EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of __________________, 1997,
by and between HORIZON Pharmacies, Inc., a Texas corporation (the "Company"),
and _________________________ ("Employee").
W I T N E S S E T H:
WHEREAS, Employee has been serving as an officer of the Company; and
WHEREAS, the Company desires to obtain the services of Employee on a
full time basis in order to preserve the continuation of the businesses of
the Company and Employee is desirous of rendering such services to same; and
WHEREAS, Employee has agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, and other good and valuable consideration, the adequacy of
which is hereby acknowledged, the parties hereby agree as follows:
1. EMPLOYMENT; DUTIES AND ACCEPTANCE.
1.1. EMPLOYMENT BY THE COMPANY. During the Term of this Agreement,
as hereinafter defined, the Company hereby agrees to employ Employee as
_____________________ - of the Company or such other executive position as
the Company's Board of Directors may designate. During said period, Employee
shall render services to the Company on a full-time basis (serving approximately
the same total number of hours per week as Employee has previously worked for
the Company).
1.2. DUTIES. As the __________________ of the Company, Employee
shall be involved in all executive activities of the Company, and perform the
function of his office and other duties as directed by the Board of Directors.
1.3. ACCEPTANCE OF EMPLOYMENT BY EMPLOYEE. Employee hereby accepts
such employment and shall render the services described above. Employee agrees
to devote his full attention, skill and best efforts to the performance of said
duties for the Company.
1.4. TERMINATION OF EXISTING CONTRACTS. Employee agrees that all
agreements and contracts, whether written or oral, relating to the current
employment of Employee by the Company will be terminated as of the commencement
of the Term of this Agreement, as defined below.
2. TERM OF EMPLOYMENT. The term of Employee's employment under this
Agreement (the "Term") shall commence as of June 1, 1997 (the "Commencement
Date"), and shall continue through and expire on the third anniversary of the
Commencement Date, unless earlier terminated as herein provided. The date at
which Employee's employment is terminated under this Agreement shall be
referred to herein as the "Termination Date." The agreement shall be renewed
for consecutive three year period(s) unless either party no later than thirty
(30) days prior to the termination date elects in writing to not renew.
3. PARTICIPATION IN EMPLOYEE BENEFIT PLANS. During the Term, Employee
shall be permitted to participate in any group life, hospitalization or
disability insurance plan, health program, pension plan, similar benefit plan
or other so-called "fringe benefits" of the Company, which may be
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available to other employees of the Company generally on the same terms as
such other employees.
4. COMPENSATION. In consideration of the observance by Employee of the
terms of this Agreement and the performance of his duties as set forth
herein, the Company shall pay to Employee the sum of ______________ Thousand
Dollars ($___________) per year during the Term, which payments shall be
payable in accordance with the payroll policies of the Company as such are
from time to time in effect. At the end of each fiscal year of the Company,
the Board of Directors of the Company shall review the Company's performance
for such year and consider other compensation for Employee, such as a bonus
payment, stock options, stock grants or an increase in the annual salary
payable during the Term, which, in the sole judgment of the Board, may be
appropriate compensatory recognition for Employee's performance of his duties
hereunder.
5. TERMINATION. The Company has the right, at any time during the
Term, subject to all of the provisions hereof, exercisable by serving notice,
effective no earlier than ninety (90) days from the date of notification, to
terminate the Employee's employment under this Agreement and to discharge the
Employee without cause and with no advance notice with cause. If such right is
exercised, the Company's obligation to the Employee shall be limited to the
payment of unpaid Annual Salary accrued up to the effective date specified
in the Company's notice of termination. If, however such termination is
without cause the Company shall be liable to the employee for a lump sum
severance payment of one (1) year anticipated compensation in accordance with
the employee's current annualized salary, benefit package, and anticipated
bonus. Notwithstanding termination of this Agreement, whether by expiration of
the Term or otherwise, the obligations of Section 7 hereof shall survive such
termination.
6. SOLE EMPLOYMENT; NON COMPETITION.
6.1. SOLE EMPLOYMENT. During the Term of this Agreement, Employee
shall not, except as set forth herein, be engaged in any other business
activity whether or not such business activity is pursued for gain, profit,
or other pecuniary advantage. Employee may, however, invest his assets in
such form or manner as will not require his services in the operation of the
affairs of the companies in which such investments are made.
6.2. NON-COMPETITION. During the period expiring two (2) years from
the Commencement Date (the "Noncompetition Period"), Employee will not (a)
within any area in the continental United States where the Employee provided
any services to the Company, directly or indirectly, acquire, own, manage,
operate, join, control, by employed with, or participate in the acquisition,
ownership, management, operation, or control of, or be connected in any
manner with, any business engaged in the retail pharmacy industry without the
prior written consent of the Company, (b) contact or attempt to contact,
directly or indirectly, any of the Company's employees as of the Termination
Date, in connection with the formation or operation of any other entity whose
purpose is to acquire, manage or operate retail pharmacies for the profit of
anyone other than the Company or provide services of a type similar to those
provided by the Company as of the Termination Date, nor will Employee
dissuade or attempt to dissuade any customer of the Company as of the
Termination Date from purchasing products from the Company or using services
provided by the Company at the Termination Date.
7. CONFIDENTIALITY. It is contemplated that Employee will learn of the
Company's confidential information or confidential information entrusted to
the Company by other persons corporations or firms (collectively, Third
Parties). The Company's confidential information includes matters not
generally known outside the Company, such as developments relating to
existing and future products and services marketed or used by the Company and
also data relating to the general business operations of the Company (e.g.,
concerning sales, costs, profits, organizations, customer lists, pricing
methods, etc.). During the Term and continuing thereafter, Employee agrees
not to disclose any confidential information of the Company or of such other
persons, corporations or firms to others or to
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make use of its, except on the Company's behalf, whether or not such
information is produced by Employee's own efforts. Also, Employee may learn
of developments, ways of business, etc., which in themselves are generally
known but whose use by the Company is not generally known, and during the
Term and continuing thereafter, Employee agrees not to disclose to others
such use, whether or not such use is due to Employee's own efforts. All
records of the Company, including the names and addresses of its customers,
are and shall remain the property of the Company at all times during the Term
and after termination of Employee's employment for any reason with the
Company. None of such records, nor any part of them, is to be removed by
Employee from the premises of the Company either in original form or in
computerized, duplicated, or copied form, and the names, addresses, and other
facts in such records are not to be transmitted verbally, in writing, or in
computerized form by Employee except in the ordinary course of conducting
business for the Company.
8. OTHER PROVISIONS.
8.1. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally or
sent by certified, registered or express mail, postage prepaid. Any such
notice shall be deemed given when so delivered personally or, if mailed, five
days after the date of deposit in the United States mail, as follows:
(i) IF TO THE COMPANY, TO:
HORIZON Pharmacies, Inc.
000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
(ii) IF TO EMPLOYEE, TO:
Any party may change its address for notice hereunder by notice to the
other parties hereto.
8.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
all prior agreements, written or oral, with respect thereto.
8.3. WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part
of any party of any right, power or privilege hereunder, nor any single or
partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege hereunder.
8.4. GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Texas applicable to agreements
made and to be performed entirely within such state.
8.5. ASSIGNMENT. Employee may not delegate the performance of any
of his duties hereunder. Neither party hereto may assign any rights hereunder
without the written consent of the other party hereto.
8.6. COUNTERPARTS. This Agreement may be executed in two or more
counterparts,
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each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
8.7. HEADINGS. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY: HORIZON Pharmacies, Inc.
By:
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EMPLOYEE:
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