AMENDMENT NO. 3
TO THE
EMPLOYMENT AGREEMENT
BY AND BETWEEN
NEIGHBORCARE, INC. (THE "COMPANY")
AND
XXXX XXXXXXX ("EXECUTIVE")
WHEREAS, Executive is currently employed by the Company;
WHEREAS, the terms of Executive's employment are currently governed by
that certain employment agreement executed on July 7, 2003, as amended on
December 9, 2003 and June 18, 2004 (the "Employment Agreement"); and
WHEREAS, Executive would have Good Reason pursuant to the terms of the
Employment Agreement to terminate his employment with the Company upon a Change
in Control that results in the Company becoming a subsidiary of another entity
and no longer publicly traded; and
WHEREAS, the Company and Executive wish to amend the terms of the
Employment Agreement effective as of a Change in Control of the Company (as
currently defined in Section 1.04 of the NeighborCare, Inc. Severance Pay Plan),
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereby agree as follows:
1. Section 10.2 of the Employment Agreement is hereby amended by adding
the following paragraph at the end thereof:
Notwithstanding the foregoing, the provisions of Sections 10.2(a) and
10.2(c) shall only prohibit Executive from competition with, and
solicitation or service of, customers of the Company's LTC Pharmacy
Services (as defined below) business as of immediately prior to a
Change of Control and shall have no other effect; provided that the
restriction on competition shall not apply to any association by the
Executive with entities for which LTC Pharmacy Services comprises 25%
or less of such entity's total
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business; and further provided that the restriction on solicitation or
service of customers, directly or indirectly, shall apply only to
Facilities (as defined below) served by the Company as of July 6, 2005
or served by the Company during the 12-month period immediately
preceding the effective date of a Change of Control. Notwithstanding
the foregoing, during the 90-day period following the effective date
of a Change of Control, Executive shall be prohibited from soliciting
or serving, directly or indirectly, Facilities that have been
solicited by the Company during the 90-day period prior to the
effective date of such Change of Control. In addition, the provisions
of Section 10.2(b) above shall not apply to Executive's solicitation
or hiring of any two of following senior executive officers of the
Company: (a) Xxxxxxx Xxxxxx, (b) Xxxx X. Xxxxxxx, Xx., (c) Xxxxxxx X.
Xxxx, (d) Xxxx X. Xxxxxxx and (e) Xxxxxx X. Xxxxx.
"LTC Pharmacy Services" means: The provision of pharmaceutical products,
including, without limitation, prescription and non-prescription drugs;
biological products and infusion therapies; all related pharmacy services,
including, without limitation, consultant pharmacist services, medical
records, formulary management services and group purchasing and enteral
nutrition products to nursing homes, assisted living facilities,
independent living facilities, supportive living facilities, long-term
acute care hospitals, facilities for the developmentally disabled,
retirement communities, continuing care retirement communities, and other
institutional and long-term care settings (collectively, "Facilities") and
to residents of such Facilities; provided that the provision of biological
products, infusion therapies and enteral nutrition products (and related
services) to Facilities other than nursing facilities, assisted living
facilities, hospices and long-term acute care hospitals shall be permitted.
2. Except as provided in this Amendment No. 3, the terms and conditions
of the Employment Agreement shall remain unchanged.
3. This Amendment No. 3 shall be of no further force or effect if a
Change in Control of the Company does not occur on or prior to December 31,
2005.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
/s/ Xxxx Xxxxxxx
------------------ NeighborCare, Inc.
Xxxx Xxxxxxx
By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------
July 12, 2005 Name: Xxxx X. Xxxxxxx, Xx.
Title: Senior Vice President,
General Counsel, and Secretary
July 12, 2005
