EXHIBIT 10.36
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") dated this 1st day of November, 1997 between
Vitalink Pharmacy Services, Inc. ("Employer" or "Vitalink"), a Delaware
corporation with its principal office at 0000 Xxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 ("Principal Office"), and Xxxxxx X. Xxxxxxx
("Employee"), sets forth the terms and conditions governing the employment
relationship between Employee and Vitalink.
1. Employment. During the term of this Agreement, as hereinafter defined,
Employer hereby employs Employee as Vice President and Corporate Controller.
Employee hereby accepts such employment upon the terms and conditions
hereinafter set forth and agrees to faithfully and to the best of his/her
ability perform such duties as may be from time to time assigned by Employer,
its Board of Directors or its designees, such duties at all times to be rendered
at the Principal Office of Employer and to be consistent with the duties
customarily associated with Employee's position and title.
2. Term. Subject to the provisions for termination hereinafter provided,
the term of this Agreement shall begin on the date of this Agreement and shall
terminate on April 30, 1999. Upon expiration of said period, the parties may
extend the term of they mutually agree to do so.
3. Compensation. For all services rendered by Employee under this
Agreement during the term thereof, Employer shall pay Employee the following
compensation:
a) Salary. A base salary of One Hundred Fifteen Thousand Dollars
($115,000.00) per annum payable in accordance with Employer's standard payroll
practices from time to time in effect. Such salary shall be reviewed annually
and may be increased in accordance with Employer's standard practices.
b) Incentive Bonus. Employee shall have the opportunity to earn a
percentage of the base salary set forth in subparagraph 3(a) above in Employer's
bonus plans as adopted from time to time by Employer's Board of Directors.
c) Automobile. Employer shall provide Employee with the use of a
suitable automobile during the term of this Agreement, and shall provide gas,
oil, maintenance, insurance and other operating expenses for such automobile, or
may provide a car allowance in lieu of the foregoing, in accordance with
Employer's standard practices.
d) Stock Options. Employee shall be eligible to receive options
under the Vitalink Pharmacy Services, Inc. 1996 Long Term Incentive Plan, or
similar plan, to
purchase common shares of Vitalink or receive stock appreciation rights in
accordance with the policy of the Vitalink Board of Directors as in effect from
time to time.
e) Other Benefits. Employee shall, when eligible, be entitled to
participate in all other fringe benefits accorded headquarters employees by
Employer as are in effect from time to time.
4. Extent of Services. Employee shall devote his full time, attention,
and energies to the business of Employer, and shall not during the term of this
Agreement be engaged in any other business activity whether or not such business
activity is pursued for gain, profit, or other pecuniary advantage; but this
shall not be construed as preventing Employee from investing his/her assets in
the securities of public companies, or the securities of private companies or
limited partnerships, if such holdings are passive investments of One Percent
(1%) of less of outstanding securities and Employee does not hold positions of
director, officer, employee or general partner of such company or partnership.
Employee warrants and represents that he/she has no contracts or obligations to
others which would materially inhibit the performance of his/her services under
this Agreement.
5. Disclosure of Use of Information. Employee recognizes and acknowledges
that Employer's and its affiliates' present and prospective clients, contracts,
development plans, operating data, policies and personnel, as they may exist
from time to time, are valuable, special and unique assets of Employer's
business. Throughout the term of this Agreement and for a period of two (2)
years after its termination or expiration for whatever cause or reason, Employee
shall not directly or indirectly, or cause others to: (1) make use of or
disclose to others any information relating to the business of Employer that has
not otherwise been made public, including but not limited to Employer's and its
affiliates' present or prospective clients, contracts, development plans,
operating data and policies; or (2) without Employer's prior written consent,
offer employment to or employ on behalf of Employee or any other person, any
person who at any time is or has been within the preceding one (1) year an
employee of Employer or any affiliate of Employer, or induce such person
directly to leave his or her employment. In the event of an actual or threatened
breach by Employee of the provisions of this paragraph, Employer shall be
entitled to injunctive relief restraining Employee from committing such breach
or threatened breach. Nothing herein stated shall be construed as
preventing Employer from pursuing any other remedies available to Employer for
such breach or threatened breach, including the recovery of damages from
Employee.
6. Notices. Any notice, request or demand required or permitted to be
given under this Agreement shall be in writing, and shall be delivered
personally to the recipient or sent by certified, registered or overnight mail
to his/her resident in the case of Employee, or to the Principal Office in the
case of the Employer.
7. Elective Position. Nothing contained in this Agreement is intended
to nor shall be construed to abrogate, limit or affect the powers, rights and
privileges of the Board of Directors or stockholders to remove Employee as Vice
President and Corporate Controller, with or without just cause, during the term
of this Agreement or to elect someone other than Employee as Vice President and
Corporate Controller as provided by law and the By-Laws of Employer; provided;
however, that if Employee is so removed without cause, it is expressly
understood and agreed, in the event any one or combination of the foregoing
occurs, Employee's rights under this Agreement shall in no way be prejudiced,
and Employee shall be entitled to immediately receive compensation referred to
in paragraph 3 above, except ungranted stock options, provided that he is ready,
willing and able to perform the duties and responsibilities set forth above.
Notwithstanding the foregoing, the election or appointment of Employee to a
different executive position shall not be considered removal hereunder.
Employee upon removal shall be entitled to pursue other employment, and Employer
shall be entitled to receive as offset and thereby reduce its payment, the
amount received by Employee from any other active employment. As a condition to
Employee receiving his compensation from Employer, Employee agrees to furnish
Employer annually with full information regarding such other employment and to
permit inspection of his employment records and copies of his income tax
returns. Employer shall receive credit for unemployment insurance benefits,
social security insurance or like amounts actually received by Employee.
8. Waiver of Breach. The waiver of either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
9. Assignment. The rights and obligations of Employer under this
Agreement shall insure to the benefit of and shall be binding upon the
successors and assigns of Employer. The obligations of Employee hereunder may
not be assigned or delegated.
10. Termination of Agreement. This Agreement shall terminate upon the
following events and conditions:
(a) Upon expiration of its term.
(b) For just cause, including but not limited to refusal to carry
out duties and instructions relative to this position, dishonesty,
violation of this Agreement, and any willful acts or omissions inimical
to or contrary to policies of Employer not arbitrarily applied in the case
of Employee. Just cause shall also include solicitation by Employee of
offers of employment from others and solicitation by Employee of the
services of, or positive response by Employee to solicitation by,
professional search or executive recruitment organizations prior to the
last year of this Agreement. Employee shall be entitled to fourteen (14)
days advance written notice of termination, except where the basis for
termination constitutes conduct on the part of Employee involving
dishonesty or bad faith, in which case the termination shall be effective
upon the sending of notice.
(c) In the event that Employee is unable to perform the services
called for hereunder by reason of incapacity or disablement for more than
six (6) months (whether or not consecutive) in any period of twenty-four
(24) consecutive months, Employer shall have the right to terminate this
Agreement by written notice to Employee. Not withstanding such termination,
Employee shall be entitled to any disability benefits accorded headquarters
employees pursuant to paragraph 3(e) above. In the event of such
termination, all non-vested obligations of Employer or Employee pursuant to
this Agreement shall terminate.
(d) In the event of Employee's death during the term of this
Agreement, the Agreement shall terminate as of the date thereof.
11. Entire Agreement. This instrument contains the entire agreement of the
parties. It may be changed only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension, or
discharge is sought. This Agreement shall be governed by the laws of the State
of Illinois, and any litigation shall be conducted in the State of Illinois.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first set forth above.
Employer:
Attest: VITALINK PHARMACY SERVICES, INC.
/s/ Xxxxxx X. Xxxxxx, III /s/ Xxxxx X. XxXxxxx
__________________________________ By:_____________________________________
Xxxxxx X. Xxxxxx, III Xxxxx X. XxXxxxx
Secretary President and Chief Operating Officer
Witness: Employee:
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxx
__________________________________ ________________________________________
Xxxxxx X. Xxxxxxx
