EMPLOYMENT AGREEMENT
Exhibit
10.1
This
EMPLOYMENT AGREEMENT ("Agreement"),
effective as of the 18th day of May, 2006 (the "Date
of Employment"),
is
entered into by and between Park InfusionCare, L.P., a Texas limited
partnership, with its principal place of business in Dallas, Dallas County,
Texas ("Employer"),
and
Xxxxx X. Xxxxxxxx, a resident of Jefferson County, Texas ("Employee").
W
I T N E
S S E T H:
WHEREAS,
Employer is a limited partnership which owns and operates an infusion pharmacy
business whose principal office is located at 00000 Xxxxxx Xxxxxxx, in the
City
of Dallas, Dallas County, Texas (the "Business");
WHEREAS,
Employer now desires to employ Employee as the Vice President in charge of
all
infusion pharmacy operations of Employer; and
WHEREAS,
Employer desires to employ Employee, and Employee desires to be employed by
Employer, upon the terms and conditions hereinafter set forth.
NOW,
THEREFORE,
for and
in consideration of the premises and the mutual promises, covenants, and
agreements herein contained and other good and valuable consideration, the
receipt and adequacy of which are hereby forever acknowledged and confessed,
the
parties hereto agree as follows:
ARTICLE
I
EMPLOYMENT
Employer
hereby agrees to employ Employee, and Employee hereby agrees to serve Employer,
as herein set forth, for the "Term
of Employment"
(as
that term is hereinafter defined).
ARTICLE
II
DUTIES
OF EMPLOYEE
During
the Term of Employment, Employee shall, serve as Vice President of infusion
pharmacy operations in charge of supervising all operations of the infusion
pharmacy business of Employer. Employee will also, subject to the direction
and
instructions of the Board of Directors of Employer and the chief executive
officer of Employer, satisfy the requirements and perform the functions and
duties set forth in this Agreement. Such functions and duties shall include,
without limitation:
2.1
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devoting
Employee's full professional time, attention, and energy to the business
of Employer as Employer shall reasonably determine will satisfactorily
accomplish the purposes of this Agreement;
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2.2
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providing
reasonable professional direction and supervision of the infusion
pharmacy
personnel of Employer, including providing Employer with advice and
assistance in the hiring, evaluation, promotion, and firing of such
personnel;
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2.3
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assisting
Employer in the development of policies and procedures for the infusion
pharmacy business and keeping such business in compliance with all
such
policies and procedures;
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2.4
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doing
all things reasonably necessary or desirable to maintain and improve
his
skills as a manager;
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2.5
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using
Employee's reasonable efforts to promote and support the interests
(business and otherwise) of Employer, including but not limited to
participating as requested by Employer in marketing activities and
efforts;
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2.6
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assisting
the Employer in marketing and developing marketing plans and procedures
to
expand sales of the products and services of the infusion pharmacy
business to both existing and new
customers;
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2.7
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keeping
and maintaining (or causing to be kept and maintained) appropriate
records
relating to the Business of the Employer and attending to correspondence,
reports, and other record keeping requirements associated with Employee's
duties with Employer;
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2.8
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taking
reasonable efforts to see that the Employer complies with all state,
federal, and local laws, rules, and regulations applicable to the
Business
of the Employer;
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2.9
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complying
in all respects with the rules, policies, and procedures of Employer;
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2.10
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abiding
by any reasonable schedule of hours formulated by Employer;
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2.11
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at
the request or with the consent of Employer, attending conventions
and
seminars, participating in professional societies the cost of which
will
be paid by Employer, and doing all things reasonably desirable to
maintain
and improve his professional skills;
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2.12
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cooperating
with other employees and officers of Employer in all reasonable manners;
and
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2.13
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performing
in a diligent and timely manner such duties as set forth herein and
such
other duties as Employer and Employee may, from time to time, agree.
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Employee
agrees to observe and comply with the reasonable rules and regulations of
Employer and the Business as adopted from time to time. Employee shall not
engage in any business or other activity that hinders in any way Employee's
ability to serve as the Vice President of Infusion of the infusion pharmacy
business of Employer. Employee shall perform his duties hereunder from offices
located in the City of Beaumont, Jefferson County, Texas, but will travel on
a
regular basis to Houston, Dallas, San Antonio, and any other cities in which
branches of the Business are located.
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ARTICLE
III
COMPENSATION
AND PROFESSIONAL FEES
3.1 Compensation
During Term of Employment.
As
compensation for Employee's services hereunder during the Term of Employment,
and in consideration of Employee's agreement contained herein, Employer shall
pay Employee an annual base salary of $165,000.00 paid in accordance with
Employer's normal pay schedules on a semi-monthly basis, with appropriate taxes
and withholdings deducted therefrom as required of or by Employer. In addition,
Employee shall receive a bonus ("EBITDA
Bonus")
each
calendar year based on the earnings before federal income taxes, any state
taxes
based on income or receipts, depreciation and amortization of the Employer
("EBITDA").
If
EBITDA in any calendar year during the term of this Agreement is five percent
(5.0%) or more but less than ten percent (10%) of the gross revenues of the
Employer for such calendar year, Employer shall pay Employee a bonus equal
to
ten percent (10.0%) of Employee's base salary for such calendar year and if
EBITDA for any calendar year during the term of this Agreement is equal to
or
more than ten percent (10%) of gross revenues of the Employer for such calendar
year, Employer shall pay Employee a bonus equal to twenty percent (20%) of
Employee's base salary for such calendar year. Such cash bonuses, if any, will
be paid prior to March 31 of the year following each calendar year during
the term of this Agreement. Notwithstanding the above, Employee shall only
be
entitled to such cash bonus if he is employed at the end of such calendar year
and through the earlier of (i) the date the bonus is paid, or (ii) March 31
of the year following the calendar year for which such bonus is calculated.
3.2 Equity
Bonus and Severance.
The
Employer and Employee agree that the current net value of the business of
Employer is $3,600,000.00. Upon a Change of Control (as defined below) which
occurs either (i) while Employee is an employee or (ii) within one
hundred eighty (180) days after Employee's employment is terminated pursuant
to
Section 4.2.5,
then
Employer shall pay to Employee twenty percent (20%) of the amount by which
the
total consideration received by Employer for sale or exchange of its assets
or
the equity owners of Employer receive for the sale or exchange of their equity
ownership interest exceeds $3,600,000.00 (the "Equity
Bonus").
The
Equity Bonus shall be paid by Employer to Employee within thirty (30) days
after
such Change of Control is effected. As used in this Article III
the
following definitions shall apply:
(a) "Change
of Control"
means,
the occurrence at any time after the date hereof of (i) any Person or Group
of
Persons becoming for the first time the owner, directly or indirectly, of more
than fifty percent (50%) of the total combined voting power of all classes
of
equity of the Employer, other than as a result of a transfer or series of
transfers between Parent and/or one or more Subsidiaries and shall exclude
any
transfers of equity or changes in control of Parent; (ii) a merger or
consolidation of the Employer with or into another Person or the merger of
another Person into the Employer as a consequence of which Parent and/or one
or
more Subsidiaries do not own or control either directly or indirectly a majority
of the equity of the Employer (or, if applicable, the surviving Person of such
merger or consolidation) after the consummation of such merger or consolidation;
or (iii) the sale of all or substantially all of the assets of the Employer
to
any Person or Group of Persons (other than to the Parent and/or one or more
Subsidiaries).
(b) "Group"
means a
"group" as such term is used in Section
13(d)(3)
of the
Exchange Act.
(c) "Parent"
means
Ascendant Solutions, Inc., a Delaware corporation.
(d) "Person"
means
any individual, corporation, partnership, limited liability company, joint
venture, estate, trust, unincorporated association, or any other
entity.
(e) "Subsidiary"
means
any Person in any unbroken chain of Persons beginning with the Parent if, each
of the Persons (other than the last Person in the unbroken chain) owns stock
(or
other equity interests) possessing 50% or more of the total combined voting
power of all classes of stock (or other equity interests) in one of the other
Persons in such chain.
In
addition, following the Change of Control, if the new owner (if any) of Employer
or the transferred assets of Employer does not hire Employee as an employee
in a
comparable position with the same or similar responsibilities and at a base
salary equal to or in excess of the base salary of Employee at the time of
such
Change of Control, then Employer shall pay to Employee as severance pay
hereunder a sum equal to one (1) year's base salary then in effect payable
on
the funding of such Change of Control.
3.3 Benefits.
Employer shall provide Employee with the following benefits during the Term
of
Employment:
(a) Employer
will reimburse Employee for the cost of a cellular telephone for use by Employee
for Employer's business purposes and will reimburse Employee for all bills
for
such telephone.
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(b) Employer
will provide health insurance, medical and hospital treatment benefits for
Employee at Employer's expense with such medical and hospital treatment program
(whether through insurance, a preferred provider organization, health
maintenance organization, or other type of benefits) as the Employer may from
time to time have in effect for its other employees. Employer may cover
Employee's spouse and other dependents at Employee's own expense through payroll
deductions on such basis as such health benefits then in effect allow.
(c) Employee
shall be entitled to participate in such pension or retirement plans, if any,
as
the Employer may from time to time offer to its other employees on the same
basis as the other employees of Employer.
(d) Employee
shall be paid a car allowance of $500.00 per month during the term of this
Agreement.
3.4 Section
409A.
To the
extent (i) any payments to which Employee becomes entitled under this Agreement,
or any agreement or plan referenced herein, in connection with Employee's
termination of employment with Employer constitute deferred compensation subject
to Section 409A of the Code, and (ii) Employee is deemed at the time of such
termination of employment to be a "specified employee" under Section 409A of
the
Code, then such payment or payments shall not be made or commence until the
earliest of (x) the expiration of the six (6) month period measured from the
date of Employee's "separation from service" (as such term is defined in
Proposed Treasury Regulations under Section 409A of the Code and any successor
thereto) with Employer; (y) the date Employee becomes "disabled" (as defined
in
Section 409A of the Code); and (z) the date of Employee's death following such
separation from service. During any period that payment or payments to Employee
are deferred pursuant to the foregoing, Employee shall be entitled to interest
on the deferred payment or payments at a per annum rate equal to the highest
rate of interest applicable to six (6) month money market accounts offered
by
the following institutions: Citibank N.A., Xxxxx Fargo Bank, N.A. or Bank of
America, on the date of such "separation from service." Upon the expiration
of
the applicable deferral period, any payments which would have otherwise been
made during that period (whether in a single sum or in installments) in the
absence of this section (together with accrued interest thereon) shall be paid
to Employee or Employee's beneficiary in one lump sum. Notwithstanding anything
to the contrary, any delay in making a payment pursuant to this section shall
not otherwise affect the obligation of Employer to ultimately make such payment
to Employee.
ARTICLE
IV
TERM
AND TERMINATION
4.1 Term
of Employment.
As used
herein, "Term
of Employment"
shall
mean the period commencing and effective date of this Agreement, and ending
twelve (12) full calendar months thereafter unless earlier terminated as
provided herein. This Agreement shall be automatically renewed for successive
one year periods after the initial year term of this Agreement, unless
terminated as provided herein, or unless prior to the expiration of the initial
term of this Agreement or any renewed term, Employee or the Employer provides
at
least thirty (30) days prior written notice to the other of such party’s desire
not to continue the employment relationship (the term, as so extended or earlier
terminated, is referred to herein as the “Term”).
4.2 Termination.This
Agreement shall terminate upon the first to occur of the following each of
which
shall constitute good cause for termination of this Agreement:
4.2.1 Death
or Military Service of Employee.
Upon
the date of death of Employee or the date Employee voluntarily enlists into
active military service;
4.2.2 Disability
of Employee.
Unless
Employer agrees otherwise in writing, upon the inability of Employee to perform
fully Employee's duties hereunder, whether by reason of injury or illness
(physical or mental), incapacitating Employee either for a continuous period
exceeding one hundred twenty (120) calendar days, or for a noncontinuous period
exceeding one hundred eighty (180) calendar days during any twelve (12) calendar
month period, excluding any leaves of absence approved in writing by Employer.
In connection herewith, Employer shall have the right to have Employee examined
at such reasonable time or times by such physicians as Employer and Employee
agree upon (if Employer and Employee fail to agree upon a physician to conduct
such examination, Employer and Employee shall each designate a physician and
the
designated physicians shall appoint a third physician to conduct the
examination), and Employee will reasonably cooperate with such physician to
be
available for and submit to such examination;
4.2.3 Immediate
Termination.
On the
revocation, termination, or suspension by any governmental entity of any
professional license held by Employee and required to perform Employee's
services hereunder for any cause, on the commission of any crime by Employee
involving moral turpitude, on Employee's embezzling any funds or property of
Employer or committing any other dishonest act towards Employer, on the Employer
determining that the Employee was under the influence of alcohol or illegal
drugs during working hours, or Employee refusing to obey a supervisor's order
or
request, or on Employee's abusive or aggressive behavior towards other employees
or customers of Employer.
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4.2.4 Material
Breach and Other Good Cause for Termination.
Either
party hereto may upon the other party's material breach of this Agreement which
remains uncorrected for thirty (30) days following written notice of said breach
to the breaching party, terminate this Agreement on written notice to the other.
4.2.5 Termination
by Employer Without Cause.
Employer may terminate Employee's employment under this Agreement without any
cause whatsoever by giving Employee thirty (30) days' written notice or, at
the
election of Employer, immediate notice and the payment in lieu of notice of
an
amount equal to his base salary for the previous thirty (30) days, at the time
set forth therein plus, if such termination is made pursuant to this
Section 4.2.5,
an
amount equal to the greater of (i) the base salary that would be payable to
Employee from and after such 30-day period through the remainder of the Term
of
the Agreement (which shall not exceed eleven (11) months); or (ii) the base
salary that would be payable to Employee from and after such 30-day period
for
another ninety (90) days, in equal installments as provided in Section 3.1.
4.3 Effect
of Termination.
In the
event of termination of this Agreement, Employer shall no longer be obligated
to
make any further payments hereunder or otherwise. Subject to the provisions
hereof, in the event of such termination, any monies earned hereunder by, but
not yet paid to, Employee shall be paid by Employer to Employee or Employee's
surviving spouse, if any, or if none, to Employee's estate, and Employee or
Employee's surviving spouse or estate shall pay any amount or amounts then
owed
by Employee to Employer, and Employee shall immediately and peacefully depart
from any premises controlled by Employer, all without prejudice to any other
rights or remedies of Employer available at law or equity.
ARTICLE
V
VACATION
AND LEAVE; BUSINESS EXPENSES
5.1 Vacation.
Employee will be entitled to vacation, holidays, and continuing education leave
and expense reimbursement as follows:
(a) The
Employee shall be entitled to the standard holidays recognized by Employer
that
other employees receive and may work up to two (2) of such holidays and take
off
two (2) days of compensating time.
(b) The
Employee shall be entitled to three (3) weeks (including 15 working days)
annually for vacation as well as two (2) days of personal leave each
year.
(c) The
Employee shall be entitled to attend continuing education seminars, or
professional conventions, during the year at the expense of Employer as approved
in advance by Employer and all expenses incurred in connection with such
attendance shall be the responsibility of Employer, but Employee shall allow
leave for attending such continuing education which shall not be counted against
vacation time or personal or sick leave.
(d) The
Employee shall be entitled to compensated and uncompensated sick time in
accordance with Employee's policy from time to time in effect.
(e) Vacation
time and personal leave and sick leave shall not be carried over or accumulated
from year to year but must be taken in each calendar year granted by Employer
or
shall be lost and waived by Employee.
5.2 Employee
Business Expenses.
Employee is encouraged and expected, and from time to time as may be reasonably
requested by Employer, to promote the business of Employer. In conjunction
with
such requests, Employer anticipates that Employee will incur expenses for
travel, entertainment, professional advancement, and community service. Employee
will be reimbursed for expenses he incurs on behalf of Employer, as long as
such
expenses are reasonable and necessary.
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ARTICLE
VI
RECORDS
AND EMPLOYEES
6.1 Records
of Employer.
Employee acknowledges that any papers, records, customer lists, files, or other
documents or copies thereof or other confidential information of any kind
pertaining to Employer's business, sales, financial condition, products, or
other activities, including any copies, worksheets, or extracts from any of
the
above, belong to and will remain the property of Employer. Employee further
agrees that should Employee leave the active service of Employer, Employee
will
neither take nor retain any property of Employer without prior written
authorization from Employer. Employee covenants and agrees that for a period
beginning on the date hereof and ending one (1) year after the date of
termination of Employee's employment with Employer (whether voluntary or
involuntary), Employee shall not continue or commence to: either directly or
indirectly for his own behalf or on behalf of any Person (as defined in
Article III)
solicit
for employment or solicit to provide services in any other capacity or employ
or
otherwise contract for services for any person employed by or who provides
services in any other capacity to Employer at any time during the twelve (12)
month period immediately preceding the termination of Employee's
employment.
ARTICLE
VII
ADDITIONAL
PROVISIONS
7.1 Additional
Assurances.
The
provisions of this Agreement shall be self-operative and shall not require
further agreement by the parties, except as may be specifically provided to
the
contrary; provided, however, at the request of Employer, Employee shall execute
such additional instruments and take such additional acts as Employer may deem
necessary to effectuate this Agreement.
7.2 Legal
Fees and Costs.
In the
event that either party hereto shall incur attorneys' fees and expenses to
enforce the terms and provisions of this Agreement, the party who shall prevail
in the enforcement of the terms and provisions hereof shall be entitled to
recover its attorneys' fees and expenses from the other party
hereto.
7.3 Choice
of Law and Venue.
This
Agreement shall be governed by the laws of the State of Texas and shall be
performable in Dallas County, Texas, and venue for any litigation regarding
this
Agreement shall be in the state or federal courts of Dallas County,
Texas.
7.4 Benefit/Assignment.
Subject
to provisions herein to the contrary, this Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective legal
representatives, successors, and assigns; provided, however, that Employee
may
not assign this Agreement or any or all of Employee's rights or obligations
hereunder without the prior written consent of the Employer.
7.5 Waiver
of Breach.
The
waiver by Employer of a breach or violation of any provision of this Agreement
shall not operate as, or be construed to be, a waiver by Employer of any
subsequent breach of the same or other provision hereof.
7.6 Notice.
Any
notice, demand, or communication required, permitted, or desired to be given
hereunder shall be deemed effectively given when personally delivered or mailed
by prepaid certified mail, return receipt requested, addressed as follows:
Employer: Park
Infusioncare, LP
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxx X. Xxxx
Employee: Xxxxx
X.
Xxxxxxxx
0000
Xxxxxxxx
Xxxxxxxx,
XX 00000
or
to
such other address and to the attention of such other person or officer as
either party may designate by like written notice.
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7.7 Severability.
This
Agreement is intended to be performed in accordance with, and only to the extent
permitted by, all applicable laws, ordinances, rules, and regulations. In the
event any provision of this Agreement is held to be invalid, illegal, or
unenforceable for any reason and in any respect, and the basis of the bargain
of
this Agreement is not thereby destroyed, such invalidity, illegality, or
unenforceability shall not affect the remainder of this Agreement, which shall
be and remain in full force and effect, enforceable in accordance with its
terms.
7.8 Gender
and Number.
Whenever the context of this Agreement requires, the gender of all words herein
shall include the masculine, feminine, and neuter, and the number of all words
herein shall include the singular and plural.
7.9 Divisions
and Headings.
The
divisions of this Agreement into articles and sections and the use of captions
and headings in connection therewith are solely for convenience and shall have
no legal effect in construing the provisions of this Agreement.
7.10 Entire
Agreement/Amendment.
This
Agreement supersedes all previous contracts, and constitutes the entire
agreement of whatsoever kind or nature existing between or among the parties
respecting the subject matter. No party shall be entitled to benefits other
than
those specified herein. As between or among the parties, no oral statements
or
prior written material not specifically incorporated herein shall be of any
force and effect. The parties specifically acknowledge that, in entering into
and executing this Agreement, each is relying solely upon the representations
and agreements contained in this Agreement and no others. All prior
representations or agreements, whether written or oral, not expressly
incorporated herein, are superseded and no changes in or additions to this
Agreement shall be recognized unless and until made in writing and signed by
all
parties hereto.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed in multiple original
counterparts, all as of the day and year first above written.
EMPLOYER:
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PARK
INFUSIONCARE, LP, a Texas
Limited
partnership
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By: Xxxxxxxxx'x
Operating GP, LLC
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/s/
Xxxxx X. Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Chairman
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EMPLOYEE:
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/s/
Xxxxx X. Xxxxxxxx
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XXXXX
X. XXXXXXXX
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