company has received accreditation from the JCAHO, a private
not-for-profit organization that has established voluntary standards for the
provision of home health care services, for all its operating centers.
Accreditation by the JCAHO represents a marketing benefit to the Company's
operating centers and provides for a recognized quality assurance program
throughout the Company. The Company anticipates that referral sources may in the
future require accreditation as a prerequisite to referring patients to
individual home health care companies. Several proposals have been made to
require health care providers to be accredited or licensed by independent
agencies in order to participate in government reimbursement programs, and such
a requirement has been adopted by certain private payors.
RECENT ACQUISITIONS
In 1996, the Company acquired, in unrelated acquisitions, certain operating
assets of 8 local and regional competitors, the common stock of 7 companies and,
in two separate transactions, the common stock and certain assets of two related
companies and the common stock and certain assets of three related companies.
The operations acquired in 1996 had aggregate annualized revenues of
approximately $44.0 million at the time of acquisition. These acquisitions
resulted in the addition of 30 new operating centers.
In 1995, the Company acquired, in unrelated acquisitions, certain operating
assets of 10 local and regional competitors, the common stock of 10 companies
and, in two separate transactions, certain assets of two related companies and
substantially all of the assets of a single company and eight of its
wholly-owned subsidiaries. The operations acquired in 1995 had aggregate
annualized revenues of approximately $45.0 million at the time of acquisition.
These acquisitions resulted in the addition of 27 new operating centers.
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<PAGE> 6
QUALITY CONTROL
The Company is committed to providing consistently high quality products
and services. The Company's quality control procedures are designed to promote
greater responsiveness and sensitivity in dealing with individual customer needs
and to provide the highest level of quality assurance and convenience to the
referring physician. Licensed respiratory therapists and registered nurses
provide professional health care support and assist in the Company's sales and
marketing efforts.
SUPPLIERS
The Company purchases its oxygen and equipment needs from a variety of
suppliers. The Company is not dependent upon any single supplier and believes
that its oxygen and equipment needs can be provided by several manufacturers.
COMPETITION
The home respiratory care market is a fragmented and highly competitive
market that is served by the Company and other national providers and, the
Company estimates, by over 2,000 regional and local companies.
The quality of service is the single most important competitive factor
within the home respiratory care market. The relationships between a home
respiratory care company and its customers and referral sources are highly
personal. There is no incentive for either the physician or the patient to alter
this relationship so long as the home respiratory care company is providing
responsive, professional and high-quality service. Other key competitive factors
are strength of local ties to the referral community and efficiency of
reimbursement and accounts receivable management systems.
Home respiratory care companies normally compete based on service.
Reimbursement levels are established by the fee schedules promulgated by
Medicare, Medicaid or by the individual determinations of private insurance
companies. Furthermore, marketing efforts by home respiratory care companies are
directed toward referral sources which do not share financial responsibility for
the payment of services provided to customers.
MEDICARE REIMBURSEMENT
As a supplier of home oxygen and other respiratory therapy services for the
home health care market, the Company participates in Medicare Part B, the
Supplementary Medical Insurance Program, which was established by the Social
Security Act of 1965. Suppliers of home oxygen and other respiratory therapy
services have historically been heavily dependent on Medicare reimbursement due
to the high proportion of elderly suffering from respiratory disease.
Congress enacted legislation passed as part of the 1987 Omnibus Budget
Reconciliation Act ("OBRA 1987") that significantly changed reimbursement for
home oxygen, respiratory therapy services and home medical equipment. This
legislation changed reimbursement from charge-based pricing by individual
suppliers to a single price for each item paid to all suppliers within each
Medicare carrier's jurisdiction. Under the provisions of OBRA 1987, home oxygen
equipment is generally reimbursed at a set single monthly payment amount,
regardless of the type of oxygen equipment provided. OBRA 1987 also defined
whether certain home medical equipment would be paid for on a rental or sale
basis and established a 15 month rental payment ceiling on certain home medical
equipment.
The 1990 Omnibus Budget Reconciliation Act ("OBRA 1990") provided that the
fee schedules established under OBRA 1987 were to be adjusted annually at a rate
equal to the change in the Consumer Price Index less 1 percent through December
31, 1992, and increased by the Consumer Price Index in 1993. OBRA 1990 also made
new changes to Medicare Part B reimbursement which were implemented in 1991.
These changes included a national standardization of Medicare rates for certain
equipment categories, as well as reductions in amounts paid for home medical
equipment rentals.
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<PAGE> 7
On August 10, 1993, Congress passed the Omnibus Reconciliation Act of 1993
("OBRA 93") which required changes to be made effective January 1, 1994, in the
Medicare reimbursement of certain items of home medical equipment. The Company
estimates that these Medicare price changes resulted in a revenue reduction of
approximately $4,100,000 for the year ended December 31, 1994. The OBRA 93
legislation provided for a consumer price index update, effective January 1,
1996 and 1995, which the company estimates increased revenue by $4,900,000 and
$3,100,000 respectively. A Medicare fee schedule update of 2.8% has been
established effective January 1, 1997.
In December 1995, President Clinton vetoed the Balanced Budget Act of 1995
(H.R. 2491), which had been passed by Congress on November 30, 1995. The bill
included reductions in the rate of growth of Medicare and Medicaid spending,
along with significant tax reductions. The proposal included a $2.5 billion
reduction to the home oxygen benefit out of a total seven-year program budget of
$10.2 billion. President Clinton subsequently offered an alternative seven-year
balanced budget proposal which included home oxygen program reductions of $1.4
billion over the seven year period. Ultimately no agreement was reached
regarding Medicare oxygen payment reductions for fiscal years 1996 and 1997.
Continuing efforts between Congress and the Administration to reach
agreement on a budget have produced lower proposed reductions in Medicare and
Medicaid spending. At this time, it is uncertain whether any budget agreement
will be reached in 1997 for fiscal year 1998.
Federal and state budgetary and other cost-containment pressures will
continue to impact the home respiratory care industry. The Company cannot
predict what new federal and state budgetary proposals will be adopted and, if
adopted, what effect, if any, such proposals would have on the Company's
business.
GOVERNMENT REGULATION
The federal government and all states in which the Company currently
operates regulate various aspects of its business. In particular, the Company's
operating centers are subject to federal laws covering the repackaging and
dispensing of drugs (including oxygen) and regulating interstate motor-carrier
transportation. The Company's locations also are subject to state laws
governing, among other things, pharmacies, nursing services and certain types of
home health agency activities. Certain of the Company's employees are subject to
state laws and regulations governing the ethics and professional practice of
respiratory therapy, pharmacy and nursing.
As a supplier of services under the Medicare and Medicaid programs, the
Company is subject to the Medicare and Medicaid fraud and abuse laws. These
laws, among other things, prohibit any payment, kickback or rebate in return for
the referral of Medicare or Medicaid patients. Violations of these provisions
may result in civil and criminal penalties and exclusion from participation in
the Medicare and Medicaid programs.
Health care is an area of rapid regulatory change. Changes in the law or
new interpretations of existing laws can have an effect on permissible
activities, the relative costs associated with doing business, and the amount of
reimbursement by government and third party payors. The Company cannot predict
the future course of federal, state and local regulation or legislation,
including Medicare and Medicaid statutes and regulations, and of possible
changes in national health care policies, including those pertaining to managed
care organization, which are currently the focus of national political
discussion. Future legislative and regulatory changes could have an adverse
impact on the Company.
INSURANCE
The Company currently has in force general liability and product liability
insurance, each with a coverage limit of $10.0 million. In addition, the Company
has professional liability insurance with a coverage limit of $1.0 million per
occurrence and $3.0 million in the aggregate. The Company's product liability
insurance provides coverage on a claims-made basis, while its general and
professional liability insurance are on an occurrence basis. All policies are
subject to annual renewal and the Company anticipates adequate amounts of
insurance coverage to be available at such renewal dates.
6
<PAGE> 8
EMPLOYEES
As of February 28, 1997, the Company had approximately 2,800 employees.
None of the Company's employees are currently covered by collective bargaining
agreements. The Company believes that the relations between the Company's
management and its employees are good.
ENVIRONMENTAL MATTERS
Management believes that the Company is currently in compliance in all
material aspects with applicable federal, state and local statutes and
ordinances regulating the discharge of materials into the environment.
Management does not believe it will be required to expend any material amounts
in order to remain in compliance with these laws and regulations or that
compliance will materially affect its capital expenditures, earnings or
competitive position.
ITEM 2. PROPERTIES
All but one of the Company's 261 operating center locations are under third
party lease arrangements. Each operating center is a combination warehouse and
office, with warehouse space generally comprising approximately 50% of the
facility. Warehouse space is used for storage of adequate supplies of equipment
necessary to conduct the Company's business. The Company also leases a
headquarters facility and 11 of its 12 separate billing centers.
ITEM 3. LEGAL PROCEEDINGS
In October 1996, the Company resolved with the United States Attorney for,
the Middle District of Florida an investigation that had been pending since
1991. The United States Attorney had been investigating certain services
provided by the Company to a pharmacy that supplied medications to home
respiratory patients. Under its contracts with the pharmacy, the Company was
responsible for providing various marketing, field administration and patient
services to the pharmacy. The contracts were in effect from February 1989 to
April 1992, and accounted for less than one percent of the Company's revenues
during such period. As part of its settlement with the United States Attorney,
the Company, without admitting any wrongdoing or liability, has agreed to pay $1
million to the United States Government.
The Company is also involved in certain other claims and legal actions
arising in the ordinary course of business. In the opinion of the Company, the
ultimate disposition of all matters will not have a material adverse impact on
the Company's financial position, results of operations or liquidity.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's stockholders during
the fourth quarter of 1996.
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock is traded on the NASDAQ National Market System
under the symbol LNCR. The following table sets forth the high and low closing
sale prices as reported by NASDAQ for the periods indicated.
<TABLE>
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
1996
First quarter............................................... $34.00 $24.75
Second quarter.............................................. 43.50 32.75
Third quarter............................................... 42.25 36.00
Fourth quarter.............................................. 42.88 35.25
1995
First quarter............................................... $31.25 $24.25
Second quarter.............................................. 35.25 25.25
Third quarter............................................... 35.25 23.25
Fourth quarter.............................................. 28.50 21.00
</TABLE>
There were approximately 254 holders of record of the common stock as of
February 28, 1997.
The Company has not paid any cash dividends on its capital stock and does
not anticipate paying cash dividends in the foreseeable future. It is the
present intention of the Company's Board of Directors to retain all earnings in
the Company in order to support the future growth of the Company's business.
ITEM 6. SELECTED FINANCIAL DATA
The selected consolidated financial data presented below under the caption
"Statements of Operations Data" for the years ended December 31, 1996, 1995,
1994, 1993, and 1992 are derived from the consolidated financial statements of
the Company, which consolidated financial statements have been audited by KPMG
Peat Marwick LLP, independent certified public accountants.
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The data set forth below are qualified by reference to, and should be read
in conjunction with, the consolidated financial statements and related notes
thereto and Management's Discussion and Analysis of Financial Condition and
Results of Operations included in this report.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------------
1996 1995 1994 1993 1992
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
Net revenues....................... $348,870 $274,800 $201,142 $154,506 $117,403
Cost of goods and services......... 53,711 41,329 29,058 21,115 16,215
Operating expenses................. 75,158 60,272 44,347 34,388 28,475
Selling, general and administrative
expenses......................... 71,259 57,275 43,249 34,623 28,354
Bad debt expense................... 3,472 2,190 1,546 1,832 1,591
Depreciation expense............... 20,790 16,511 13,403 11,764 10,143
Amortization expense............... 13,128 11,099 7,281 4,695 5,125
Non-recurring expense(1)........... 3,932 1,921 -- -- --
-------- -------- -------- -------- --------
Operating income................... 107,420 84,203 62,258 46,089 27,500
Interest income.................... 153 294 434 611 465
Interest expense................... 497 892 473 387 1,242
Gain (loss) on disposal of property
and equipment.................... (80) 68 101 233 16
-------- -------- -------- -------- --------
Income before income taxes and
extraordinary loss............... 106,996 83,673 62,320 46,546 26,739
Income tax expense................. 40,422 32,634 24,367 18,294 10,600
-------- -------- -------- -------- --------
Income before extraordinary loss... $ 66,574 51,039 37,953 28,252 16,139
Extraordinary loss, net of
taxes(2)......................... -- -- -- -- (1,000)
-------- -------- -------- -------- --------
Net income available for common.... $ 66,574 $ 51,039 $ 37,953 $ 28,252 $ 15,139
======== ======== ======== ======== ========
Income per common share:
Income before extraordinary
loss.......................... $ 2.31 $ 1.79 $ 1.34 $ 1.01 $ .64
======== ======== ======== ======== ========
Net income....................... $ 2.31 $ 1.79 $ 1.34 $ 1.01 $ .60
======== ======== ======== ======== ========
Weighted average common and common
equivalent shares outstanding.... 28,876 28,576 28,307 27,911 25,334
======== ======== ======== ======== ========
</TABLE>
- ---------------
(1) In 1996 the Company recorded a non-recurring expense of $3,932,000 of which
$2,682,000 is related to the restructuring of certain senior management
employment agreements and $1,250,000 is related to the resolution of an
investigation. In 1995 the Company recorded a non-recurring expense of
$1,921,000 related to the abandoned merger between the Company and Coram
Healthcare Corporation. Such non-recurring expense is comprised of (a)
$1,448,000 of professional fees, (b) $199,000 of printing and mailing
expenses, (c) $153,000 filing fees, and (d) $121,000 of other direct costs.
(2) Upon the prepayment of the Company's senior and subordinated debt with the
proceeds of the Company's March 1992 initial public offering, the Company
recorded an extraordinary loss, net of taxes, of $1,000,000, attributable
to (i) a prepayment premium ($300,000), (ii) unamortized loan origination
fees related to the senior debt ($990,000) and (iii) unamortized discount
on the subordinated debt ($357,000).
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<PAGE> 11
<TABLE>
<CAPTION>
AT DECEMBER 31,
----------------------------------------------------
1996 1995 1994 1993 1992
-------- -------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital............................. $ 23,633 $ 16,510 $ 18,517 $ 35,642 $ 26,134
Total assets................................ 347,408 260,206 195,778 147,084 108,024
Long-term obligations and revolving credit
loan, excluding current installments...... 8,234 7,383 6,717 7,512 6,233
Stockholders' equity........................ 299,248 221,383 162,088 117,058 82,435
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL
The Company continues to pursue its strategy of focusing on increasing
market share within its existing geographical markets, through internal growth
and through selective acquisitions of regional or local competitors. In
addition, the Company will continue to expand into new geographical markets on a
selective basis, either through acquisitions or by opening new operating
centers, when the Company believes it will enhance its business.
The Company's focus remains primarily on oxygen and other respiratory
therapy services, and it intends to expand its home infusion therapy services in
1997.
NET REVENUES
The following table sets forth for the periods indicated a summary of the
Company's net revenues by source:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------
1996 1995 1994
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Oxygen and other respiratory therapy................... $316,816 $250,287 $184,927
Home medical equipment and other....................... 32,054 24,513 16,215
-------- -------- --------
Total........................................ $348,870 $274,800 $201,142
======== ======== ========
</TABLE>
Net revenues for the year ended December 31, 1996 increased by $74,070,000
(or 27.0%) over 1995. Net revenues for the year ended December 31, 1995
increased by $73,658,000 (or 36.6%) over 1994. The increases are attributable to
the Company's sales and marketing efforts that emphasize quality and customer
service, and the effect of the acquisitions completed by the Company. The
Company estimates that approximately $37,905,000 of the increase in revenues for
year ended December 31, 1996, and $40,627,000 of the increase in revenues for
the year ended December 31, 1995, were attributable to the acquired businesses.
Approximately $31,265,000 of the net revenue increase for the year ended
December 31, 1996 and $29,931,000 for the year ended December 31, 1995, was
attributable to volume growth in the Company's business.
On August 10, 1993, Congress passed the Omnibus Reconciliation Act of 1993
("OBRA 93") which required changes to be made effective January 1, 1994, in the
Medicare reimbursement of certain items of home medical equipment. The Company
estimates that these Medicare price changes resulted in a revenue reduction of
approximately $4,100,000 for the year ended December 31, 1994. The OBRA 93
legislation provided for a consumer price index update, effective January 1,
1996 and 1995, which the company estimates increased revenue by $4,900,000 and
$3,100,000, respectively. A Medicare fee schedule update of 2.8% has been
established effective January 1, 1997.
In December 1995, President Clinton vetoed the Balanced Budget Act of 1995
(H.R. 2491), which had been passed by Congress on November 30, 1995. The bill
included reductions in the rate of growth of Medicare and Medicaid spending,
along with significant tax reductions. The proposal included a $2.5 billion
reduction to the home oxygen benefit out of a total seven-year program budget of
$10.2 billion. President
10
<PAGE> 12
Clinton subsequently offered an alternative seven-year balanced budget proposal,
which included home oxygen program reductions of $1.4 billion over the seven
year period. Ultimately no agreement was reached regarding Medicare oxygen
payment reductions for fiscal years 1996 and 1997.
Continuing efforts between Congress and the Administration to reach
agreement on a budget have produced lower proposed reductions in Medicare and
Medicaid spending. At this time, it is uncertain whether any budget agreement
will be reached in 1997 for fiscal year 1998.
COST OF GOODS AND SERVICES
Cost of goods and services as a percentage of net revenues was 15.4% for
the year ended December 31, 1996 and was 15.0% and 14.4% for the years ended
December 31, 1995 and 1994, respectively. The increase in 1996 and 1995 is
attributable to a change in the product mix related to acquisitions having
higher levels of home medical equipment and certain respiratory therapy
products.
OPERATING AND OTHER EXPENSES
Operating expenses for the year ended December 31, 1996 decreased to 21.5%
of net revenues, compared to 21.9% and 22.0% for the years ended December 31,
1995 and 1994, respectively.
Selling, general and administrative expenses expressed as a percentage of
net revenues decreased to 20.4% for the year ended December 31, 1996 compared
with 20.8% and 21.5% for the years ended December 31, 1995 and 1994,
respectively. This improvement is primarily due to the Company's ability to
maintain a cost structure that, with increases in net revenues, has permitted
the Company to spread its overhead over a larger base of revenues, resulting in
improvement in operating income.
Bad debt expense as a percentage of net revenues was 1.0% for the year
ended December 31, 1996 and 0.8% for the years ended December 31, 1995 and 1994.
The Company's increased depreciation expense reflects increased capital
expenditures primarily for additional oxygen equipment to service the Company's
growing customer base. Depreciation expense as a percentage of net revenues
decreased to 6.0% for the years ended December 31, 1996 and 1995 compared with
6.7% for the year ended December 31, 1994.
AMORTIZATION EXPENSE
The Company's net intangible assets were $198,162,000 as of December 31,
1996. Of this total, $8,867,000 (consisting of the value assigned to customer
lists) is being amortized over a period of 36 months, $4,478,000 (consisting of
various covenants not to compete) over a period of three to five years, and
$184,817,000 (consisting of goodwill) over a period of 40 years.
During 1996, the Company amortized $13,128,000 of its intangible assets
compared to $11,099,000 in 1995 and $7,281,000 in 1994.
OPERATING INCOME
As shown in the table below, operating income before non-recurring expense
for the year ended December 31, 1996 increased by $25,228,000 over 1995. The
Company recorded a non-recurring expense of $3,932,000 relating to the
restructuring of certain senior management employment agreements and the
resolution of an investigation. Operating income before non-recurring expense
for the year ended December 31, 1995 increased by $23,866,000 over 1994. The
Company recognized a non-recurring charge of $1,921,000 related to the Company's
abandoned merger with Coram Healthcare Corporation. The percentage
11
<PAGE> 13
increases in operating income are attributable to the Company's continued
revenue growth, while maintaining effective cost controls over expenses.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------
1996 1995 1994
-------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Operating income before non-recurring expense............... $111,352 $86,124 $62,258
Percentage of net revenues.................................. 31.9% 31.3% 31.0%
</TABLE>
INTEREST EXPENSE
Interest expense for the year ended December 31, 1996 was $497,000,
compared to $892,000 and $473,000 for the years ended December 31, 1995 and
1994, respectively. The decrease in expense is attributed to a lower revolving
credit loan balance throughout 1996 as compared to 1995.
INCOME TAXES
The Company's effective income tax rate was 37.8% for the year ended
December 31, 1996, 39.0% for 1995 and 39.1% for 1994. The Company expects the
effective tax rate for 1997 to be 38.5%.
ACQUISITIONS
For a description of business combinations entered into by the Company
during 1996 and 1995, see "Business -- Recent Acquisitions" and Note 13 to the
Consolidated Financial Statements.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1996, the Company's working capital was $23,633,000, as
compared to $16,510,000 at December 31, 1995, and $18,517,000 at December 31,
1994.
Net cash provided by operating activities was $106,883,000 for the year
ended December 31, 1996, compared with $79,523,000 for the year ended December
31, 1995, and $66,018,000 for the year ended December 31, 1994. A significant
portion of the Company's assets consists of accounts receivables from third
party payors that provide reimbursement for the services provided by the
Company. Because of the Company's ability to collect its accounts receivable on
a timely basis, the Company has not been required to obtain interim financing of
its accounts receivable to satisfy operating needs.
Net cash used in investing and financing activities amounted to
$106,351,000, $94,537,000 and $79,733,000 for the years ended December 31, 1996,
1995 and 1994, respectively. Activity in the year ended December 31, 1996
included the Company's investment of $64,764,000 in business acquisitions,
investment in capital equipment of $38,241,000, the borrowing of $58,000,000
from its revolving line of credit, payments of $54,000,000 on the revolving line
of credit and payments of $11,772,000 related to long-term obligations.
As of December 31, 1996, the Company's principal sources of liquidity
consisted of $23,633,000 of working capital and $41,000,000 available under its
revolving line of credit. On February 10, 1995, the Company increased the amount
it may borrow under the revolving line of credit from $25,000,000 to
$50,000,000. The Company believes that internally generated funds, together with
funds that may be borrowed under such credit facility, will be sufficient to
meet the Company's anticipated capital requirements over the foreseeable future.
The Company anticipates that capital expenditures for 1997 will be
approximately $45,000,000 and that over the next several years its capital
expenditure requirements will grow no faster than the growth in the Company's
revenue. The Company believes that it will be able to generate sufficient funds
internally to meet its short-term and long-term capital expenditure
requirements.
The Company's future liquidity will continue to be dependent upon its
operating cash flow and management of accounts receivable. Additionally, the
Company is not aware of any impact on liquidity due to pending litigation
arising in the ordinary course of business.
12
<PAGE> 14
INFLATION
The Company has not experienced large increases in either the cost of
supplies or operating expenses due to inflation. Because of restrictions on
reimbursement by government and private medical insurance programs and the
pressures to contain the growth in the costs of such programs, the Company bears
the risk that reimbursement rates set by such programs will not keep pace with
inflation.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements required by this item are listed in Item 14(1)(a)
and are submitted at the end of this Annual Report on Form 10-K. The
supplementary data required by this Item is included on page S-1. The financial
statements and supplementary data are herein incorporated by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The response to this item is included in the definitive proxy statement,
under "Information Regarding the Board of Directors" for the Annual Meeting of
Stockholders to be held May 12, 1997, and is herein incorporated by reference.
ITEM 11. EXECUTIVE COMPENSATION
The response to this item is included in the definitive proxy statement,
under "Executive Compensation" for the Annual Meeting of Stockholders to be held
May 12, 1997, and is herein incorporated by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The response to this item is included in the definitive proxy statement
under "Security Ownership of Principal Stockholders and Management" for the
Annual Meeting of Stockholders to be held May 12, 1997, and is herein
incorporated by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) (1) The following consolidated financial statements of Lincare Holdings
Inc. and subsidiaries are filed as part of this Form 10-K starting at page F-1:
Independent Auditors' Report
Consolidated Balance Sheets -- December 31, 1996 and 1995
Consolidated Statements of Operations -- Years ended December 31,
1996, 1995 and 1994.
Consolidated Statements of Stockholders' Equity -- Years ended
December 31, 1996, 1995 and 1994
Consolidated Statements of Cash Flows -- Years ended December 31,
1996, 1995 and 1994
13
<PAGE> 15
Notes to Consolidated Financial Statements
(2) The following consolidated financial statement schedule of Lincare
Holdings Inc. and subsidiaries is included in this Form 10-K at page S-1:
Schedule VIII -- Valuation and Qualifying Accounts
All other schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable, and therefore
have been omitted.
(3) Exhibits included or incorporated herein:
See Exhibit Index.
(b) The Company did not file a Current Report on Form 8-K during the three
months ended December 31, 1996.
14
<PAGE> 16
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
LINCARE HOLDINGS INC.
/s/ JAMES M. EMANUEL
--------------------------------------
James M. Emanuel
Secretary, Chief Financial and
Principal Accounting Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE POSITION DATE
--------- -------- ----
<C> <S> <C>
/s/ JAMES T. KELLY Chairman of the Board March 25, 1997
- ------------------------------------------------
James T. Kelly
/s/ JAMES M. EMANUEL Director, Chief Financial and March 25, 1997
- ------------------------------------------------ Principal Accounting Officer
James M. Emanuel
/s/ CHESTER B. BLACK Director March 25, 1997
- ------------------------------------------------
Chester B. Black
/s/ FRANK T. CARY Director March 25, 1997
- ------------------------------------------------
Frank T. Cary
/s/ HOWARD R. DEUTSCH Director March 25, 1997
- ------------------------------------------------
Howard R. Deutsch
/s/ ANDREW M. PAUL Director March 25, 1997
- ------------------------------------------------
Andrew M. Paul
/s/ THOMAS O. PYLE Director March 25, 1997
- ------------------------------------------------
Thomas O. Pyle
</TABLE>
15
<PAGE> 17
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
Lincare Holdings Inc.:
We have audited the consolidated financial statements of Lincare Holdings
Inc. and subsidiaries as listed in the index on page 13. In connection with our
audits of the consolidated financial statements, we also have audited the
financial statement schedule listed in the index on page 13. These consolidated
financial statements and financial statement schedule are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
consolidated financial statements and financial statement schedule based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Lincare
Holdings Inc. and subsidiaries as of December 31, 1996 and 1995, and the results
of their operations and their cash flows for each of the years in the three-year
period ended December 31, 1996, in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedule, when
considered in relation to the basic consolidated financial statements taken as a
whole, presents fairly, in all material respects, the information set forth
therein.
KPMG PEAT MARWICK LLP
St. Petersburg, Florida
January 21, 1997
F-1
<PAGE> 18
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1996 AND 1995
<TABLE>
<CAPTION>
1996 1995
---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 1,541 $ 1,009
Accounts and notes receivable (note 2).................... 51,090 36,610
Income taxes receivable................................... 187 772
Inventories............................................... 1,689 1,299
Prepaid expenses.......................................... 466 674
-------- --------
Total current assets.............................. 54,973 40,364
-------- --------
Property and equipment (notes 3 and 4)...................... 150,598 121,786
Less accumulated depreciation............................... 57,068 48,534
-------- --------
Net property and equipment........................ 93,530 73,252
-------- --------
Other assets:
Goodwill, less accumulated amortization of $11,135 in 1996
and $6,920 in 1995..................................... 184,817 130,491
Intangible assets, less accumulated amortization of
$30,036 in 1996 and $27,229 in 1995.................... 8,867 9,510
Covenants not to compete, less accumulated amortization of
$7,543 in 1996 and $5,315 in 1995...................... 4,478 6,370
Other..................................................... 743 219
-------- --------
Total other assets................................ 198,905 146,590
-------- --------
$347,408 $260,206
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current installments of long-term obligations (note 6).... $ 5,783 $ 4,992
Accounts payable.......................................... 16,958 10,214
Accrued expenses:
Compensation and benefits.............................. 6,895 7,028
Other.................................................. 1,704 1,620
-------- --------
Total current liabilities......................... 31,340 23,854
-------- --------
Revolving credit loan (note 5).............................. 7,500 5,000
Long-term obligations, excluding current installments (note
6)........................................................ 734 2,383
Deferred income taxes (note 7).............................. 7,681 6,707
Minority interest........................................... 905 879
Stockholders' equity (notes 7, 8 and 9):
Common stock, $.01 par value. Authorized 50,000,000
shares; issued and outstanding 28,254,996 in 1996 and
27,686,834 shares in 1995.............................. 282 277
Additional paid-in capital................................ 97,335 86,049
Retained earnings......................................... 201,631 135,057
-------- --------
Total stockholders' equity........................ 299,248 221,383
Commitments and contingencies (notes 4 and 14)..............
-------- --------
$347,408 $260,206
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-2
<PAGE> 19
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1996, 1995, AND 1994
<TABLE>
<CAPTION>
1996 1995 1994
----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Net revenues (note 10)................................. $348,870 $274,800 $201,142
-------- -------- --------
Costs and expenses:
Cost of goods and services........................... 53,711 41,329 29,058
Operating expenses................................... 75,158 60,272 44,347
Selling, general and administrative expenses......... 71,259 57,275 43,249
Bad debt expense..................................... 3,472 2,190 1,546
Depreciation expense................................. 20,790 16,511 13,403
Amortization expense................................. 13,128 11,099 7,281
Non-recurring expense (note 11)...................... 3,932 1,921 --
-------- -------- --------
241,450 190,597 138,884
-------- -------- --------
Operating income............................. 107,420 84,203 62,258
-------- -------- --------
Other income (expenses):
Interest income...................................... 153 294 434
Interest expense..................................... (497) (892) (473)
Net gain (loss) on disposal of property and
equipment......................................... (80) 68 101
-------- -------- --------
(424) (530) 62
-------- -------- --------
Income before income taxes................... 106,996 83,673 62,320
Income tax expense (note 7)............................ 40,422 32,634 24,367
-------- -------- --------
Net income................................... $ 66,574 $ 51,039 $ 37,953
======== ======== ========
Income per common share................................ $ 2.31 $ 1.79 $ 1.34
======== ======== ========
Weighted average number of common shares and common
share equivalents outstanding (in thousands)......... 28,876 28,576 28,307
======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE> 20
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1996, 1995, AND 1994
<TABLE>
<CAPTION>
ADDITIONAL TOTAL
COMMON PAID-IN RETAINED STOCKHOLDERS'
STOCK CAPITAL EARNINGS EQUITY
------ ---------- -------- -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Balances at December 31, 1993......................... $264 $70,729 $ 46,065 $117,058
Exercise of stock options (note 9).................... 7 454 -- 461
Tax benefit related to exercise of employee stock
options (notes 7 and 9)............................. -- 6,616 -- 6,616
Net income............................................ -- -- 37,953 37,953
---- ------- -------- --------
Balances at December 31, 1994......................... 271 77,799 84,018 162,088
Exercise of stock options (note 9).................... 6 2,800 -- 2,806
Tax benefit related to exercise of employee stock
options (notes 7 and 9)............................. -- 5,450 -- 5,450
Net income............................................ -- -- 51,039 51,039
---- ------- -------- --------
Balances at December 31, 1995......................... 277 86,049 135,057 221,383
Exercise of stock options (note 9).................... 5 4,895 -- 4,900
Tax benefit related to exercise of employee stock
options (notes 7 and 9)............................. -- 6,391 -- 6,391
Net income............................................ -- -- 66,574 66,574
---- ------- -------- --------
Balances at December 31, 1996......................... $282 $97,335 $201,631 $299,248
==== ======= ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 21
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1996, 1995, AND 1994
<TABLE>
<CAPTION>
1996 1995 1994
--------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income................................................ $ 66,574 $ 51,039 $ 37,953
Adjustments to reconcile net income to net cash provided
by operating activities:
Increase in provision for losses on accounts and notes
receivable........................................... (1,433) (1,989) (491)
Depreciation expense................................... 20,790 16,511 13,403
Loss (gain) on disposal of property and equipment...... 80 (68) (101)
Amortization expense................................... 13,128 11,099 7,281
Amortization of imputed interest....................... 80 130 219
Deferred income taxes.................................. 1,090 2,369 (2,979)
Minority interest in net earnings of subsidiary........ 252 196 122
Change in operating assets and liabilities:
(Increase) decrease in accounts and notes
receivable........................................ (6,883) (5,524) 911
(Increase) decrease in inventories................... (256) (53) 177
Decrease (increase) in prepaid expenses.............. 81 78 (301)
Increase in accounts payable......................... 6,743 336 1,282
(Decrease) increase in accrued expenses.............. (339) 1,927 1,154
Decrease in income taxes............................. 6,976 3,472 7,388
--------- -------- --------
Net cash provided by operating activities......... 106,883 79,523 66,018
--------- -------- --------
Cash flows from investing activities:
Proceeds from sale of property and equipment.............. 276 1,269 900
Capital expenditures...................................... (38,241) (30,148) (22,614)
Increase in other assets.................................. (524) (13) (7)
Business acquisitions, net of cash acquired (note 13)..... (64,764) (58,590) (52,904)
--------- -------- --------
Net cash used by investing activities............. (103,253) (87,482) (74,625)
--------- -------- --------
Cash flows from financing activities:
Proceeds from revolving credit loan....................... 58,000 44,000 8,000
Payment of revolving credit loan.......................... (54,000) (41,000) (6,000)
Proceeds from long-term obligations....................... -- 506 --
Payment of long-term obligations.......................... (11,772) (13,247) (8,009)
(Decrease) increase in minority interest.................. (226) (120) 440
Proceeds from issuance of common stock.................... 4,900 2,806 461
--------- -------- --------
Net cash used by financing activities............. (3,098) (7,055) (5,108)
--------- -------- --------
Net increase (decrease) in cash................... 532 (15,014) (13,715)
Cash and cash equivalents, beginning of year................ 1,009 16,023 29,738
--------- -------- --------
Cash and cash equivalents, end of year...................... $ 1,541 $ 1,009 $ 16,023
========= ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 22
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996, 1995, AND 1994
(1) DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Description of Business
Lincare Holdings Inc. and subsidiaries (the "Company") provides oxygen,
respiratory therapy services, and infusion therapy services to the home health
care market and also supplies home medical equipment, such as hospital beds,
wheelchairs and other medical supplies. The Company's customers are located in
38 states. The Company's supplies are readily available and the Company is not
dependent on a single supplier or even a few suppliers.
(b) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the reported
period. Significant estimates included in these financial statements are related
to the allowance for uncollectible accounts and self-insurance accruals. Actual
results could differ from those estimates.
(c) Principles of Consolidation
The consolidated financial statements include the accounts of Lincare
Holdings Inc. and its subsidiaries. All significant intercompany balances and
transactions have been eliminated in consolidation.
(d) Financial Instruments
The Company believes the book value of its cash equivalents, accounts and
notes receivable, income taxes receivable, accounts payable and accrued expenses
approximates fair value due to their short-term nature. The book value of the
Company's revolving credit loan and long-term obligations approximates their
fair value as the current interest rates approximate rates at which similar
types of borrowing arrangements could be currently obtained by the Company.
(e) Inventories
Inventories, consisting of equipment, supplies and replacement parts, are
stated at the lower of cost or market. Cost is determined using the first-in,
first-out (FIFO) method.
(f) Property and Equipment
Property and equipment is stated at cost. Depreciation on property and
equipment is calculated on the straight-line method over the estimated useful
lives of the assets as set forth in the table below.
<TABLE>
<S> <C>
Land improvements........................................... 15 years
Buildings and improvements.................................. 5 to 40 years
Equipment and furniture..................................... 3 to 11 years
</TABLE>
Leasehold improvements are amortized on the straight-line method over the
lesser of the lease term or estimated useful life of the asset. Amortization is
included with depreciation expense.
F-6
<PAGE> 23
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(g) Other Assets
Goodwill results from the excess of cost over net assets of acquired
businesses and is amortized on a straight-line basis over 40 years.
Intangible assets (customer base) are amortized on a straight-line basis
over the estimated life of thirty-six months.
Covenants not to compete are amortized on a straight-line basis over the
life of the respective covenants, three to five years.
The Company annually evaluates goodwill and other intangible assets by
utilizing an operating income realization test for the applicable businesses
acquired. In addition, the Company considers the effects of external changes to
the Company's business environment, including competitive pressures, market
changes and technological and regulatory changes.
(h) Income Taxes
Deferred income taxes are recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases. Deferred tax
assets and liabilities are measured using enacted tax rates expected to be
recovered or settled. The effect on deferred taxes of a change in tax rate is
recognized in income in the period that includes the enactment date.
(i) Pension Plan
The Company has a defined contribution pension plan covering substantially
all employees. The Company makes monthly contributions to the plan equal to the
amount accrued for pension expense. Employer contributions (net of applied
forfeitures) were approximately $1,362,000 in 1996, $1,271,000 in 1995, and
$1,015,000 in 1994.
(j) Statement of Cash Flows
For purposes of the statements of cash flows, the Company considers all
short-term investments with a purchased maturity of three months or less to be
cash equivalents.
(k) Stock Options
Prior to January 1, 1996, the Company accounted for its stock option plan
in accordance with the provisions of Accounting Principles Board ("APB") Opinion
No. 25, Accounting for Stock Issued to Employees, and related interpretations.
As such, compensation expense would be recorded on the date of grant only if the
current market price of the underlying stock exceeded the exercise price. On
January 1, 1996, the Company adopted SFAS No. 123, Accounting for Stock-Based
Compensation, which permits entities to recognize as expense over the vesting
period the fair value of all stock-based awards on the date of grant.
Alternatively, SFAS No. 123 also allows entities to continue to apply the
provisions of APB Opinion No. 25, and provide pro forma net income and pro forma
earnings per share disclosures for employee stock option grants made in 1995 and
future years as if the fair-value-based method defined in SFAS No. 123 had been
applied. The Company has elected to continue to apply the provisions of APB
Opinion No. 25 and provide the pro forma disclosure provisions of SFAS No. 123.
F-7
<PAGE> 24
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) ACCOUNTS AND NOTES RECEIVABLE
Accounts and notes receivable at December 31, 1996 and 1995 consist of:
<TABLE>
<CAPTION>
1996 1995
------- -------
(IN THOUSANDS)
<S> <C> <C>
Trade....................................................... $56,697 $41,057
Other....................................................... 310 88
------- -------
57,007 41,145
Less allowance for uncollectible accounts................... 5,917 4,535
------- -------
$51,090 $36,610
======= =======
</TABLE>
(3) PROPERTY AND EQUIPMENT
Property and equipment at December 31, 1996 and 1995 consists of:
<TABLE>
<CAPTION>
1996 1995
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Land and improvements....................................... $ 85 $ 85
Building and improvements................................... 1,344 1,125
Equipment and furniture..................................... 149,169 120,576
-------- --------
$150,598 $121,786
======== ========
</TABLE>
Rental equipment of approximately $118,719,000 in 1996 and $94,785,000 in
1995 are included with equipment and furniture.
(4) LEASES
The Company has several noncancelable operating leases, primarily for
buildings, computer equipment and vehicles, that expire over the next five years
and provide for purchase or renewal options. Operating lease expense was
approximately $12,617,000 in 1996, $9,781,000 in 1995, and $6,971,000 in 1994.
Future minimum lease payments under noncancelable operating leases, net of
sublease income, as of December 31, 1996 are as follows:
<TABLE>
<CAPTION>
(IN THOUSANDS)
<S> <C>
1997........................................................ $11,172
1998........................................................ 8,326
1999........................................................ 5,077
2000........................................................ 2,440
2001........................................................ 782
-------
Total minimum lease payments...................... $27,797
=======
</TABLE>
(5) REVOLVING CREDIT LOAN
Under the revolving line of credit, the Company may borrow amounts up to
$50,000,000. The maturity date is sixty months from the date of the note. The
revolving line of credit bears interest at LIBOR plus 58 basis points (5.96% at
December 31, 1996). The line of credit is comprised of three distinct termed
loan periods. Each termed loan period commences on the date that is exactly 24,
36 and 48 months from the date of the loan (February 10, 1995). The principal
amount outstanding on the first day at each of the three termed loan periods is
repaid separately, based on a 60-month amortization plus interest monthly. The
unpaid principal on the maturity date (February 10, 2000) will be paid in one
final installment. Interest accrued on
F-8
<PAGE> 25
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
the outstanding principal balance that is not termed for repayment is payable
monthly. The Loan Agreement contains several financial and other covenants and
is secured by, effectively, all of the assets of the Company. At December 31,
1996, $9,000,000 was outstanding under the revolving line of credit. At December
31, 1995, $5,000,000 was outstanding under the revolving line of credit.
Amortization of loan origination fees amounted to approximately $5,000 in
1996, $5,000 in 1995, and $4,000 in 1994.
(6) LONG-TERM OBLIGATIONS
Long-term obligations generally consist of unsecured, non-interest bearing
deferred acquisition obligations payable in varying installments through 1998.
Unamortized imputed interest at 5.75% to 8.25% was $4,000 in 1996, $45,000 in
1995, and $47,000 in 1994.
The aggregate maturities of long-term obligations and the revolving credit
loan for each of the five years subsequent to December 31, 1996 are as follows:
<TABLE>
<CAPTION>
(IN THOUSANDS)
<S> <C>
1997........................................................ $ 5,783
1998........................................................ 2,534
1999........................................................ 1,800
2000........................................................ 1,800
2001........................................................ 1,800
-------
$13,717
=======
</TABLE>
(7) INCOME TAXES
The tax effects of temporary differences that account for significant
portions of the deferred tax assets and deferred tax liabilities at December 31,
1996 and 1995 are presented below:
<TABLE>
<CAPTION>
1996 1995
------- -------
(IN THOUSANDS)
<S> <C> <C>
Deferred tax assets:
Accounts receivable, principally due to allowance for
uncollectible
accounts............................................... $(1,748) $(1,779)
Accrued expenses, principally due to deferral for income
tax reporting purposes................................. (2,311) (1,881)
Intangible assets and covenants not to compete,
principally due to differences in amortization......... (4,431) (2,727)
Net operating loss carryforward........................... (489) --
------- -------
Total gross deferred tax assets................... (8,979) (6,387)
------- -------
Deferred tax liabilities:
Property and equipment, principally due to differences in
depreciation........................................... 9,291 7,054
Goodwill, principally due to differences in
amortization........................................... 4,232 2,430
Other..................................................... 3,137 3,610
------- -------
Total gross deferred tax liabilities.............. 16,660 13,094
------- -------
Net deferred tax liability........................ $ 7,681 $ 6,707
======= =======
</TABLE>
F-9
<PAGE> 26
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
There was no valuation allowance for deferred tax assets as of January 1,
1995, December 31, 1995 and 1996. The Company expects the results of future
operations will generate sufficient taxable income to allow for the utilization
of deferred tax assets.
Income tax expense attributable to operations consists of:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------
1996 1995 1994
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Current:
Federal................................................. $35,149 $27,164 $23,224
State................................................... 4,183 3,102 4,147
------- ------- -------
Total current................................... $39,332 30,266 27,371
======= ======= =======
Deferred:
Federal................................................. 959 2,072 (2,606)
State................................................... 131 296 (398)
------- ------- -------
Total deferred.................................. 1,090 2,368 (3,004)
------- ------- -------
$40,422 $32,634 $24,367
======= ======= =======
Total income tax expense was allocated:
Income from operations.................................. $40,422 $32,634 $24,367
Stockholders' equity for compensation expense for tax
purposes............................................. (6,391) (5,450) (6,616)
------- ------- -------
$34,031 $27,184 $17,751
======= ======= =======
</TABLE>
Total income tax expense differs from the amounts computed by applying U.S.
federal income tax rates (35% in 1996, 1995 and 1994) to income before income
taxes as a result of the following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------
1996 1995 1994
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Computed "expected" tax expense........................... $37,449 $29,286 $21,812
State income taxes, net of federal income tax benefit..... 2,804 2,209 2,437
Other..................................................... 169 1,139 118
------- ------- -------
Total income tax expense........................ $40,422 $32,634 $24,367
======= ======= =======
</TABLE>
(8) STOCKHOLDERS' EQUITY
The Company has 4,879,238 authorized and unissued shares of preferred
stock. The Board of Directors has the authority to issue up to such number of
shares of preferred stock in one or more series and to fix the rights,
preferences, privileges, qualifications, limitations and restrictions thereof
without any further vote or action by the stockholders.
(9) STOCK OPTIONS
The Company has four stock option plans that provide for the grant of
options to officers and employees. Stock options are granted with an exercise
price equal to the stock's fair value at the date of grant. Stock options
generally have ten-year terms and generally vest over four years.
The Company has reserved a total of 2,973,768 shares of common stock for
issuance under its Non-Qualified Stock Option Plan (the Plan). At December 31,
1996, there were options for 177,520 shares
F-10
<PAGE> 27
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
outstanding and options for 979 shares available for issue under the Plan. The
Company has reserved a total of 1,600,000 shares of common stock for issuance
under its 1991 Stock Plan (the 1991 Plan). At December 31, 1996 there were
options for 936,900 shares outstanding and options for 15,800 shares available
for issuance under the 1991 Plan. The Company has reserved a total of 500,000
shares of common stock for issuance under its 1994 Stock Plan (the 1994 Plan).
At December 31, 1996, there were options for 480,000 shares outstanding and
options for 13,000 shares available for issue under the 1994 Plan. The Company
has reserved a total of 750,000 shares of common stock for issuance under its
1996 Stock Plan (the 1996 Plan). At December 31, 1996, there were options for
381,000 shares outstanding and options for 369,000 shares available for issue
under the 1996 Plan.
The per share weighted average fair value of stock options granted during
1996 and 1995 was $17.48 and $11.56 on the date of grant using the Black Scholes
option pricing model with the following weighted average assumptions:
1996 -- expected dividend yield 0%, risk-free interest rate of 6.2%, expected
life of 7 years, and volatility of 42.2%; 1995 -- expected dividend yield 0%,
risk-free interest rate of 6.2%, expected life of 6 years, and volatility of
43.5%.
The Company applied APB Opinion No. 25 in accounting for its Plan and,
accordingly, no compensation cost has been recognized for its stock options in
the financial statements. Had the Company determined compensation cost based on
the fair value at the grant date for its stock options under SFAS No. 123, the
Company's net income would have been reduced to the pro forma amounts indicated
below:
<TABLE>
<CAPTION>
1996 1995
------- -------
(IN THOUSANDS,
EXCEPT PER SHARE
DATA)
<S> <C> <C>
Net income:
As reported........................................... $66,574 $51,039
Pro forma............................................. 64,093 49,775
======= =======
Income per common share:
As reported........................................... $ 2.31 $ 1.79
Pro forma............................................. 2.22 1.74
======= =======
</TABLE>
Pro forma net income reflects only options granted in 1996 and 1995,
therefore, the full impact of calculating compensation cost for stock options
under SFAS No. 123 is not reflected in the pro forma net income amounts
presented above because compensation cost is reflected over the options vesting
period of four years and compensation cost for options granted prior to January
1, 1995 is not considered.
F-11
<PAGE> 28
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Information related to the Plans is as follows:
<TABLE>
<CAPTION>
NUMBER OF WEIGHTED AVERAGE
OPTIONS EXERCISE PRICE
--------- ----------------
<S> <C> <C>
Outstanding at December 31, 1994........................... 2,155,062 $10.49
Exercised in 1995.......................................... (562,704) 4.99
Canceled in 1995........................................... (91,379) 3.83
Options issued in 1995..................................... 542,000 25.05
---------
Outstanding at December 31, 1995........................... 2,042,979 16.17
Exercised in 1996.......................................... (568,159) 8.74
Canceled in 1996........................................... (29,400) 15.78
Options issued in 1996..................................... 530,000 32.44
---------
Outstanding at December 31, 1996........................... 1,975,420 $22.67
=========
</TABLE>
At December 31, 1996, the range of exercise prices and weighted average
remaining contractual life of outstanding options was as follows:
<TABLE>
<CAPTION>
OPTIONS WEIGHTED
OUTSTANDING AS OF AVERAGE
RANGE OF DECEMBER 31, REMAINING
EXERCISE PRICES 1996 CONTRACTUAL LIFE
--------------- ----------------- ----------------
<S> <C> <C>
$0.25-$12.125.......................................... 261,720 4.0 years
$19.00-$19.00.......................................... 669,700 6.9 years
$24.63-$25.00.......................................... 504,000 7.3 years
$25.25-$35.25.......................................... 540,000 8.4 years
--------- ----------
$0.25-$35.25........................................... 1,975,420 7.0 years
</TABLE>
At December 31, 1996 and 1995, the number of options exercisable was
825,920 and 1,074,152, respectively, and the weighted average exercise price of
those options was $15.62 and $13.25, respectively.
In connection with the exercise of certain stock options in 1996, 1995 and
1994, the Company receives a tax deduction for the difference between the fair
value of the common stock at the date of exercise and the exercise price. The
related income tax benefit of approximately $6,391,000 in 1996, $5,450,000 in
1995, and $6,616,000 in 1994 has been recorded as a reduction of income taxes
payable and an addition to additional paid-in capital.
(10) NET REVENUES
Included in the Company's net revenues is reimbursement from the federal
government under the Medicare and under Medicaid programs which aggregated
approximately 61% in 1996, 60% in 1995, and 58% in 1994.
(11) NON-RECURRING EXPENSE
In 1996, the Company recorded a non-recurring expense of $3,932,000 of
which $2,682,000 is related to the restructuring of certain senior management
employment agreements and $1,250,000 is related to the resolution of an
investigation. In 1995, the Company recorded a non-recurring expense of
$1,921,000 related to the abandoned merger between the Company and Coram
Healthcare Corporation. Such non-recurring expense is comprised of (a)
$1,448,000 of professional fees, (b) $199,000 of printing and mailing expenses,
(c) $153,000 of filing fees, and (d) $121,000 of other direct costs.
F-12
<PAGE> 29
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(12) SUPPLEMENTAL STATEMENTS OF CASH FLOWS INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------
1996 1995 1994
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Cash paid for:
Interest.................................................. $ 414 $ 762 $ 254
======= ======= =======
Income taxes.............................................. $31,566 $25,036 $19,983
======= ======= =======
</TABLE>
(13) BUSINESS COMBINATIONS
During 1996, the Company acquired the outstanding stock or certain assets
of 17 businesses in 17 separate transactions. During 1995, the Company acquired
the outstanding stock or certain assets of 22 businesses in 22 separate
transactions. Consideration for the acquisitions generally included cash,
unsecured non-interest bearing obligations and the assumption of certain
liabilities.
None of the businesses acquired were related to the Company prior to
acquisition. Each acquisition during 1996 and 1995 was accounted for as a
purchase. The results of operations of the acquired companies are included in
the accompanying consolidated statement of operations since the respective date
of acquisition. Each of the acquired companies conducted operations similar to
that of the Company.
The aggregate cost of the above acquisitions was as follows:
<TABLE>
<CAPTION>
1996 1995
------- -------
(IN THOUSANDS)
<S> <C> <C>
Cash........................................................ $64,764 $58,865
Deferred acquisition obligations............................ 7,905 9,140
Assumption of liabilities................................... 383 2,929
------- -------
$73,052 $70,934
======= =======
</TABLE>
The aggregate purchase price was allocated as follows:
<TABLE>
<CAPTION>
1996 1995
------- -------
(IN THOUSANDS)
<S> <C> <C>
Current assets (including cash acquired of $275 in 1995).... $ 6,362 $ 8,097
Property and equipment...................................... 3,205 4,731
Intangible assets........................................... 6,379 12,056
Goodwill.................................................... 57,106 46,050
------- -------
$73,052 $70,934
======= =======
</TABLE>
The following unaudited pro forma supplemental information on the results
of operations for the years ended December 31, 1996 and 1995 include the
acquisitions as if they had been combined at the beginning of the respective
years.
<TABLE>
<CAPTION>
1996 1995
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Net revenues................................................ $369,127 $318,060
======== ========
Net income.................................................. $ 70,535 $ 59,626
======== ========
Net income per common share................................. $ 2.44 $ 2.09
======== ========
</TABLE>
F-13
<PAGE> 30
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The unaudited pro forma financial information is not necessarily indicative
of either the results of operations that would have occurred had the
transactions been effected at the beginning of the respective years or of future
results of operations of the combined companies.
(14) CONTINGENCIES
In October 1996, the Company resolved with the United States Attorney for
the Middle District of Florida an investigation that had been pending since
1991. The United States Attorney had been investigating certain services
provided by the Company to a pharmacy that supplied medications to home
respiratory patients. Under its contracts with the pharmacy, the Company was
responsible for providing various marketing, field administration and patient
services to the pharmacy. The contracts were in effect from February 1989 to
April 1992, and accounted for less than one percent of the Company's revenues
during such period. As part of its settlement with the United States Attorney,
the Company, without admitting any wrongdoing or liability, has agreed to pay $1
million to the United States Government.
The Company is involved in certain claims and legal actions arising in the
ordinary cause of business. In the opinion of management, the ultimate
disposition of all matters will not have a material adverse impact on the
Company's financial position, results of operations or liquidity.
(15) QUARTERLY FINANCIAL DATA (UNAUDITED)
The following is a summary of quarterly financial results for the years
ended December 31, 1996 and 1995:
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
------- ------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
1996:
Net revenues.................................... $79,772 $84,970 $89,633 $94,495
======= ======= ======= =======
Operating income (1)............................ $25,138 $27,581 $28,787 $25,914
======= ======= ======= =======
Net income (1).................................. $15,424 $16,945 $17,637 $16,568
======= ======= ======= =======
Income per common share......................... $ .54 $ .59 $ .61 $ .57
======= ======= ======= =======
1995:
Net revenues.................................... $61,223 $67,400 $71,876 $74,301
======= ======= ======= =======
Operating income (2)............................ $19,415 $21,135 $20,649 $23,004
======= ======= ======= =======
Net income (2).................................. $11,862 $12,778 $12,429 $13,970
======= ======= ======= =======
Income per common share......................... $ .42 $ .45 $ .43 $ .49
======= ======= ======= =======
</TABLE>
- ---------------
(1) The 1996 fourth quarter operating income included a non-recurring expense of
$3,932,000 ($1,649,000 or $.06 per share after taxes) (see note 11).
(2) The 1995 third quarter operating income included a non-recurring expense of
$1,921,000 ($1,172,000 or $.04 per share after taxes) (see note 11).
F-14
<PAGE> 31
SCHEDULE VIII
LINCARE HOLDINGS INC.
AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
CHARGED TO
BALANCE AT CHARGED TO OTHER
BEGINNING COSTS AND ACCOUNTS DEDUCTIONS BALANCE AT
DESCRIPTION OF PERIOD EXPENSES DESCRIBE DESCRIBE END OF PERIOD
----------- ---------- ---------- ---------- ---------- -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
YEAR ENDED DECEMBER 31, 1996
Deducted from asset accounts:
Allowance for uncollectible
accounts......................... $4,535 $3,472 $2,788(1) $4,878(2) $5,917
====== ====== ====== ====== ======
YEAR ENDED DECEMBER 31, 1995
Deducted from asset accounts:
Allowance for uncollectible
accounts......................... $4,723 $2,190 $1,713(1) $4,091(2) $4,535
====== ====== ====== ====== ======
YEAR ENDED DECEMBER 31, 1994
Deducted from asset accounts:
Allowance for uncollectible
accounts......................... $4,596 $1,546 $ 617(1) $2,036(2) $4,723
====== ====== ====== ====== ======
</TABLE>
- ---------------
(1) To record allowance on business combinations
(2) To record write-offs
S-1
<PAGE> 32
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
<S> <C> <C>
+3.1- Amended and Restated Certificate of Incorporation of Lincare Holdings Inc. . . . .
+3.2- Amended and Restated By-Laws of Lincare Holdings Inc. . . . . . . . . . . . . . . .
+10.6- Purchase Agreement dated as of September 25, 1991 among the Registrant and the
several purchasers named therein . . . . . . . . . . . . . . . . . . . . . . . . .
+10.10- Non-Qualified Stock Option Plan of Registrant . . . . . . . . . . . . . . . . . . .
+10.11- Lincare Holdings Inc. 1991 Stock Plan . . . . . . . . . . . . . . . . . . . . . . .
+10.12- Non-Qualified Stock Option Agreements dated as of November 30, 1990, as amended,
between the Registrant and James T. Kelly . . . . . . . . . . . . . . . . . . . . .
+10.13- Non-Qualified Stock Option Agreements dated as of November 30, 1990, as amended,
between the Registrant and Howard R. Deutsch . . . . . . . . . . . . . . . . . . .
+10.14- Non-Qualified Stock Option Agreements dated as of November 30, 1990, as amended,
between the Registrant and James M. Emanuel . . . . . . . . . . . . . . . . . . . .
+10.15- Lincare Inc. 401(k) Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
+10.19- Asset Purchase Agreement dated as of September 25, 1991, between Lincare Inc. and
Glasrock Home Health Care, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . .
++10.20- Asset Purchase Agreement dated as of October 2, 1992, among Lincare Inc., Advance
Home Health Services, Inc. and Diversified Diagnostics Inc., Richard Levy and
Michael D. Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
+++10.21- Amendment to Non-Qualified Stock Option Agreement dated December 2, 1992, between
the Registrant and James T. Kelly . . . . . . . . . . . . . . . . . . . . . . . . .
+++10.22- Amendment to Non-Qualified Stock Option Agreement dated December 2, 1992, between
the Registrant and Howard R. Deutsch . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
<PAGE> 33
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
<S> <C> <C>
+++10.23- Amendment to Non-Qualified Stock Option Agreement dated December 2, 1992,
between the Registrant and James M. Emanuel . . . . . . . . . . . . . . . . . . .
++++10.24- Asset Purchase Agreement effective March 31, 1993, between Lincare Inc. and T2
Medical, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*10.26- Loan Agreement dated February 10, 1995, between Registrant and NationsBank of
Florida, N.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*10.27- Employment Agreement dated as of November 1, 1993 between Lincare Holdings Inc.
and James T. Kelly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*10.28- Employment Agreement dated as of November 1, 1993 between Lincare Holdings Inc.
and Howard R. Deutsch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*10.29- Employment Agreement dated as of November 1, 1993 between Lincare Holdings Inc.
and James M. Emanuel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
**10.30- Asset Purchase Agreement dated as of May 24, 1995 between Lincare Inc. and
PrimaCare Health Resources, Inc. . . . . . . . . . . . . . . . . . . . . . . . .
***10.31- Non-Qualified Stock Option Agreements dated as of January 23, 1995, between
the Registrant and James T. Kelly . . . . . . . . . . . . . . . . . . . . . . . .
***10.32- Non-Qualified Stock Option Agreements dated as of January 23, 1995, between
the Registrant and Howard R. Deutsch . . . . . . . . . . . . . . . . . . . . . .
***10.33- Non-Qualified Stock Option Agreements dated as of January 23, 1995, between
the Registrant and James M. Emanuel . . . . . . . . . . . . . . . . . . . . . . .
10.34- Employment Agreement dated as of January 1, 1997 between Lincare Holdings Inc.
and John P. Byrnes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.35- Employment Agreement dated as of January 1, 1997 between Lincare Holdings Inc.
and James T. Kelly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.36- Employment Agreement dated as of January 1, 1997 between Lincare Holdings Inc.
and Howard R. Deutsch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.37- Employment Agreement dated as of January 1, 1997 between Lincare Holdings Inc.
and James M. Emanuel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.38- Non-Qualified Stock Option Agreements dated as of January 26, 1996, between
the Registrant and John P. Byrnes . . . . . . . . . . . . . . . . . . . . . . . . 35
10.39- Non-Qualified Stock Option Agreements dated as of July 15, 1996 between
the Registrant and John P. Byrnes . . . . . . . . . . . . . . . . . . . . . . . . 36
+++++22.2- List of Subsidiaries of Lincare Holdings Inc. . . . . . . . . . . . . . . . . . .
23.5- Consent of KPMG Peat Marwick LLP . . . . . . . . . . . . . . . . . . . . . . . . 37
27 Financial Data Schedule (for SEC Use Only) . . . . . . . . . . . . . . . . . . .
</TABLE>
- ---------------
+ Incorporated by reference to the corresponding exhibit to the
Registrant's Registration Statement on Form S-1 (No. 33-44672)
<PAGE> 34
++ Incorporated by reference to Exhibit A to the Registrant's Form 8-K
dated October 14, 1992.
+++ Incorporated by reference to the corresponding exhibit to the
Registrant's Registration Statement on Form S-1 (No. 33-55260).
++++ Incorporated by reference to the Registrant's Form 8-K dated April 28,
1993.
+++++ Incorporated by reference to the Registrant's Form 10-K dated March
22, 1994.
* Incorporated by reference to the Registrant's Form 10-K dated
March 22, 1995.
** Incorporated by reference to the Registrant's Form 8-K dated May 24,
1995.
*** Incorporated by reference to the Registrant's Form 10-K dated March 27,
1996.
<PAGE> 1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 1997, by and
between LINCARE HOLDINGS INC., a Delaware corporation (the "Company"), and JOHN
P. BYRNES (the "Employee").
W I T N E S S E T H:
WHEREAS, prior to the date hereof, the Employee has been an
employee of the Company; and
WHEREAS, the Company desires to induce the Employee to
continue in the employ of the Company for the period provided in this
Agreement, and the Employee is willing to accept such employment with the
Company on a full-time basis, all in accordance with the terms and conditions
set forth below;
NOW, THEREFORE, for and in consideration of the premises
hereof and the mutual covenants contained herein, the parties hereto do hereby
covenant and agree as follows:
1. Employment. (a) The Company hereby employs the
Employee, and the Employee hereby accepts such employment with the Company, for
the period set forth in Section 2 hereof, all upon the terms and conditions
hereinafter set forth.
(b) The Employee affirms and represents that he is under
no obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement.
2. Term of Employment. Unless earlier terminated
as hereinafter provided, the initial term of the Employee's employment under
this Agreement shall be for a period beginning on the date hereof and ending on
December 31, 2001 (such period from the date hereof until December 31, 2001 or,
if the Employee's employment hereunder is earlier terminated, such shorter
period, being hereinafter called the "Initial Employment Term"). In the event
that the Employee continues
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<PAGE> 2
in the full-time employ of the Company after the end of the Initial Employment
Term (it being expressly understood and agreed that the Company does not now,
nor hereafter shall have, any obligation to continue the Employee in its
employ, whether or not on a full-time basis), then, unless otherwise expressly
agreed to by the Employee and the Company in writing, the Employee's continued
employment with the Company shall, notwithstanding anything to the contrary
expressed or implied herein, continue to be subject to the terms and conditions
of this Agreement. As used in this Agreement, the term "Employment Term" shall
mean the period beginning on the date hereof and ending on the date of the
Employee's cessation of employment with the Company, whether such date is
before, on, or after the expiration of the Initial Employment Term.
3. Duties. The Employee shall be employed as the Chief
Executive Officer of the Company, shall faithfully and competently perform such
duties as are specified in the By-laws of the Company and shall also perform
and discharge such other reasonable employment duties and responsibilities as
the Board of Directors of the Company may from time to time prescribe. The
Employee shall perform his duties at such places and times as the Board of
Directors of the Company may reasonably prescribe. Except as may otherwise be
approved in advance by the Company, and except during vacation periods and
reasonable periods of absence due to sickness, personal injury or other
disability, the Employee shall devote his full time throughout the Employment
Term to the services required of him hereunder. Except as may otherwise be
approved in advance by the Company, the Employee shall render his services
exclusively to the Company during the Employment Term and shall use his best
efforts, judgment and energy to improve and advance the business and interests
of the Company in a manner consistent with the duties of his position.
4. Salary and Bonus. (a) Salary. As compensation for
the complete and satisfactory performance by the Employee of the services to be
performed by the Employee hereunder during the Employment Term, the Company
shall pay the Employee a base salary at the annual rate of THREE HUNDRED FIFTY
THOUSAND DOLLARS ($350,000) (said amount, together with any increases thereto
during the Employment Term, being hereinafter referred to as the "Salary").
Any Salary payable hereunder shall be paid in regular intervals in accordance
with the Company's payroll practices. The Salary payable to the Employee
pursuant to this Section 4(a) shall be increased annually, as of January 1,
1998, and each January 1 thereafter for the twelve (12) month period then
commencing, by an amount
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<PAGE> 3
equal to: (i) the annual percentage increase in the Consumer Price Index for
All Urban Consumers, All Items, for the most recent twelve (12) month period
for which such figures are then available as reported in the Monthly Labor
Review published by the Bureau of Labor Statistics of the U.S. Department of
Labor or (ii) such higher amount as may be determined from time to time by the
Board of Directors of the Company in its sole discretion.
(b) Bonus. During the Employment Term, in addition to
Salary, the Company shall also pay bonus compensation to the Employee in
respect of each calendar year (or applicable portion thereof) during the
Employment Term, such bonus compensation ("Bonus") to be an amount equal to the
Bonus Amount (as hereinafter defined) for such calendar year (or applicable
portion thereof).
For the purposes of this Agreement, the following terms shall
have the meanings set forth below:
"Bonus Amount" for any full calendar year shall mean an amount
equal to: (a) the Employee's Salary for such calendar year; MULTIPLIED
BY (b) the percentage set forth on the table below which corresponds
to the increase in the Company's fully diluted earnings per share in
respect of such calendar year over the fully diluted earnings per
share of the Company during the immediately preceding calendar year.
FULLY DILUTED BONUS AS % OF
EPS GROWTH BASE SALARY
---------- -----------
Less than 20% 0%
20% or more but less than 21% 40%
21% or more but less than 22% 46%
22% or more but less than 23% 52%
23% or more but less than 24% 58%
24% or more but less than 25% 64%
25% or more but less than 26% 70%
26% or more but less than 27% 76%
27% or more but less than 28% 82%
28% or more but less than 29% 88%
29% or more but less than 30% 94%
30% 100%*
* If the fully diluted EPS growth is greater than 30%, then the
Employee shall receive an additional 6% of his Base Salary for each full
percentage point of EPS growth achieved.
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<PAGE> 4
In the event that the Employment Terms ends at any time other
than the conclusion of a full calendar year, the Employee's Bonus Amount in
respect of such calendar year shall be prorated, and shall be an amount equal
to: (a) the Employee's Salary for such calendar year; MULTIPLIED BY (b) the
percentage set forth on the table above which corresponds to the increase in the
Company's year-to-date fully diluted earnings per share (as determined by the
then-most recently announced fully diluted earnings per share of the Company)
over the fully diluted earnings per share of the Company during the comparable
period in the immediately preceding calendar year; MULTIPLIED BY (c) a
percentage equal to the number of full calendar months included in the
Employment Term for the current calendar year divided by twelve.
The Company's Board of Directors (or an authorized committee
thereof) shall have the discretion to adjust upward or downward the Bonus
Amount for any applicable period to account equitably for: (a) any
extraordinary charges; (b) any unusual non-recurring items; or (c) changes
after the date hereof in accounting principles required under generally
accepted accounting principles; which events impacted the Company's fully
diluted earnings per share in respect of any such applicable period or
comparable prior year period.
Nothing contained herein and no action taken in respect of any
Bonus (or otherwise in respect of this Section 4(b)) shall create or be
construed to create a trust of any kind. The Employee's right to receive any
Bonus pursuant to this Section 4(b) shall be no greater than the right of an
unsecured general creditor of the Company to receive payment from the Company.
All bonuses under this Section 4(b) shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no
segregation of assets shall be made, to assure payment of any Bonuses
hereunder.
(c) Withholding. The payment of any Salary and Bonus
hereunder shall be subject to applicable withholding and payroll taxes, and
such other deductions as may be required under the Company's employee benefit
plans.
5. Benefits. During the Employment Term, the Employee
shall:
(a) be eligible to participate in all employee fringe
benefits and any pension and/or profit sharing plans that may be
provided by the Company for its key
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<PAGE> 5
executive employees in accordance with the provisions of any such
plans, as same may be in effect on and after the date hereof;
(b) be eligible to participate in any medical and health
plans or other employee welfare benefit plans that may be provided by
the Company for its key executive employees in accordance with the
provisions of any such plans, as same may be in effect on and after
the date hereof;
(c) be entitled to annual paid vacation in accordance
with the Company policy that may be applicable on and after the date
hereof to key executive employees;
(d) be entitled to sick leave, sick pay and disability
benefits in accordance with any Company policy that may be applicable
on and after the date hereof to key executive employees; and
(e) be entitled to reimbursement for all reasonable and
necessary out-of-pocket living and travel expenses incurred by the
Employee while away from his usual place of business in the
performance of his duties hereunder in accordance with the Company's
policies applicable on and after the date hereof in respect thereto.
6. Inventions and Confidential Information. The
Employee hereby covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of
research, design, development, production, marketing and servicing
with respect to its business and that as part of the Employee's
employment by the Company the Employee is (or may be) expected to make
new contributions and inventions of value to the Company.
(b) The Employee's employment hereunder creates a
relationship of confidence and trust between the Employee and the
Company with respect to certain information pertaining to the business
of the Company and its Affiliates (as hereinafter defined) or
pertaining to the business of any client or customer of the Company or
its Affiliates which may be made known to the Employee by the Company
or any of its Affiliates or by any client or customer of the Company
or any of its Affiliates or learned by the Employee during the period
of his employment.
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<PAGE> 6
(c) The Company possesses and will continue to
possess information that has been created, discovered or
developed by, or otherwise become known to it (including, without
limitation, information created, discovered, developed or made known
by the Employee during the period of or arising out of his employment
hereunder) or in which property rights have been or may be assigned or
otherwise conveyed to the Company, which information has commercial
value in the business in which the Company is engaged and is treated
by the Company as confidential.
(d) Any and all inventions, products, discoveries,
improvements, processes, manufacturing, marketing and service methods
or techniques, formulae, designs, styles, specifications, data bases,
computer programs (whether in source code or object code), know-how,
strategies and data, whether or not patentable or registrable under
copyright or similar statutes, made, developed or created by the
Employee (whether at the request or suggestion of the Company, any of
its Affiliates, or otherwise, whether alone or in conjunction with
others, and whether during regular hours of work or otherwise) during
the period of his employment by the Company (collectively, hereinafter
referred to as "Inventions"), which may pertain to the business,
products, or processes of the Company or any of its Affiliates, will
be promptly and fully disclosed by the Employee to an appropriate
executive officer of the Company (other than the Employee) and shall
be the Company's exclusive property, and the Employee will promptly
execute and/or deliver to an appropriate executive officer of the
Company (other than the Employee) without any additional compensation
therefor, all papers, drawings, models, data, documents and other
material pertaining to or in any way relating to any Inventions made,
developed or created by him as aforesaid. For the purposes of this
Agreement, the term "Affiliate" or "Affiliates" of the Company shall
mean any corporation or other entity which is controlled, directly or
indirectly, by the Company. As used in the preceding sentence, the
word "control" shall mean, with respect to any entity, the power to
vote or direct the voting of more than 50% of the voting equity
interests in such entity.
(e) The Employee will keep confidential and will hold for
the Company's sole benefit any Invention which is to be the exclusive
property of the Company under this
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<PAGE> 7
Section 6 for which no patent, copyright, trademark or other right or
protection is issued.
(f) The Employee also agrees that he will not without the
prior written consent of an appropriate executive officer of the
Company (other than the Employee) use for his benefit or disclose at
any time during his employment by the Company, or thereafter, except
to the extent required by the performance by him of his duties as an
employee of the Company, any information obtained or developed by him
while in the employ of the Company with respect to any Inventions or
with respect to any customers, clients, suppliers, products,
employees, financial affairs, or methods of design, distribution,
marketing, service, procurement or manufacture of the Company or any
of its Affiliates, or any confidential matter, except information
which at the time is generally known to the public other than as a
result of disclosure by him not permitted hereunder, or if such
information is required to be disclosed under court order or other
applicable law.
(g) The Employee acknowledges and agrees that a remedy at
law for any breach or threatened breach of the provisions of this
Section 6 would be inadequate and, therefore, agrees that the Company
and its Affiliates shall be entitled to injunctive relief in addition
to any other available rights and remedies in case of any such breach
or threatened breach; provided, however, that nothing contained herein
shall be construed as prohibiting the Company or any of its Affiliates
from pursuing any other rights and remedies available for any such
breach or threatened breach.
(h) The Employee agrees that upon termination of his
employment hereunder for any reason, the Employee shall forthwith
return to the Company all documents and other property in his
possession belonging to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 10 hereof,
the Employee hereby expressly agrees that the foregoing provisions of
this Section 6 shall be binding upon the Employee's heirs, successors
and legal representatives.
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<PAGE> 8
7. Termination. (a) The Employment Term shall end
and the Employee's employment hereunder shall be terminated upon the occurrence
of any of the following:
(i) the death of the Employee;
(ii) termination of the Employee's employment hereunder
by the Company based upon the inability of the Employee to perform
his duties on account of disability or incapacity for a period of one
hundred eighty (180) or more days, whether or not consecutive,
occurring within any period of twelve (12) consecutive months;
provided, however, that such employment shall not be terminated by the
Company if it can reasonably accommodate the Employee's disability or
incapacity;
(iii) the termination of the Employee's employment hereunder by
the Employee at any time for any reason whatsoever (including, without
limitation, resignation or retirement);
(iv) termination of the Employee's employment hereunder by the
Company at any time "for cause", such termination to take effect
immediately upon written notice from the Company to the Employee;
(v) termination of the Employee's employment hereunder by
the Company at any time other than for "cause", such termination to
take effect immediately upon written notice from the Company to the
Employee; or
(vi) upon a Change of Control of the Company.
The following actions, failures or events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iv) above: (1) conviction of having committed a felony; (2) determination by
at least two-thirds of the members of the Board of Directors that the Employee
has committed acts of dishonesty or moral turpitude; (3) failure to follow
reasonable and lawful directives of the Board of Directors of the Company; or
(4) gross negligence or willful misconduct by the Employee in the performance
of his obligations hereunder. The term "willful" shall mean any act or failure
to act taken or omitted to be taken by the Employee not in good faith and
without reasonable belief that the act or omission was in the best interest of
the Company.
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<PAGE> 9
As used herein the term "Change of Control of the Company"
shall mean any of the following:
(i) sale or other disposition (or the last such
sale or other disposition) resulting in the transfer of more than 50% of the
outstanding common stock of the Company to an unrelated and unaffiliated third
party purchaser; or
(ii) the consolidation or merger of the Company
with or into any other entity (other than a merger in which the Company is the
surviving corporation and which does not result in more than 50% of the capital
stock of the Company outstanding immediately after the effective date of such
merger being owned of record or beneficially by persons other than the holders
of its capital stock immediately prior to such merger); or
(iii) a sale of substantially all of the properties
and assets of the Company as an entirety to an unrelated and unaffiliated third
party purchaser; or
(iv) the time at which any person (including a
person's affiliates and associates) or group (as that term is understood under
Section 13(d) of the Exchange Act and the rules and regulations thereunder),
files a Schedule 13-D or 14D-1 (or any successor schedule, form or report under
the Exchange Act) disclosing that such person or group has become the
beneficial owner (as defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of shares of capital stock of
the Company giving such person or group a majority of the voting power of all
outstanding capital stock of the Company with the right to vote generally in an
election for directors or other capital stock of the Company into which the
common stock or other voting stock is reclassified or changed.
(b) (i) If, during the Initial Term, the Employee's
employment is terminated by the Company other than for "cause", then the
Company shall pay to the Employee, as severance pay or liquidated damages or
both, an amount equal to his then-current annual Salary at the time of such
termination.
(ii) If, during the Initial Term, this Agreement
is terminated pursuant to the provisions of Section 7(a)(vi) hereof, then the
Company shall pay to the Employee, as severance pay or liquidated damages or
both, an amount equal to his then-current annual Salary at the time of such
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<PAGE> 10
termination plus an amount equal to his bonus compensation in respect of the
immediately preceding calendar year.
(iii) If, after the Initial Term, the Employee's
employment is terminated by the Company other than for "cause", or this
Agreement is terminated pursuant to the provisions of Section 7(a)(vi) hereof,
or the Employee voluntarily terminates his employment by the Company for any
reason whatsoever (including, without limitation, resignation or retirement),
then the Company shall pay to the Employee, as severance pay or liquidated
damages or both, an amount equal to his then-current annual Salary at the time
of such termination plus an amount equal to his bonus compensation in respect
of the immediately preceding calendar year.
(iv) If the Employee's employment is terminated by
the Company other than for "cause", or if the Employee voluntarily terminates
his employment by the Company, then any such payable amounts shall be paid in
twelve (12) equal monthly installments commencing on the first day of the
calendar month immediately following the termination of the Employment Term.
If the Employee's employment is terminated pursuant to the provisions of
Section 7(a)(vi) hereof, then such amounts shall be payable no later than ten
(10) business days after the end of the Employment Term. It is understood and
agreed that this Section 7(b) shall survive the expiration or termination of
this Agreement and the provisions hereof shall be binding upon any successor in
interest of the Company. It is expressly acknowledged and agreed that the
provisions of this Section 7(b) shall supersede any and all payment obligations
of Lincare Inc., a wholly-owned subsidiary of the Company, to the Employee
under the provisions of Section 3 of that certain "Agreement" by and between
the Employee and Lincare Inc., dated December 28, 1990.
(c) Notwithstanding anything to the contrary expressed or
implied herein, and except as set forth in Section 7(b) hereof, the Company
(and its Affiliates) shall not be obligated to make any payments to the
Employee or on his behalf of whatever kind or nature by reason of the
Employee's cessation of employment other than: (A) such amounts, if any, of his
Salary and bonus compensation as shall have accrued and remained unpaid as of
the date of said cessation (including, but not limited to, the amount of any
bonus compensation payable in respect of the then-current calendar year); and
(B) such other amounts which may be otherwise payable to the Employee from the
Company's retirement plans or other benefit plans on account of such
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<PAGE> 11
cessation of employment (including, but to limited to, payment for any vested
but unused vacation); and (C) Company shall cover the Employee under its
medical and dental plan, and life insurance through the end of the last
calendar day of the month during which the Employment Term ends, thereafter,
the Employee shall be given COBRA conversion rights for the Company's medical
and dental plan. Nothing in this Section 7(c) shall limit the Employee's right
to contest any termination of the Employee's employment hereunder by
appropriate legal proceedings. It is understood and agreed that this Section
7(c) shall survive the expiration or termination of this Agreement and the
provisions hereof shall be binding upon any successor in interest of the
Company.
(d) No interest shall accrue on or be paid with respect
to any portion of any payments hereunder paid in accordance with the terms of
this Agreement.
8. Non-Assignability. (a) Neither this Agreement nor
any right or interest hereunder shall be assignable by the Employee, his
beneficiaries, or legal representatives without the Company's prior written
consent; provided, however, that nothing in this Section 8(a) shall preclude
the Employee from designating a beneficiary to receive any benefit payable
hereunder upon his death. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Company, nor shall any obligations of the
Company hereunder be delegated.
(b) Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to exclusion, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
9. Competition. During the Employee's employment by the
Company and during the twelve (12) month period commencing on the date of
cessation of the Employee's employment for any reason whatsoever:
(a) The Employee will not make any statement or perform
any act intended to advance an interest of any existing or prospective
competitor of the Company or any of its Affiliates in any way that
will or may injure an interest of the Company or any of its Affiliates
in its relationship and dealings with existing or potential
-11-
<PAGE> 12
customers or clients, or solicit or encourage any other employee of
the Company or any of its Affiliates to do any act that is disloyal
to the Company or any of its Affiliates or inconsistent with the
interest of the Company or any of its Affiliate's interests or in
violation of any provision of this Agreement;
(b) The Employee will not discuss with any existing or
potential customers or clients of the Company or any of its Affiliates
the present or future availability of services or products by a
business, if the employee has or expects to acquire a proprietary
interest in such business or is or expects to be an employee, officer
or director of such business, where such services or products are
competitive with services or products which the Company or any of its
Affiliates provides during the Employment Term;
(c) The Employee will not make any statement or do any
act intended to cause any existing or potential customers (with whom
the Company has made contact) or clients of the Company or any of its
Affiliates to make use of the services or purchase the products of any
competitive business in which the Employee has or expects to acquire a
proprietary interest or in which the Employee is or expects to be made
an employee, officer or director, if such services or products in any
way relate to or arise out of the services or products sold or
provided by the Company or any of its Affiliates to any such existing
customer or client during the Employment Term;
(d) The Employee will not directly or indirectly (as a
director, officer, employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own
any interest in, perform any services for, participate in or be
connected with (i) any business or organization which engages in
competition with the Company or any of its Affiliates in any
geographical area where any business is presently carried on by the
Company or any of its Affiliates, or (ii) any business or organization
which engages in competition with the Company or any of its Affiliates
in any geographical area where any business shall be hereafter, during
the period of the Employee's employment by the Company, carried on by
the Company or any of its Affiliates, if such business is then being
carried on by the Company or any of its Affiliates in such
geographical
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<PAGE> 13
area; provided, however, that the provisions of this Section 9(d)
shall not be deemed to prohibit the Employee's ownership of not more
than 1% of the total shares of all classes of stock outstanding of any
publicly held company;
(e) The Employee will not directly or indirectly solicit
for employment, or advise or recommend to any other person that they
employ or solicit for employment, any employee of the Company or any
of its Affiliates; and
(f) The Employee will not directly or indirectly hire,
engage, send any work to, place orders with, or in any manner be
associated with any supplier, contractor, subcontractor or
other person or firm which rendered manufacturing or other services,
or sold any products, to the Company or any of its Affiliates if such
action by him would have a material adverse effect on the business,
assets or financial condition of the Company or any of its Affiliates.
For purposes of this Section 9, a person or entity (including,
without limitation, the Employee) shall be deemed to be a competitor of the
Company or any of its Affiliates, or a person or entity (including, without
limitation, the Employee) shall be deemed to be engaging in competition with
the Company or any of its Affiliates, if such person or entity in any way
conducts, operates, carries out or engages (i) in the business of delivering
medical oxygen, respiratory therapy services, or durable medical equipment to
customers in their homes or (ii) in any other business engaged in by the
Company or any of its Affiliates on or prior to the date upon which such
Employee ceases to be employed hereunder.
In connection with the foregoing provisions of this Section 9,
the Employee represents that his experience, capabilities and circumstances are
such that such provisions will not prevent him from earning a livelihood. The
Employee further agrees that the limitations set forth in this Section 9
(including, without limitation, any time or territorial limitations) are
reasonable and properly required for the adequate protection of the business of
the Company (and of its Affiliates). It is understood and agreed that the
covenants made by the Employee in this Section 9 (and in Section 6 hereof)
shall survive the expiration or termination of this Agreement.
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<PAGE> 14
For purposes of this Section 9, proprietary interest in a
business is ownership, whether through direct or indirect stock holdings or
otherwise, of one percent (1%) or more of such business.
The Employee acknowledges and agrees that a remedy at law for
any breach or threatened breach of the provisions of this Section 9 would be
inadequate and, therefore, agrees that the Company and any of its Affiliates
shall be entitled to injunctive relief in addition to any other available
rights and remedies in cases of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as prohibiting the
Company or any of its Affiliates from pursuing any other rights and remedies
available for any such breach or threatened breach.
10. Binding Effect. Without limiting or diminishing the
effect of Section 8 hereof, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, legal
representatives and permitted assigns.
11. Notices. Any notice required or permitted to be
given under this Agreement shall be sufficient if in writing and either
delivered in person or sent by first class certified or registered mail,
postage prepaid, if to the Company, at the Company's principal place of
business, and if to the Employee, at his home address most recently filed with
the Company, or to such other address or addresses as either party shall have
designated in writing to the other party hereto.
12. Law Governing. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
13. Severability. If any provision of this Agreement
shall be determined to be invalid, illegal or unenforceable in whole or in
part, neither the validity of the remaining part of such provision nor the
validity of any other provision of this Agreement shall in any way be affected
thereby.
14. Waiver. Failure to insist upon strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any one or more times be
deemed a waiver
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<PAGE> 15
or relinquishment of such right or power at any other time or times.
15. Entire Agreement; Modifications. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements, oral and written, between
the parties hereto with respect to the subject matter hereof. This Agreement
may be modified or amended only by an instrument in writing signed by both
parties hereto. It is acknowledged and agreed that this Agreement shall
supersede the Employment Agreement between the Employee and Lincare Inc., dated
November 30, 1990, which agreement shall be of no further force or effect from
the date of this Agreement.
16. Survival. The provisions of Sections 6, 7 and 9
hereof shall survive and continue after the expiration or termination of this
Agreement.
17. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have duly executed
and delivered this Agreement as of the day and year first above written.
LINCARE HOLDINGS INC.
By: /s/ James T. Kelly
---------------------------------
Title: Chairman
/s/ John P. Byrnes
--------------------------------------
JOHN P. BYRNES
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<PAGE> 1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 1997, by and
between LINCARE HOLDINGS INC., a Delaware corporation (the "Company"), and
JAMES T. KELLY (the "Employee").
W I T N E S S E T H:
WHEREAS, prior to the date hereof, the Employee has been an
employee of the Company; and
WHEREAS, the Company desires to induce the Employee to
continue in the employ of the Company for the period provided in this
Agreement, and the Employee is willing to accept such employment with the
Company, all in accordance with the terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the premises
hereof and the mutual covenants contained herein, the parties hereto do hereby
covenant and agree as follows:
1. Employment. (a) The Company hereby employs the
Employee, and the Employee hereby accepts such employment with the Company,
for the period set forth in Section 2 hereof, all upon the terms and
conditions hereinafter set forth.
(b) The Employee affirms and represents that he is under
no obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement.
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<PAGE> 2
2. Term of Employment. Unless earlier terminated
as hereinafter provided, the initial term of the Employee's employment under
this Agreement shall be for a period beginning on the date hereof and ending on
December 31, 1997 (such period from the date hereof until December 31, 1997 or,
if the Employee's employment hereunder is earlier terminated, such shorter
period, being hereinafter called the "Initial Employment Term"). In the event
that the Employee continues in the employ of the Company after the end of the
Initial Employment Term (it being expressly understood and agreed that the
Company does not now, nor hereafter shall have, any obligation to continue the
Employee in its employ, whether or not on a full-time basis), then, unless
otherwise expressly agreed to by the Employee and the Company in writing, the
Employee's continued employment with the Company shall, notwithstanding
anything to the contrary expressed or implied herein, continue to be subject to
the terms and conditions of this Agreement. As used in this Agreement, the
term "Employment Term" shall mean the period beginning on the date hereof and
ending on the date of the Employee's cessation of employment with the Company,
whether such date is before, on, or after the expiration of the Initial
Employment Term.
3. Duties. The Employee shall be employed as the
Chairman of the Board of Directors of the Company, shall faithfully and
competently perform such duties as are specified in the By-laws of the Company
and shall also perform and discharge such other reasonable employment duties
and responsibilities as the Board of Directors of the Company may from time to
time prescribe. The Employee shall perform his duties at such places and times
as the Board of Directors of the Company may reasonably prescribe. Except as
may otherwise be approved in advance by the Company, and except during vacation
periods and reasonable periods of absence due to sickness, personal injury or
other disability, the Employee shall devote such time as is reasonably
necessary for the complete and satisfactory performance of his obligations
throughout the Employment Term to the services required of him hereunder.
Except as may otherwise be approved in advance by the Company, the Employee
shall render his services exclusively to the Company during the Employment Term
and shall use his best efforts, judgment and energy to improve and advance the
business and interests of the Company in a manner consistent with the duties of
his position.
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<PAGE> 3
4. Salary and Bonus. (a) Salary. As compensation for
the complete and satisfactory performance by the Employee of the services to be
performed by the Employee hereunder during the Employment Term, the Company
shall pay the Employee a base salary at the annual rate of TWO HUNDRED FORTY
THOUSAND DOLLARS ($240,000) (said amount, together with any adjustments thereto
during the Employment Term, being hereinafter referred to as the "Salary").
Any Salary payable hereunder shall be paid in regular intervals in accordance
with the Company's payroll practices. The Salary payable to the Employee
pursuant to this Section 4(a) shall be reviewed annually, as of each January 1
included in the Employment Term, and such Salary amount may be increased by
the Board of Directors of the Company in its sole discretion.
(b) Bonus. During the Employment Term, in addition to
Salary, the Employee shall have the opportunity to earn bonus compensation in
respect of each calendar year (or applicable portion thereof) during the
Employment Term, such bonus compensation ("Bonus") to be an amount determined
pursuant to a bonus plan to be mutually agreed upon by Company and the Employee
with respect to each calendar year included in the Employment Term.
Nothing contained herein and no action taken in respect of any
Bonus (or otherwise in respect of this Section 4(b)) shall create or be
construed to create a trust of any kind. The Employee's right to receive any
Bonus pursuant to this Section 4(b) shall be no greater than the right of an
unsecured general creditor of the Company to receive payment from the Company.
All bonuses under this Section 4(b) shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no
segregation of assets shall be made, to assure payment of any Bonuses
hereunder.
(c) Withholding. The payment of any Salary and Bonus
hereunder shall be subject to applicable withholding and payroll taxes, and
such other deductions as may be required under the Company's employee benefit
plans.
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<PAGE> 4
5. Benefits. During the Employment Term, the Employee
shall:
(a) be eligible to participate in all employee fringe
benefits and any pension and/or profit sharing plans that may be
provided by the Company for its key executive employees in accordance
with the provisions of any such plans, as same may be in effect on and
after the date hereof;
(b) be eligible to participate in any medical and health
plans or other employee welfare benefit plans that may be provided by
the Company for its key executive employees in accordance with the
provisions of any such plans, as same may be in effect on and after
the date hereof;
(c) be entitled to annual paid vacation in accordance
with the Company policy that may be applicable on and after the date
hereof to key executive employees;
(d) be entitled to sick leave, sick pay and disability
benefits in accordance with any Company policy that may be applicable
on and after the date hereof to key executive employees; and
(e) be entitled to reimbursement for all reasonable and
necessary out-of-pocket living and travel expenses incurred by the
Employee while away from his usual place of business in the
performance of his duties hereunder in accordance with the Company's
policies applicable on and after the date hereof in respect thereto.
6. Inventions and Confidential Information. The
Employee hereby covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of
research, design, development, production, marketing and servicing
with respect to its business and that as part of the Employee's
employment by the Company the Employee is (or may be) expected to make
new contributions and inventions of value to the Company.
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<PAGE> 5
(b) The Employee's employment hereunder creates a
relationship of confidence and trust between the Employee and the
Company with respect to certain information pertaining to the
business of the Company and its Affiliates (as hereinafter defined)
or pertaining to the business of any client or customer of the
Company or its Affiliates which may be made known to the Employee by
the Company or any of its Affiliates or by any client or customer of
the Company or any of its Affiliates or learned by the Employee
during the period of his employment.
(c) The Company possesses and will continue to possess
information that has been created, discovered or developed by, or
otherwise become known to it (including, without limitation,
information created, discovered, developed or made known by the
Employee during the period of or arising out of his employment
hereunder) or in which property rights have been or may be assigned or
otherwise conveyed to the Company, which information has commercial
value in the business in which the Company is engaged and is treated
by the Company as confidential.
(d) Any and all inventions, products, discoveries,
improvements, processes, manufacturing, marketing and service methods
or techniques, formulae, designs, styles, specifications, data bases,
computer programs (whether in source code or object code), know-how,
strategies and data, whether or not patentable or registrable under
copyright or similar statutes, made, developed or created by the
Employee (whether at the request or suggestion of the Company, any of
its Affiliates, or otherwise, whether alone or in conjunction with
others, and whether during regular hours of work or otherwise) during
the period of his employment by the Company (collectively, hereinafter
referred to as "Inventions"), which may pertain to the business,
products, or processes of the Company or any of its Affiliates, will
be promptly and fully disclosed by the Employee to an appropriate
executive officer of the Company (other than the Employee) and shall
be the Company's exclusive property, and the Employee will promptly
execute and/or deliver to an appropriate executive officer of the
Company (other than the
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<PAGE> 6
Employee) without any additional compensation therefor, all papers,
drawings, models, data, documents and other material pertaining to or
in any way relating to any Inventions made, developed or created by
him as aforesaid. For the purposes of this Agreement, the term
"Affiliate" or "Affiliates" of the Company shall mean any
corporation or other entity which is controlled, directly or
indirectly, by the Company. As used in the preceding sentence, the
word "control" shall mean, with respect to any entity, the power to
vote or direct the voting of more than 50% of the voting equity
interests in such entity.
(e) The Employee will keep confidential and will hold for
the Company's sole benefit any Invention which is to be the exclusive
property of the Company under this Section 6 for which no patent,
copyright, trademark or other right or protection is issued.
(f) The Employee also agrees that he will not without the
prior written consent of an appropriate executive officer of the
Company (other than the Employee) use for his benefit or disclose at
any time during his employment by the Company, or thereafter, except
to the extent required by the performance by him of his duties as an
employee of the Company, any information obtained or developed by him
while in the employ of the Company with respect to any Inventions or
with respect to any customers, clients, suppliers, products,
employees, financial affairs, or methods of design, distribution,
marketing, service, procurement or manufacture of the Company or any
of its Affiliates, or any confidential matter, except information
which at the time is generally known to the public other than as a
result of disclosure by him not permitted hereunder, or if such
information is required to be disclosed under court order or other
applicable law.
(g) The Employee acknowledges and agrees that a remedy at
law for any breach or threatened breach of the provisions of this
Section 6 would be inadequate and, therefore, agrees that the Company
and its Affiliates shall be entitled to injunctive relief in addition
to any
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<PAGE> 7
other available rights and remedies in case of any such breach
or threatened breach; provided, however, that nothing contained herein
shall be construed as prohibiting the Company or any of its Affiliates
from pursuing any other rights and remedies available for any such
breach or threatened breach.
(h) The Employee agrees that upon termination of his
employment hereunder for any reason, the Employee shall forthwith
return to the Company all documents and other property in his
possession belonging to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 10 hereof,
the Employee hereby expressly agrees that the foregoing provisions of
this Section 6 shall be binding upon the Employee's heirs, successors
and legal representatives.
7. Termination. (a) The Employment Term shall end
and the Employee's employment hereunder shall be terminated upon the occurrence
of any of the following:
(i) the death of the Employee;
(ii) termination of the Employee's employment hereunder by the
Company based upon the inability of the Employee to perform his duties
on account of disability or incapacity for a period of one hundred
eighty (180) or more days, whether or not consecutive, occurring
within any period of twelve (12) consecutive months; provided,
however, that such employment shall not be terminated by the Company
if it can reasonably accommodate the Employee's disability or
incapacity;
(iii) the termination of the Employee's employment hereunder by
the Employee at any time for any reason whatsoever (including, without
limitation, resignation or retirement);
(iv) termination of the Employee's employment hereunder by the
Company at any time "for cause", such
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<PAGE> 8
termination to take effect immediately upon written notice from the
Company to the Employee; or
(v) termination of the Employee's employment hereunder by
the Company at any time after December 31, 1997, other than for
"cause", such termination to take effect immediately upon written
notice from the Company to the Employee.
The following actions, failures or events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iv) above: (1) conviction of having committed a felony; (2) determination by
at least two-thirds of the members of the Board of Directors that the Employee
has committed acts of dishonesty or moral turpitude; (3) failure to follow
reasonable and lawful directives of the Board of Directors of the Company; or
(4) gross negligence or willful misconduct by the Employee in the performance
of his obligations hereunder. The term "willful" shall mean any act or failure
to act taken or omitted to be taken by the Employee not in good faith and
without reasonable belief that the act or omission was in the best interest of
the Company.
(b) Notwithstanding anything to the contrary expressed or
implied herein, and except as set forth in Section 7(b) hereof, the Company
(and its Affiliates) shall not be obligated to make any payments to the
Employee or on his behalf of whatever kind or nature by reason of the
Employee's cessation of employment other than: (1) such amounts, if any, of his
Salary and bonus compensation as shall have accrued and remained unpaid as of
the date of said cessation (including, but not limited to, the amount of any
bonus compensation payable in respect of the then-current calendar year); and
(2) such other amounts which may be otherwise payable to the Employee from the
Company's retirement plans or other benefit plans on account of such cessation
of employment (including, but to limited to, payment for any vested but unused
vacation); (3) Company shall cover the Employee under its medical and dental
plan, and life insurance through the end of the last calendar day of the month
during which the Employment Term ends, thereafter, the Employee shall be given
COBRA conversion rights for the
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<PAGE> 9
Company's medical and dental plan; and (4) notwithstanding anything to the
contrary contained herein or in any stock option agreements between Company and
the Employee, in the event that the Employment Term ends upon the occurrence of
any of any of the events specified in Section 7(a)(i),(ii) or (v) hereof, then
the Employee (or the executor or administrator of the Employee's estate or the
Employee's distributee or beneficiary) shall be entitled to exercise and
receive the full benefit of all Company stock options granted to the Employee
and which would have otherwise vested in accordance with their terms during the
twelve (12) month period immediately following the termination of this
Agreement. Accordingly, all stock options granted to the Employee which have
either vested at the time the Employment Term ends or which may vest pursuant
to subsection 7(b)(4) hereof, shall be exercisable in accordance with their
terms until the latest date specified in each such option agreement without
regard for any time limitation based upon cessation of employment by the
Employee. Nothing in this Section 7(b) shall limit the Employee's right to
contest any termination of the Employee's employment hereunder by appropriate
legal proceedings. It is understood and agreed that this Section 7(b) shall
survive the expiration or termination of this Agreement and the provisions
hereof shall be binding upon any successor in interest of the Company.
(c) No interest shall accrue on or be paid with respect
to any portion of any payments hereunder paid in accordance with the terms of
this Agreement.
8. Non-Assignability. (a) Neither this Agreement nor
any right or interest hereunder shall be assignable by the Employee, his
beneficiaries, or legal representatives without the Company's prior written
consent; provided, however, that nothing in this Section 8(a) shall preclude
the Employee from designating a beneficiary to receive any benefit payable
hereunder upon his death. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Company, nor shall any obligations of the
Company hereunder be delegated.
(b) Except as required by law, no right to receive
payments under this Agreement shall be subject to
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<PAGE> 10
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation or to exclusion, attachment, levy or similar process
or assignment by operation of law, and any attempt, voluntary or involuntary,
to effect any such action shall be null, void and of no effect.
9. Competition. During the Employee's employment by the
Company and during the twelve (12) month period commencing on the date of
cessation of the Employee's employment for any reason whatsoever:
(a) The Employee will not make any statement or perform
any act intended to advance an interest of any existing or prospective
competitor of the Company or any of its Affiliates in any way that
will or may injure an interest of the Company or any of its Affiliates
in its relationship and dealings with existing or potential customers
or clients, or solicit or encourage any other employee of the Company
or any of its Affiliates to do any act that is disloyal to the Company
or any of its Affiliates or inconsistent with the interest of the
Company or any of its Affiliate's interests or in violation of any
provision of this Agreement;
(b) The Employee will not discuss with any existing or
potential customers or clients of the Company or any of its Affiliates
the present or future availability of services or products by a
business, if the employee has or expects to acquire a proprietary
interest in such business or is or expects to be an employee, officer
or director of such business, where such services or products are
competitive with services or products which the Company or any of its
Affiliates provides during the Employment Term;
(c) The Employee will not make any statement or do any
act intended to cause any existing or potential customers (with whom
the Company has made contact) or clients of the Company or any of its
Affiliates to make use of the services or purchase the products of any
competitive business in which the Employee has or expects to acquire a
proprietary interest or in which the Employee is or expects to be made
an employee, officer or
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<PAGE> 11
director, if such services or products in any way relate to or arise
out of the services or products sold or provided by the Company or
any of its Affiliates to any such existing customer or client during
the Employment Term;
(d) The Employee will not directly or indirectly (as a
director, officer, employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own
any interest in, perform any services for, participate in or be
connected with (i) any business or organization which engages in
competition with the Company or any of its Affiliates in any
geographical area where any business is presently carried on by the
Company or any of its Affiliates, or (ii) any business or organization
which engages in competition with the Company or any of its Affiliates
in any geographical area where any business shall be hereafter, during
the period of the Employee's employment by the Company, carried on by
the Company or any of its Affiliates, if such business is then being
carried on by the Company or any of its Affiliates in such
geographical area; provided, however, that the provisions of this
Section 9(d) shall not be deemed to prohibit the Employee's ownership
of not more than 1% of the total shares of all classes of stock
outstanding of any publicly held company;
(e) The Employee will not directly or indirectly solicit
for employment, or advise or recommend to any other person that they
employ or solicit for employment, any employee of the Company or any
of its Affiliates; and
(f) The Employee will not directly or indirectly hire,
engage, send any work to, place orders with, or in any manner be
associated with any supplier, contractor, subcontractor or other
person or firm which rendered manufacturing or other services, or sold
any products, to the Company or any of its Affiliates if such action
by him would have a material adverse effect on the business, assets
or financial condition of the Company or any of its Affiliates.
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<PAGE> 12
For purposes of this Section 9, a person or entity (including,
without limitation, the Employee) shall be deemed to be a competitor of the
Company or any of its Affiliates, or a person or entity (including, without
limitation, the Employee) shall be deemed to be engaging in competition with
the Company or any of its Affiliates, if such person or entity in any way
conducts, operates, carries out or engages (i) in the business of delivering
medical oxygen, respiratory therapy services, or durable medical equipment to
customers in their homes or (ii) in any other business engaged in by the
Company or any of its Affiliates on or prior to the date upon which such
Employee ceases to be employed hereunder.
In connection with the foregoing provisions of this Section 9,
the Employee represents that his experience, capabilities and circumstances are
such that such provisions will not prevent him from earning a livelihood. The
Employee further agrees that the limitations set forth in this Section 9
(including, without limitation, any time or territorial limitations) are
reasonable and properly required for the adequate protection of the business of
the Company (and of its Affiliates). It is understood and agreed that the
covenants made by the Employee in this Section 9 (and in Section 6 hereof)
shall survive the expiration or termination of this Agreement.
For purposes of this Section 9, proprietary interest in a
business is ownership, whether through direct or indirect stock holdings or
otherwise, of one percent (1%) or more of such business.
The Employee acknowledges and agrees that a remedy at law for
any breach or threatened breach of the provisions of this Section 9 would be
inadequate and, therefore, agrees that the Company and any of its Affiliates
shall be entitled to injunctive relief in addition to any other available
rights and remedies in cases of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as prohibiting the
Company or any of its Affiliates from pursuing any other rights and remedies
available for any such breach or threatened breach.
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<PAGE> 13
10. Binding Effect. Without limiting or diminishing the
effect of Section 8 hereof, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, legal
representatives and permitted assigns.
11. Notices. Any notice required or permitted to be
given under this Agreement shall be sufficient if in writing and either
delivered in person or sent by first class certified or registered mail,
postage prepaid, if to the Company, at the Company's principal place of
business, and if to the Employee, at his home address most recently filed with
the Company, or to such other address or addresses as either party shall have
designated in writing to the other party hereto.
12. Law Governing. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
13. Severability. If any provision of this Agreement
shall be determined to be invalid, illegal or unenforceable in whole or in
part, neither the validity of the remaining part of such provision nor the
validity of any other provision of this Agreement shall in any way be affected
thereby.
14. Waiver. Failure to insist upon strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.
15. Entire Agreement; Modifications. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements, oral and written, between
the parties hereto with respect to the subject matter hereof. This Agreement
may be modified or amended only by an instrument in writing signed by both
parties hereto. It is acknowledged and agreed that this Agreement shall
supersede the Employment Agreement between the
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<PAGE> 14
Employee and Lincare Inc., dated November 1, 1993, which agreement shall be of
no further force or effect from the date of this Agreement.
16. Survival. The provisions of Sections 6, 7 and 9
hereof shall survive and continue after the expiration or termination of this
Agreement.
17. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have duly executed
and delivered this Agreement as of the day and year first above written.
LINCARE HOLDINGS INC.
By: /s/ John P. Byrnes
---------------------------------
Title: CEO
/s/ James T. Kelly
---------------------------------
JAMES T. KELLY
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<PAGE> 1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 1997, by and
between LINCARE HOLDINGS INC., a Delaware corporation (the "Company"), and
HOWARD R. DEUTSCH (the "Employee").
W I T N E S S E T H:
WHEREAS, prior to the date hereof, the Employee has been an
employee of the Company; and
WHEREAS, the Company desires to induce the Employee to
continue in the employ of the Company for the period provided in this
Agreement, and the Employee is willing to accept such employment with the
Company on a full-time basis, all in accordance with the terms and conditions
set forth below;
NOW, THEREFORE, for and in consideration of the premises
hereof and the mutual covenants contained herein, the parties hereto do hereby
covenant and agree as follows:
1. Employment. (a) The Company hereby employs the
Employee, and the Employee hereby accepts such employment with the Company, for
the period set forth in Section 2 hereof, all upon the terms and conditions
hereinafter set forth.
(b) The Employee affirms and represents that he is under
no obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement.
33
<PAGE> 2
2. Term of Employment. Unless earlier terminated
as hereinafter provided, the initial term of the Employee's employment under
this Agreement shall be for a period beginning on the date hereof and ending on
December 31, 1997 (such period from the date hereof until December 31, 1997 or,
if the Employee's employment hereunder is earlier terminated, such shorter
period, being hereinafter called the "Initial Employment Term"). In the event
that the Employee continues in the full-time employ of the Company after the
end of the Initial Employment Term (it being expressly understood and agreed
that the Company does not now, nor hereafter shall have, any obligation to
continue the Employee in its employ, whether or not on a full-time basis),
then, unless otherwise expressly agreed to by the Employee and the Company in
writing, the Employee's continued employment with the Company shall,
notwithstanding anything to the contrary expressed or implied herein, continue
to be subject to the terms and conditions of this Agreement. As used in this
Agreement, the term "Employment Term" shall mean the period beginning on the
date hereof and ending on the date of the Employee's cessation of employment
with the Company, whether such date is before, on, or after the expiration of
the Initial Employment Term.
3. Duties. The Employee shall be employed as the
Executive Vice President and General Counsel of the Company, shall faithfully
and competently perform such duties as are specified in the By-laws of the
Company and shall also perform and discharge such other reasonable employment
duties and responsibilities as the Board of Directors of the Company may from
time to time prescribe. The Employee shall perform his duties at such places
and times as the Board of Directors of the Company may reasonably prescribe.
Except as may otherwise be approved in advance by the Company, and except
during vacation periods and reasonable periods of absence due to sickness,
personal injury or other disability, the Employee shall devote his full time
throughout the Employment Term to the services required of him hereunder.
Except as may otherwise be approved in advance by the Company, the Employee
shall render his services exclusively to the Company during the Employment Term
and shall use his best efforts, judgment and energy to improve and advance the
business and interests of the Company in a manner consistent with the duties of
his position.
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<PAGE> 3
4. Salary and Bonus. (a) Salary. As compensation for
the complete and satisfactory performance by the Employee of the services to be
performed by the Employee hereunder during the Employment Term, the Company
shall pay the Employee a base salary at the annual rate of ONE HUNDRED EIGHTY
THOUSAND DOLLARS ($180,000) (said amount, together with any adjustments thereto
during the Employment Term, being hereinafter referred to as the "Salary").
Any Salary payable hereunder shall be paid in regular intervals in accordance
with the Company's payroll practices. The Salary payable to the Employee
pursuant to this Section 4(a) shall be reviewed annually, as of each January 1
included in the Employment Term, and such Salary amount may be increased by
the Board of Directors of the Company in its sole discretion.
(b) Bonus. During the Employment Term, in addition to
Salary, the Employee shall have the opportunity to earn bonus compensation in
respect of each calendar year (or applicable portion thereof) during the
Employment Term, such bonus compensation ("Bonus") to be an amount determined
pursuant to a bonus plan to be mutually agreed upon by Company and the Employee
with respect to each calendar year included in the Employment Term.
Nothing contained herein and no action taken in respect of any
Bonus (or otherwise in respect of this Section 4(b)) shall create or be
construed to create a trust of any kind. The Employee's right to receive any
Bonus pursuant to this Section 4(b) shall be no greater than the right of an
unsecured general creditor of the Company to receive payment from the Company.
All bonuses under this Section 4(b) shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no
segregation of assets shall be made, to assure payment of any Bonuses
hereunder.
(c) Withholding. The payment of any Salary and Bonus
hereunder shall be subject to applicable withholding and payroll taxes, and
such other deductions as may be required under the Company's employee benefit
plans.
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<PAGE> 4
5. Benefits. During the Employment Term, the Employee
shall:
(a) be eligible to participate in all employee fringe
benefits and any pension and/or profit sharing plans that may be
provided by the Company for its key executive employees in accordance
with the provisions of any such plans, as same may be in effect on and
after the date hereof;
(b) be eligible to participate in any medical and health
plans or other employee welfare benefit plans that may be provided by
the Company for its key executive employees in accordance with the
provisions of any such plans, as same may be in effect on and after
the date hereof;
(c) be entitled to annual paid vacation in accordance
with the Company policy that may be applicable on and after the date
hereof to key executive employees;
(d) be entitled to sick leave, sick pay and disability
benefits in accordance with any Company policy that may be applicable
on and after the date hereof to key executive employees; and
(e) be entitled to reimbursement for all reasonable and
necessary out-of-pocket living and travel expenses incurred by the
Employee while away from his usual place of business in the
performance of his duties hereunder in accordance with the Company's
policies applicable on and after the date hereof in respect thereto.
6. Inventions and Confidential Information. The
Employee hereby covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of
research, design, development, production, marketing and servicing
with respect to its business and that as part of the Employee's
employment by the Company the Employee is (or may be) expected to make
new contributions and inventions of value to the Company.
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<PAGE> 5
(b) The Employee's employment hereunder creates a
relationship of confidence and trust between the Employee and the
Company with respect to certain information pertaining to the business
of the Company and its Affiliates (as hereinafter defined) or
pertaining to the business of any client or customer of the Company or
its Affiliates which may be made known to the Employee by the Company
or any of its Affiliates or by any client or customer of the Company or
any of its Affiliates or learned by the Employee during the period of
his employment.
(c) The Company possesses and will continue to possess
information that has been created, discovered or developed by, or
otherwise become known to it (including, without limitation,
information created, discovered, developed or made known by the
Employee during the period of or arising out of his employment
hereunder) or in which property rights have been or may be assigned or
otherwise conveyed to the Company, which information has commercial
value in the business in which the Company is engaged and is treated
by the Company as confidential.
(d) Any and all inventions, products, discoveries,
improvements, processes, manufacturing, marketing and service methods
or techniques, formulae, designs, styles, specifications, data bases,
computer programs (whether in source code or object code), know-how,
strategies and data, whether or not patentable or registrable under
copyright or similar statutes, made, developed or created by the
Employee (whether at the request or suggestion of the Company, any of
its Affiliates, or otherwise, whether alone or in conjunction with
others, and whether during regular hours of work or otherwise) during
the period of his employment by the Company (collectively, hereinafter
referred to as "Inventions"), which may pertain to the business,
products, or processes of the Company or any of its Affiliates, will
be promptly and fully disclosed by the Employee to an appropriate
executive officer of the Company (other than the Employee) and shall
be the Company's exclusive property, and the Employee will promptly
execute and/or deliver to an appropriate execute and/or deliver to an
appropriate executive officer of the Company (other than the
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<PAGE> 6
Employee) without any additional compensation therefor, all papers,
drawings, models, data, documents and other material pertaining to or
in any way relating to any Inventions made, developed or created by him
as aforesaid. For the purposes of this Agreement, the term
"Affiliate" or "Affiliates" of the Company shall mean any corporation
or other entity which is controlled, directly or indirectly, by the
Company. As used in the preceding sentence, the word "control" shall
mean, with respect to any entity, the power to vote or direct the
voting of more than 50% of the voting equity interests in such entity.
(e) The Employee will keep confidential and will hold for
the Company's sole benefit any Invention which is to be the exclusive
property of the Company under this Section 6 for which no patent,
copyright, trademark or other right or protection is issued.
(f) The Employee also agrees that he will not without the
prior written consent of an appropriate executive officer of the
Company (other than the Employee) use for his benefit or disclose at
any time during his employment by the Company, or thereafter, except
to the extent required by the performance by him of his duties as an
employee of the Company, any information obtained or developed by him
while in the employ of the Company with respect to any Inventions or
with respect to any customers, clients, suppliers, products,
employees, financial affairs, or methods of design, distribution,
marketing, service, procurement or manufacture of the Company or any
of its Affiliates, or any confidential matter, except information
which at the time is generally known to the public other than as a
result of disclosure by him not permitted hereunder, or if such
information is required to be disclosed under court order or other
applicable law.
(g) The Employee acknowledges and agrees that a remedy at
law for any breach or threatened breach of the provisions of this
Section 6 would be inadequate and, therefore, agrees that the Company
and its Affiliates shall be entitled to injunctive relief in addition
to any
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<PAGE> 7
other available rights and remedies in case of any such breach
or threatened breach; provided, however, that nothing contained herein
shall be construed as prohibiting the Company or any of its Affiliates
from pursuing any other rights and remedies available for any such
breach or threatened breach.
(h) The Employee agrees that upon termination of his
employment hereunder for any reason, the Employee shall forthwith
return to the Company all documents and other property in his
possession belonging to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 10 hereof,
the Employee hereby expressly agrees that the foregoing provisions of
this Section 6 shall be binding upon the Employee's heirs, successors
and legal representatives.
7. Termination. (a) The Employment Term shall end
and the Employee's employment hereunder shall be terminated upon the occurrence
of any of the following:
(i) the death of the Employee;
(ii) termination of the Employee's employment hereunder by the
Company based upon the inability of the Employee to perform his duties
on account of disability or incapacity for a period of one hundred
eighty (180) or more days, whether or not consecutive, occurring
within any period of twelve (12) consecutive months; provided,
however, that such employment shall not be terminated by the Company
if it can reasonably accommodate the Employee's disability or
incapacity;
(iii) the termination of the Employee's employment hereunder by
the Employee at any time for any reason whatsoever (including, without
limitation, resignation or retirement);
(iv) termination of the Employee's employment hereunder by the
Company at any time "for cause", such
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<PAGE> 8
termination to take effect immediately upon written notice from the
Company to the Employee; or
(v) termination of the Employee's employment hereunder by
the Company at any time after December 31, 1997, other than for
"cause", such termination to take effect immediately upon written
notice from the Company to the Employee.
The following actions, failures or events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iv) above: (1) conviction of having committed a felony; (2) determination by
at least two-thirds of the members of the Board of Directors that the Employee
has committed acts of dishonesty or moral turpitude; (3) failure to follow
reasonable and lawful directives of the Board of Directors of the Company; or
(4) gross negligence or willful misconduct by the Employee in the performance
of his obligations hereunder. The term "willful" shall mean any act or failure
to act taken or omitted to be taken by the Employee not in good faith and
without reasonable belief that the act or omission was in the best interest of
the Company.
(b) Notwithstanding anything to the contrary expressed or
implied herein, and except as set forth in Section 7(b) hereof, the Company
(and its Affiliates) shall not be obligated to make any payments to the
Employee or on his behalf of whatever kind or nature by reason of the
Employee's cessation of employment other than: (1) such amounts, if any, of his
Salary and bonus compensation as shall have accrued and remained unpaid as of
the date of said cessation (including, but not limited to, the amount of any
bonus compensation payable in respect of the then-current calendar year); and
(2) such other amounts which may be otherwise payable to the Employee from the
Company's retirement plans or other benefit plans on account of such cessation
of employment (including, but to limited to, payment for any vested but unused
vacation); (3) Company shall cover the Employee under its medical and dental
plan, and life insurance through the end of the last calendar day of the month
during which the Employment Term ends, thereafter, the Employee shall be given
COBRA conversion rights for the
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<PAGE> 9
Company's medical and dental plan; and (4) notwithstanding anything to the
contrary contained herein or in any stock option agreements between Company and
the Employee, in the event that the Employment Term ends upon the occurrence of
any of any of the events specified in Section 7(a)(i),(ii) or (v) hereof, then
the Employee (or the executor or administrator of the Employee's estate or the
Employee's distributee or beneficiary) shall be entitled to exercise and
receive the full benefit of all Company stock options granted to the Employee
and which would otherwise have vested in accordance with their terms during the
twelve (12) month period immediately following the termination of this
Agreement. Accordingly, all stock options granted to the Employee which have
either vested at the time the Employment Term ends or which may vest pursuant
to subsection 7(b)(4) hereof, shall be exercisable in accordance with their
terms until the latest date specified in each such option agreement without
regard for any time limitation based upon cessation of employment by the
Employee. Nothing in this Section 7(b) shall limit the Employee's right to
contest any termination of the Employee's employment hereunder by appropriate
legal proceedings. It is understood and agreed that this Section 7(b) shall
survive the expiration or termination of this Agreement and the provisions
hereof shall be binding upon any successor in interest of the Company.
(c) No interest shall accrue on or be paid with respect
to any portion of any payments hereunder paid in accordance with the terms of
this Agreement.
8. Non-Assignability. (a) Neither this Agreement nor
any right or interest hereunder shall be assignable by the Employee, his
beneficiaries, or legal representatives without the Company's prior written
consent; provided, however, that nothing in this Section 8(a) shall preclude
the Employee from designating a beneficiary to receive any benefit payable
hereunder upon his death. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Company, nor shall any obligations of the
Company hereunder be delegated.
(b) Except as required by law, no right to receive
payments under this Agreement shall be subject to
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<PAGE> 10
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation or to exclusion, attachment, levy or similar process
or assignment by operation of law, and any attempt, voluntary or involuntary,
to effect any such action shall be null, void and of no effect.
9. Competition. During the Employee's employment by the
Company and during the twelve (12) month period commencing on the date of
cessation of the Employee's employment for any reason whatsoever:
(a) The Employee will not make any statement or perform
any act intended to advance an interest of any existing or prospective
competitor of the Company or any of its Affiliates in any way that
will or may injure an interest of the Company or any of its Affiliates
in its relationship and dealings with existing or potential customers
or clients, or solicit or encourage any other employee of the Company
or any of its Affiliates to do any act that is disloyal to the Company
or any of its Affiliates or inconsistent with the interest of the
Company or any of its Affiliate's interests or in violation of any
provision of this Agreement;
(b) The Employee will not discuss with any existing or
potential customers or clients of the Company or any of its Affiliates
the present or future availability of services or products by a
business, if the employee has or expects to acquire a proprietary
interest in such business or is or expects to be an employee, officer
or director of such business, where such services or products are
competitive with services or products which the Company or any of its
Affiliates provides during the Employment Term;
(c) The Employee will not make any statement or do any
act intended to cause any existing or potential customers (with whom
the Company has made contact) or clients of the Company or any of its
Affiliates to make use of the services or purchase the products
of any competitive business in which the Employee has or expects to
acquire a proprietary interest or in which the Employee is or expects
to be made an employee, officer or
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<PAGE> 11
director, if such services or products in any way relate to or arise
out of the services or products sold or provided by the Company or
any of its Affiliates to any such existing customer or client during
the Employment Term;
(d) The Employee will not directly or indirectly (as a
director, officer, employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own
any interest in, perform any services for, participate in or be
connected with (i) any business or organization which engages in
competition with the Company or any of its Affiliates in any
geographical area where any business is presently carried on by the
Company or any of its Affiliates, or (ii) any business or organization
which engages in competition with the Company or any of its Affiliates
in any geographical area where any business shall be hereafter, during
the period of the Employee's employment by the Company, carried on by
the Company or any of its Affiliates, if such business is then being
carried on by the Company or any of its Affiliates in such
geographical area; provided, however, that the provisions of this
Section 9(d) shall not be deemed to prohibit the Employee's ownership
of not more than 1% of the total shares of all classes of stock
outstanding of any publicly held company;
(e) The Employee will not directly or indirectly solicit
for employment, or advise or recommend to any other person that they
employ or solicit for employment, any employee of the Company or any
of its Affiliates; and
(f) The Employee will not directly or indirectly hire,
engage, send any work to, place orders with, or in any manner be
associated with any supplier, contractor, subcontractor or other
person or firm which rendered manufacturing or other services, or sold
any products, to the Company or any of its Affiliates if such action
by him would have a material adverse effect on the business,
assets or financial condition of the Company or any of its Affiliates.
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<PAGE> 12
For purposes of this Section 9, a person or entity (including,
without limitation, the Employee) shall be deemed to be a competitor of the
Company or any of its Affiliates, or a person or entity (including, without
limitation, the Employee) shall be deemed to be engaging in competition with
the Company or any of its Affiliates, if such person or entity in any way
conducts, operates, carries out or engages (i) in the business of delivering
medical oxygen, respiratory therapy services, or durable medical equipment to
customers in their homes or (ii) in any other business engaged in by the
Company or any of its Affiliates on or prior to the date upon which such
Employee ceases to be employed hereunder.
In connection with the foregoing provisions of this Section 9,
the Employee represents that his experience, capabilities and circumstances are
such that such provisions will not prevent him from earning a livelihood. The
Employee further agrees that the limitations set forth in this Section 9
(including, without limitation, any time or territorial limitations) are
reasonable and properly required for the adequate protection of the business of
the Company (and of its Affiliates). It is understood and agreed that the
covenants made by the Employee in this Section 9 (and in Section 6 hereof)
shall survive the expiration or termination of this Agreement.
For purposes of this Section 9, proprietary interest in a
business is ownership, whether through direct or indirect stock holdings or
otherwise, of one percent (1%) or more of such business.
The Employee acknowledges and agrees that a remedy at law for
any breach or threatened breach of the provisions of this Section 9 would be
inadequate and, therefore, agrees that the Company and any of its Affiliates
shall be entitled to injunctive relief in addition to any other available
rights and remedies in cases of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as prohibiting the
Company or any of its Affiliates from pursuing any other rights and remedies
available for any such breach or threatened breach.
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<PAGE> 13
10. Binding Effect. Without limiting or diminishing the
effect of Section 8 hereof, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, legal
representatives and permitted assigns.
11. Notices. Any notice required or permitted to be
given under this Agreement shall be sufficient if in writing and either
delivered in person or sent by first class certified or registered mail,
postage prepaid, if to the Company, at the Company's principal place of
business, and if to the Employee, at his home address most recently filed with
the Company, or to such other address or addresses as either party shall have
designated in writing to the other party hereto.
12. Law Governing. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
13. Severability. If any provision of this Agreement
shall be determined to be invalid, illegal or unenforceable in whole or in
part, neither the validity of the remaining part of such provision nor the
validity of any other provision of this Agreement shall in any way be affected
thereby.
14. Waiver. Failure to insist upon strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.
15. Entire Agreement; Modifications. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements, oral and written, between
the parties hereto with respect to the subject matter hereof. This Agreement
may be modified or amended only by an instrument in writing signed by both
parties hereto. It is acknowledged and agreed that this Agreement shall
supersede the Employment Agreement between the
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<PAGE> 14
Employee and Lincare Inc., dated November 1, 1993, which agreement shall be of
no further force or effect from the date of this Agreement.
16. Survival. The provisions of Sections 6, 7 and 9
hereof shall survive and continue after the expiration or termination of this
Agreement.
17. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have duly executed
and delivered this Agreement as of the day and year first above written.
LINCARE HOLDINGS INC.
By: /s/ John P. Byrnes
----------------------------------
Title: CEO
/s/ Howard R. Deutsch
---------------------------------
HOWARD R. DEUTSCH
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<PAGE> 1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 1997, by and
between LINCARE HOLDINGS INC., a Delaware corporation (the "Company"), and
JAMES M. EMANUEL (the "Employee").
W I T N E S S E T H:
WHEREAS, prior to the date hereof, the Employee has been an
employee of the Company; and
WHEREAS, the Company desires to induce the Employee to
continue in the employ of the Company for the period provided in this
Agreement, and the Employee is willing to accept such employment with the
Company on a full-time basis, all in accordance with the terms and conditions
set forth below;
NOW, THEREFORE, for and in consideration of the premises
hereof and the mutual covenants contained herein, the parties hereto do hereby
covenant and agree as follows:
1. Employment. (a) The Company hereby employs the
Employee, and the Employee hereby accepts such employment with the Company, for
the period set forth in Section 2 hereof, all upon the terms and conditions
hereinafter set forth.
(b) The Employee affirms and represents that he is under
no obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement.
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<PAGE> 2
2. Term of Employment. Unless earlier terminated
as hereinafter provided, the initial term of the Employee's employment under
this Agreement shall be for a period beginning on the date hereof and ending on
December 31, 1997 (such period from the date hereof until December 31, 1997 or,
if the Employee's employment hereunder is earlier terminated, such shorter
period, being hereinafter called the "Initial Employment Term"). In the event
that the Employee continues in the full-time employ of the Company after the
end of the Initial Employment Term (it being expressly understood and agreed
that the Company does not now, nor hereafter shall have, any obligation to
continue the Employee in its employ, whether or not on a full-time basis),
then, unless otherwise expressly agreed to by the Employee and the Company in
writing, the Employee's continued employment with the Company shall,
notwithstanding anything to the contrary expressed or implied herein, continue
to be subject to the terms and conditions of this Agreement. As used in this
Agreement, the term "Employment Term" shall mean the period beginning on the
date hereof and ending on the date of the Employee's cessation of employment
with the Company, whether such date is before, on, or after the expiration of
the Initial Employment Term.
3. Duties. The Employee shall be employed as the Chief
Financial Officer of the Company, shall faithfully and competently perform such
duties as are specified in the By-laws of the Company and shall also perform
and discharge such other reasonable employment duties and responsibilities as
the Board of Directors of the Company may from time to time prescribe. The
Employee shall perform his duties at such places and times as the Board of
Directors of the Company may reasonably prescribe. Except as may otherwise be
approved in advance by the Company, and except during vacation periods and
reasonable periods of absence due to sickness, personal injury or other
disability, the Employee shall devote his full time throughout the Employment
Term to the services required of him hereunder. Except as may otherwise be
approved in advance by the Company, the Employee shall render his services
exclusively to the Company during the Employment Term and shall use his best
efforts, judgment and energy to improve and advance the business and interests
of the Company in a manner consistent with the duties of his position.
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<PAGE> 3
4. Salary and Bonus. (a) Salary. As compensation for
the complete and satisfactory performance by the Employee of the services to be
performed by the Employee hereunder during the Employment Term, the Company
shall pay the Employee a base salary at the annual rate of ONE HUNDRED SEVENTY
FIVE THOUSAND DOLLARS ($175,000) (said amount, together with any adjustments
thereto during the Employment Term, being hereinafter referred to as the
"Salary"). Any Salary payable hereunder shall be paid in regular intervals in
accordance with the Company's payroll practices. The Salary payable to the
Employee pursuant to this Section 4(a) shall be reviewed annually, as of each
January 1 included in the Employment Term, and such Salary amount may be
increased by the Board of Directors of the Company in its sole discretion.
(b) Bonus. During the Employment Term, in addition to
Salary, the Employee shall have the opportunity to earn bonus compensation in
respect of each calendar year (or applicable portion thereof) during the
Employment Term, such bonus compensation ("Bonus") to be an amount determined
pursuant to a bonus plan to be mutually agreed upon by Company and the Employee
with respect to each calendar year included in the Employment Term.
Nothing contained herein and no action taken in respect of any
Bonus (or otherwise in respect of this Section 4(b)) shall create or be
construed to create a trust of any kind. The Employee's right to receive any
Bonus pursuant to this Section 4(b) shall be no greater than the right of an
unsecured general creditor of the Company to receive payment from the Company.
All bonuses under this Section 4(b) shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no
segregation of assets shall be made, to assure payment of any Bonuses
hereunder.
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<PAGE> 4
(c) Withholding. The payment of any Salary and Bonus
hereunder shall be subject to applicable withholding and payroll taxes, and
such other deductions as may be required under the Company's employee benefit
plans.
5. Benefits. During the Employment Term, the Employee
shall:
(a) be eligible to participate in all employee fringe
benefits and any pension and/or profit sharing plans that may be
provided by the Company for its key executive employees in accordance
with the provisions of any such plans, as same may be in effect on and
after the date hereof;
(b) be eligible to participate in any medical and health
plans or other employee welfare benefit plans that may be provided by
the Company for its key executive employees in accordance with the
provisions of any such plans, as same may be in effect on and after
the date hereof;
(c) be entitled to annual paid vacation in accordance
with the Company policy that may be applicable on and after the date
hereof to key executive employees;
(d) be entitled to sick leave, sick pay and disability
benefits in accordance with any Company policy that may be applicable
on and after the date hereof to key executive employees; and
(e) be entitled to reimbursement for all reasonable and
necessary out-of-pocket living and travel expenses incurred by the
Employee while away from his usual place of business in the
performance of his duties hereunder in accordance with the Company's
policies applicable on and after the date hereof in respect thereto.
6. Inventions and Confidential Information. The
Employee hereby covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of
research, design, development, production, marketing
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<PAGE> 5
and servicing with respect to its business and that as part of the
Employee's employment by the Company the Employee is (or may be)
expected to make new contributions and inventions of value to the
Company.
(b) The Employee's employment hereunder creates a
relationship of confidence and trust between the Employee and the
Company with respect to certain information pertaining to the business
of the Company and its Affiliates (as hereinafter defined) or
pertaining to the business of any client or customer of the Company or
its Affiliates which may be made known to the Employee by the Company
or any of its Affiliates or by any client or customer of the Company or
any of its Affiliates or learned by the Employee during the period of
his employment.
(c) The Company possesses and will continue to possess
information that has been created, discovered or developed by, or
otherwise become known to it (including, without limitation,
information created, discovered, developed or made known by the
Employee during the period of or arising out of his employment
hereunder) or in which property rights have been or may be assigned or
otherwise conveyed to the Company, which information has commercial
value in the business in which the Company is engaged and is treated
by the Company as confidential.
(d) Any and all inventions, products, discoveries,
improvements, processes, manufacturing, marketing and service methods
or techniques, formulae, designs, styles, specifications, data bases,
computer programs (whether in source code or object code), know-how,
strategies and data, whether or not patentable or registrable under
copyright or similar statutes, made, developed or created by the
Employee (whether at the request or suggestion of the Company, any of
its Affiliates, or otherwise, whether alone or in conjunction with
others, and whether during regular hours of work or otherwise) during
the period of his employment by the Company (collectively, hereinafter
referred to as "Inventions"), which may pertain to the business,
products, or processes of the Company or any of its Affiliates, will
be promptly and fully disclosed by
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<PAGE> 6
the Employee to an appropriate executive officer of the Company (other
than the Employee) and shall be the Company's exclusive property, and
the Employee will promptly execute and/or deliver to an appropriate
executive officer of the Company (other than the Employee)
without any additional compensation therefor, all papers, drawings,
models, data, documents and other material pertaining to or in any way
relating to any Inventions made, developed or created by him as
aforesaid. For the purposes of this Agreement, the term "Affiliate"
or "Affiliates" of the Company shall mean any corporation or other
entity which is controlled, directly or indirectly, by the Company.
As used in the preceding sentence, the word "control" shall mean, with
respect to any entity, the power to vote or direct the voting of more
than 50% of the voting equity interests in such entity.
(e) The Employee will keep confidential and will hold for
the Company's sole benefit any Invention which is to be the exclusive
property of the Company under this Section 6 for which no patent,
copyright, trademark or other right or protection is issued.
(f) The Employee also agrees that he will not without the
prior written consent of an appropriate executive officer of the
Company (other than the Employee) use for his benefit or disclose at
any time during his employment by the Company, or thereafter, except
to the extent required by the performance by him of his duties as an
employee of the Company, any information obtained or developed by him
while in the employ of the Company with respect to any Inventions or
with respect to any customers, clients, suppliers, products,
employees, financial affairs, or methods of design, distribution,
marketing, service, procurement or manufacture of the Company or any
of its Affiliates, or any confidential matter, except information
which at the time is generally known to the public other than as a
result of disclosure by him not permitted hereunder, or if such
information is required to be disclosed under court order or other
applicable law.
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<PAGE> 7
(g) The Employee acknowledges and agrees that a remedy at
law for any breach or threatened breach of the provisions of this
Section 6 would be inadequate and, therefore, agrees that the Company
and its Affiliates shall be entitled to injunctive relief in addition
to any other available rights and remedies in case of any such breach
or threatened breach; provided, however, that nothing contained herein
shall be construed as prohibiting the Company or any of its Affiliates
from pursuing any other rights and remedies available for any such
breach or threatened breach.
(h) The Employee agrees that upon termination of his
employment hereunder for any reason, the Employee shall forthwith
return to the Company all documents and other property in his
possession belonging to the Company or any of its Affiliates.
(i) Without limiting the generality of Section 10 hereof,
the Employee hereby expressly agrees that the foregoing provisions of
this Section 6 shall be binding upon the Employee's heirs, successors
and legal representatives.
7. Termination. (a) The Employment Term shall end
and the Employee's employment hereunder shall be terminated upon the
occurrence of any of the following:
(i) the death of the Employee;
(ii) termination of the Employee's employment hereunder by the
Company based upon the inability of the Employee to perform his duties
on account of disability or incapacity for a period of one hundred
eighty (180) or more days, whether or not consecutive, occurring
within any period of twelve (12) consecutive months; provided,
however, that such employment shall not be terminated by the Company
if it can reasonably accommodate the Employee's disability or
incapacity;
(iii) the termination of the Employee's employment hereunder by
the Employee at any time for any reason
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<PAGE> 8
whatsoever (including, without limitation, resignation or retirement);
(iv) termination of the Employee's employment hereunder by the
Company at any time "for cause", such termination to take effect
immediately upon written notice from the Company to the Employee; or
(v) termination of the Employee's employment hereunder by
the Company at any time after December 31, 1997, other than for
"cause", such termination to take effect immediately upon written
notice from the Company to the Employee.
The following actions, failures or events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iv) above: (1) conviction of having committed a felony; (2) determination by
at least two-thirds of the members of the Board of Directors that the Employee
has committed acts of dishonesty or moral turpitude; (3) failure to follow
reasonable and lawful directives of the Board of Directors of the Company; or
(4) gross negligence or willful misconduct by the Employee in the performance
of his obligations hereunder. The term "willful" shall mean any act or failure
to act taken or omitted to be taken by the Employee not in good faith and
without reasonable belief that the act or omission was in the best interest of
the Company.
(b) Notwithstanding anything to the contrary expressed or
implied herein, and except as set forth in Section 7(b) hereof, the Company
(and its Affiliates) shall not be obligated to make any payments to the
Employee or on his behalf of whatever kind or nature by reason of the
Employee's cessation of employment other than: (1) such amounts, if any, of his
Salary and bonus compensation as shall have accrued and remained unpaid as of
the date of said cessation (including, but not limited to, the amount of any
bonus compensation payable in respect of the then-current calendar year); and
(2) such other amounts which may be otherwise payable to the Employee from the
Company's retirement plans or other benefit plans on account of such cessation
of employment (including, but to limited to, payment
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<PAGE> 9
for any vested but unused vacation); (3) Company shall cover the Employee under
its medical and dental plan, and life insurance through the end of the last
calendar day of the month during which the Employment Term ends, thereafter,
the Employee shall be given COBRA conversion rights for the Company's medical
and dental plan; and (4) notwithstanding anything to the contrary contained
herein or in any stock option agreements between Company and the Employee, in
the event that the Employment Term ends upon the occurrence of any of any of
the events specified in Section 7(a)(i),(ii) or (v) hereof, then the Employee
(or the executor or administrator of the Employee's estate or the Employee's
distributee or beneficiary) shall be entitled to exercise and receive the full
benefit of all Company stock options granted to the Employee and which would
otherwise have vested in accordance with their terms during the twelve (12)
month period immediately following the termination of this Agreement.
Accordingly, all stock options granted to the Employee which have either vested
at the time the Employment Term ends or which may vest pursuant to subsection
7(b)(4) hereof, shall be exercisable in accordance with their terms until the
latest date specified in each such option agreement without regard for any time
limitation based upon cessation of employment by the Employee. Nothing in this
Section 7(b) shall limit the Employee's right to contest any termination of the
Employee's employment hereunder by appropriate legal proceedings. It is
understood and agreed that this Section 7(b) shall survive the expiration or
termination of this Agreement and the provisions hereof shall be binding upon
any successor in interest of the Company.
(c) No interest shall accrue on or be paid with respect
to any portion of any payments hereunder paid in accordance with the terms of
this Agreement.
8. Non-Assignability. (a) Neither this Agreement nor
any right or interest hereunder shall be assignable by the Employee, his
beneficiaries, or legal representatives without the Company's prior written
consent; provided, however, that nothing in this Section 8(a) shall preclude
the Employee from designating a beneficiary to receive any benefit payable
hereunder upon his death. Neither this Agreement nor any right or interest
hereunder shall be assignable by the
-9-
<PAGE> 10
Company, nor shall any obligations of the Company hereunder be delegated.
(b) Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to exclusion, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
9. Competition. During the Employee's employment by the
Company and during the twelve (12) month period commencing on the date of
cessation of the Employee's employment for any reason whatsoever:
(a) The Employee will not make any statement or perform
any act intended to advance an interest of any existing or prospective
competitor of the Company or any of its Affiliates in any way that
will or may injure an interest of the Company or any of its Affiliates
in its relationship and dealings with existing or potential customers
or clients, or solicit or encourage any other employee of the Company
or any of its Affiliates to do any act that is disloyal to the Company
or any of its Affiliates or inconsistent with the interest of the
Company or any of its Affiliate's interests or in violation of any
provision of this Agreement;
(b) The Employee will not discuss with any existing or
potential customers or clients of the Company or any of its Affiliates
the present or future availability of services or products by a
business, if the employee has or expects to acquire a proprietary
interest in such business or is or expects to be an employee, officer
or director of such business, where such services or products are
competitive with services or products which the Company or any of its
Affiliates provides during the Employment Term;
-10-
<PAGE> 11
(c) The Employee will not make any statement or do any
act intended to cause any existing or potential customers (with whom
the Company has made contact) or clients of the Company or any
of its Affiliates to make use of the services or purchase the products
of any competitive business in which the Employee has or expects to
acquire a proprietary interest or in which the Employee is or expects
to be made an employee, officer or director, if such services or
products in any way relate to or arise out of the services or products
sold or provided by the Company or any of its Affiliates to any such
existing customer or client during the Employment Term;
(d) The Employee will not directly or indirectly (as a
director, officer, employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own
any interest in, perform any services for, participate in or be
connected with (i) any business or organization which engages in
competition with the Company or any of its Affiliates in any
geographical area where any business is presently carried on by the
Company or any of its Affiliates, or (ii) any business or organization
which engages in competition with the Company or any of its Affiliates
in any geographical area where any business shall be hereafter, during
the period of the Employee's employment by the Company, carried on by
the Company or any of its Affiliates, if such business is then being
carried on by the Company or any of its Affiliates in such
geographical area; provided, however, that the provisions of this
Section 9(d) shall not be deemed to prohibit the Employee's ownership
of not more than 1% of the total shares of all classes of stock
outstanding of any publicly held company;
(e) The Employee will not directly or indirectly solicit
for employment, or advise or recommend to any other person that they
employ or solicit for employment, any employee of the Company or any
of its Affiliates; and
(f) The Employee will not directly or indirectly hire,
engage, send any work to, place orders with, or in
-11-
<PAGE> 12
any manner be associated with any supplier, contractor, subcontractor
or other person or firm which rendered manufacturing or other
services, or sold any products, to the Company or any of its
Affiliates if such action by him would have a material adverse effect
on the business, assets or financial condition of the Company or any
of its Affiliates.
For purposes of this Section 9, a person or entity (including,
without limitation, the Employee) shall be deemed to be a competitor of the
Company or any of its Affiliates, or a person or entity (including, without
limitation, the Employee) shall be deemed to be engaging in competition with
the Company or any of its Affiliates, if such person or entity in any way
conducts, operates, carries out or engages (i) in the business of delivering
medical oxygen, respiratory therapy services, or durable medical equipment to
customers in their homes or (ii) in any other business engaged in by the
Company or any of its Affiliates on or prior to the date upon which such
Employee ceases to be employed hereunder.
In connection with the foregoing provisions of this Section 9,
the Employee represents that his experience, capabilities and circumstances are
such that such provisions will not prevent him from earning a livelihood. The
Employee further agrees that the limitations set forth in this Section 9
(including, without limitation, any time or territorial limitations) are
reasonable and properly required for the adequate protection of the business of
the Company (and of its Affiliates). It is understood and agreed that the
covenants made by the Employee in this Section 9 (and in Section 6 hereof)
shall survive the expiration or termination of this Agreement.
For purposes of this Section 9, proprietary interest in a
business is ownership, whether through direct or indirect stock holdings or
otherwise, of one percent (1%) or more of such business.
The Employee acknowledges and agrees that a remedy at law for
any breach or threatened breach of the provisions of this Section 9 would be
inadequate and, therefore, agrees that the Company and any of its Affiliates
shall be entitled
-12-
<PAGE> 13
to injunctive relief in addition to any other available rights and remedies in
cases of any such breach or threatened breach; provided, however, that nothing
contained herein shall be construed as prohibiting the Company or any of its
Affiliates from pursuing any other rights and remedies available for any such
breach or threatened breach.
10. Binding Effect. Without limiting or diminishing the
effect of Section 8 hereof, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, legal
representatives and permitted assigns.
11. Notices. Any notice required or permitted to be
given under this Agreement shall be sufficient if in writing and either
delivered in person or sent by first class certified or registered mail,
postage prepaid, if to the Company, at the Company's principal place of
business, and if to the Employee, at his home address most recently filed with
the Company, or to such other address or addresses as either party shall have
designated in writing to the other party hereto.
12. Law Governing. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
13. Severability. If any provision of this Agreement
shall be determined to be invalid, illegal or unenforceable in whole or in
part, neither the validity of the remaining part of such provision nor the
validity of any other provision of this Agreement shall in any way be affected
thereby.
14. Waiver. Failure to insist upon strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.
-13-
<PAGE> 14
15. Entire Agreement; Modifications. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements, oral and written, between
the parties hereto with respect to the subject matter hereof. This Agreement
may be modified or amended only by an instrument in writing signed by both
parties hereto. It is acknowledged and agreed that this Agreement shall
supersede the Employment Agreement between the Employee and Lincare Inc., dated
November 1, 1993, which agreement shall be of no further force or effect from
the date of this Agreement.
16. Survival. The provisions of Sections 6, 7 and 9
hereof shall survive and continue after the expiration or termination of this
Agreement.
17. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have duly executed
and delivered this Agreement as of the day and year first above written.
LINCARE HOLDINGS INC.
By: /s/ John P. Brynes
---------------------------------
Title: CEO
/s/ James M. Emanuel
------------------------------------
JAMES M. EMANUEL
-14-
<PAGE> 1
NOTICE OF OPTION AWARD
UNDER LINCARE HOLDINGS INC.'S
NON-QUALIFIED STOCK OPTION PLAN
AWARD, made as of the 26th of January, 1996 by LINCARE HOLDINGS INC., a
Delaware corporation, having its principal office at 19337 U.S. 19 North,
Clearwater, Florida 34624 (hereinafter referred to as "the Corporation"), to
John P. Byrnes (hereinafter referred to as "the Employee").
The Corporation hereby grants to the Employee an option to purchase
shares of the Common Stock of the Corporation upon the following terms and
conditions:
1. The Employee is hereby granted an option to purchase 40,000 shares
of the Common Stock of the Corporation.
2. The option price shall be $25.25 per share of the Common Stock.
3. (a) The option shall be exercisable as follows: (i) 50% of the
option shares shall be exercisable commencing on January 31, 1998, and (ii) 50%
of the option shares shall be exercisable commencing on January 31, 1999. The
option shall expire on January 31, 2004, and in no event may the option be
exercised after such expiration date.
(b) The option shall be exercisable by the Employee only while the
Employee is an active employee of the Corporation; provided, however, that if
the option is otherwise then-exercisable pursuant to the terms hereof, then: (i)
the option shall be exercisable by the Employee within one (1) year after the
Employee's employment with the Corporation ceases due to a disability
sustained while the Employee was an active employee of the Corporation; and
(ii) subject to the provisions of Section 4 hereof, the option shall be
exercisable by the executor or administrator of the Employee's estate within
one (1) year after the Employee's death, if such death occurred while the
Employee was an active employee of the Corporation.
4. The option is not transferable except that in the event of the
Employee's death while such option is then-exercisable, the option may be
exercised by the executor or administrator of the Employee's estate in
accordance with the provisions of Section 3(b) hereof prior to the expiration
date of the option.
5. The option may only be exercised at the principal office of the
Corporation (or at such other location as determined by the Corporation) with
respect to a part or all of the shares covered by such option by sending a
completed Stock Option Exercise Form attached hereto as Exhibit A to the
Secretary of the Corporation. The option price for the shares
35
<PAGE> 2
for which an option is exercised shall be paid in full, in cash, on the date of
exercise, or, at the Corporation's sole discretion, within ten (10) business
days thereafter.
6. Upon the exercise of the option with respect to a part or all of
the shares in the manner and within the time herein provided, the Corporation
will issue and deliver to the Employee (or to the Employee's executor or
administrator in the event of the death of the Employee) the number of shares
of Common Stock with respect to which the option was exercised.
7. The option granted hereby shall constitute and be treated at all
times by you and the Corporation as a "non-qualified stock option" for Federal
income tax purposes and shall not constitute and shall not be treated as an
"incentive stock option" as defined under Section 422A(b) of the Internal
Revenue Code of 1986, as amended.
8. This option is awarded pursuant to the Plan, and is subject to all
of the terms and conditions of the Plan, a copy of which the Employee has
received.
9. The Corporation has discretion to make appropriate adjustments to
this option in order to provide for effects of changes in the capital structure
of the Corporation by reason of any stock split, stock dividend,
recapitalization, merger, consolidation, combination or exchange of shares or
other similar corporate change or in the event of any special distribution to
stockholders.
10. This Notice of Award shall be interpreted and construed in
accordance with the laws of the State of Delaware.
11. The satisfaction of any and all conditions set forth in this
Agreement regarding your right to exercise the option (and purchase any option
shares) shall be determined by the Committee.
12. Neither the Plan, this Agreement, or the granting of the options
hereunder shall confer upon you any right to continue in the employ of the
Corporation, or limit in any respect the right of the Corporation to terminate
your employment or other relationship with the Corporation, as the case may
be, at any time.
13. Definitions
(a) "Committee" means the Non-Qualified Stock Option Plan Committee
of the Board of Directors or any other committee of the Board of Directors
which is appointed to administer the Lincare Holdings Inc. Non-Qualified Stock
Option Plan.
-2-
<PAGE> 3
(b) "Common Stock" mean the common stock. $.01 par value, of
Lincare Holdings Inc.
(c) "Corporation" means Lincare Holdings Inc. and its
subsidiaries. An individual who is employed by a subsidiary of the Corporation
shall be deemed to have ceased employment with the Corporation at such time as
the Corporation owns, either directly or indirectly, less than 50% of the total
combined voting power of all classes of stock entitled to vote.
(d) "Plan" means the Lincare Holdings Inc. Non-Qualified Stock
Option Plan
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed by an authorized officer as of the day and year first
hereinabove written.
LINCARE HOLDINGS INC.
By: /s/ Howard R. Deutsch
-------------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST WRITTEN ABOVE:
/s/ John P. Byrnes
- ---------------------------------
John P. Byrnes
-3-
<PAGE> 1
NOTICE OF OPTION AWARD
UNDER LINCARE HOLDINGS INC.'S
1996 STOCK PLAN
AWARD, made as of the 15th of July 1996 by LINCARE HOLDINGS INC., a
Delaware corporation, having its principal office at 19337 U.S. 19 North,
Clearwater, Florida 34624 (hereinafter referred to as "the Corporation"), to
John P. Byrnes (hereinafter referred to as "the Employee").
The Corporation hereby grants to the Employee an option to purchase
shares of the Common Stock of the Corporation upon the following terms and
conditions:
1. The Employee is hereby granted an option to purchase 150,000 shares
of the Common Stock of the Corporation.
2. The option price shall be $35.25 per share of the Common Stock.
3. (a) The option shall be exercisable as follows: (i) 50% of the
option shares shall be exercisable commencing on December 1, 1999, and (ii) 50%
of the option shares shall be exercisable commencing on December 1, 2000. The
option shall expire on December 31, 2005, and in no event may the option be
exercised after such expiration date.
(b) The option shall be exercisable by the Employee only while the
Employee is an active employee of the Corporation; provided, however, that if
the option is otherwise then-exercisable pursuant to the terms hereof, then: (i)
the option shall be exercisable by the Employee within one (1) year after the
Employee's employment with the Corporation ceases due to a disability
sustained while the Employee was an active employee of the Corporation; and
(ii) subject to the provisions of Section 4 hereof, the option shall be
exercisable by the executor or administrator of the Employee's estate within
one (1) year after the Employee's death, if such death occurred while the
Employee was an active employee of the Corporation.
4. The option is not transferable except that in the event of the
Employee's death while such option is then-exercisable, the option may be
exercised by the executor or administrator of the Employee's estate in
accordance with the provisions of Section 3(b) hereof prior to the expiration
date of the option.
36
<PAGE> 2
5. The option may only be exercised at the principal office of the
Corporation (or at such other location as determined by the Corporation) with
respect to a part or all of the shares covered by such option by sending a
completed Stock Option Exercise Form attached hereto as Exhibit A to the
Secretary of the Corporation. The option price for the shares for which an
option is exercised shall be paid in full, in cash, on the date of exercise,
or, at the Corporation's sole discretion, within ten (10) business days
thereafter.
6. Upon the exercise of the option with respect to a part or all of
the shares in the manner and within the time herein provided, the Corporation
will issue and deliver to the Employee (or to the Employee's executor or
administrator in the event of the death of the Employee) the number of shares
of Common Stock with respect to which the option was exercised.
7. The option granted hereby shall constitute and be treated at all
times by you and the Corporation as a "non-qualified stock option" for Federal
income tax purposes and shall not constitute and shall not be treated as an
"incentive stock option" as defined under Section 422A(b) of the Internal
Revenue Code of 1986, as amended.
8. This option is awarded pursuant to the Plan, and is subject to all
of the terms and conditions of the Plan, a copy of which the Employee has
received.
9. The Corporation has discretion to make appropriate adjustments to
this option in order to provide for effects of changes in the capital structure
of the Corporation by reason of any stock split, stock dividend,
recapitalization, merger, consolidation, combination or exchange of shares or
other similar corporate change or in the event of any special distribution to
stockholders.
10. This Notice of Award shall be interpreted and construed in
accordance with the laws of the State of Delaware.
11. The satisfaction of any and all conditions set forth in this
Agreement regarding your right to exercise the option (and purchase any option
shares) shall be determined by the Committee.
12. Neither the Plan, this Agreement, or the granting of the options
hereunder shall confer upon you any right to continue in the employ of the
Corporation, or limit in any respect the right of the Corporation to terminate
your employment or other relationship with the Corporation, as the case may
be, at any time.
-2-
<PAGE> 3
13. Definitions
(a) "Committee" means the 1996 Stock Plan Committee
of the Board of Directors or any other committee of the Board of Directors
which is appointed to administer the Lincare Holdings Inc. 1996 Stock
Plan.
(b) "Common Stock" mean the common stock. $.01 par value, of
Lincare Holdings Inc.
(c) "Corporation" means Lincare Holdings Inc. and its
subsidiaries. An individual who is employed by a subsidiary of the Corporation
shall be deemed to have ceased employment with the Corporation at such time as
the Corporation owns, either directly or indirectly, less than 50% of the total
combined voting power of all classes of stock entitled to vote.
(d) "Plan" means the Lincare Holdings Inc. 1996 Stock Plan.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed by an authorized officer as of the day and year first
hereinabove written.
LINCARE HOLDINGS INC.
By: /s/ James T. Kelly
-------------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST WRITTEN ABOVE:
/s/ John P. Byrnes
- ---------------------------------
John P. Byrnes
-3-
<PAGE> 1
EXHIBIT 23.5
The Board of Directors
Lincare Holdings Inc.:
We consent to incorporation by reference in the registration statement (No.
33-55202) on Form S-8, the registration statement (No. 33-59566) on Form S-8
and the registration statement (No. 33906-02) on Form S-8 of Lincare Holdings
Inc. of our report dated January 21, 1997, relating to the consolidated balance
sheets of Lincare Holdings Inc. and subsidiaries as of December 31, 1996 and
1995, and the related consolidated statements of operations, stockholders'
equity, and cash flows and related schedule for each of the years in the
three-year period ended December 31, 1996, which report appears in the December
31, 1996 annual report on Form 10-K of Lincare Holdings Inc.
KPMG PEAT MARWICK LLP
St. Petersburg, Florida
March 24, 1997
37
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<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 1,541
<SECURITIES> 0
<RECEIVABLES> 51,090
<ALLOWANCES> 5,917
<INVENTORY> 1,689
<CURRENT-ASSETS> 54,973
<PP&E> 150,598
<DEPRECIATION> 57,068
<TOTAL-ASSETS> 347,408
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0
0
<COMMON> 282
<OTHER-SE> 298,966
<TOTAL-LIABILITY-AND-EQUITY> 347,408
<SALES> 348,870
<TOTAL-REVENUES> 348,870
<CGS> 53,711
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<OTHER-EXPENSES> 183,807
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<INCOME-PRETAX> 106,996
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<EPS-PRIMARY> 2.31
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