EXHIBIT 10.1
EMPLOYMENT AND NONCOMPETITION AGREEMENT
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (this "Agreement") is
entered into effective as of the 12th of November, 2001, by and between PARK
PHARMACY CORPORATION, a Texas corporation with its principal place of business
located at 00000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "Company"),
and XXXXX XXXXXX, an individual residing at 0000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxx
00000 (the "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to assure itself of the services of the
Executive as an employee of the Company and the Executive is willing to so
serve; and
WHEREAS, as a condition to the Company extending employment to the
Executive, the Executive has agreed not to compete with the Company as set forth
below;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and restrictions herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties intending to be legally bound hereby agree as follows:
A G R E E M E N T
1. EMPLOYMENT TERMS AND DUTIES
1.1 EMPLOYMENT. The Company hereby employs the Executive, and the
Executive hereby accepts employment by the Company, upon the terms and
conditions set forth in this Agreement.
1.2 TERM. This Agreement shall be effective as of December 31, 2001
(the "Effective Date"). Subject to the termination provisions of Section 5, this
Agreement shall remain in effect until December 31, 2002 (the "Initial Period").
At the expiration of the Initial Period, this Agreement shall automatically
renew for successive periods of twelve (12) months each (a "Renewal Period")
unless terminated by either party as of the end of the Initial Period, or until
terminated by either party as of the end of any Renewal Period, with any such
termination being made in accordance with Section 5. The term as hereinabove
defined shall be referred to as the "Employment Period."
1.3 POSITION AND RESPONSIBILITY.
(a) POSITION. During the Employment Period, the Company shall cause the
Executive to be employed and the Executive shall serve as an employee
of the Company, as its Chief Executive Officer and President, and will
have such duties as are assigned or delegated to the Executive by the
Board of Directors of the Company, or, in the absence of such
assignment or delegation, will have such duties as are normally
associated with and inherent with such position.
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 1
(b) RESPONSIBILITIES. The Executive will devote such business time
(which shall not be less than forty (40) hours during a regular work
week), attention, skill, and energy to the business of the Company and
its Affiliates (hereinafter defined) as shall be necessary to fulfill
the Executive's duties and responsibilities hereunder. The Executive
will use his best efforts to promote the success of the Company's
business, and will cooperate fully with the Board of Directors of the
Company in the advancement of the best interests of the Company. For
purposes of the preceding sentence, an "Affiliate" shall mean (i) any
officer, director, member, manager, partner, trustee or controlling
equity owner of such person; (ii) any person controlling, controlled by
or under common control with such person or any person described in
clause (i); and (iii) any officer, member, director, trustee, manager
or controlling equity owner of any person described in (i) or (ii)
above. For purposes of this definition, the term "control" shall mean
the power to direct the management and policies of such person,
directly or indirectly, by or through equity ownership, agency or
otherwise, or pursuant to or in connection with an agreement,
arrangement or understanding (written or oral) with one or more other
persons by or through stock ownership, agency or otherwise; and the
terms "affiliated," "controlling" and "controlled" shall have meanings
correlative to the foregoing.
(c) BOARD POSITION. The Company shall take all necessary or advisable
action to cause the Company's shareholders and/or directors, as the
case may be, to elect the Executive as a member of the Board of
Directors of the Company for the Employment Period.
2. COMPENSATION
2.1 BASIC COMPENSATION.
(a) SALARY. The Executive will, during the Employment Period, be paid
an annual base salary of $175,000.00 (the "Salary"), which will be
payable in equal periodic installments according to the Company's
customary payroll practices for executives, but no less frequently than
once per month. The Salary shall be subject to increase by the Company
from time to time in its sole and absolute discretion.
(b) BENEFITS. The Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing, bonus, stock
option, life insurance, hospitalization, major medical, and other
employee benefit plans of the Company that may be in effect from time
to time, to the extent the Executive is eligible under the terms of
those plans (collectively, the "Benefits").
(c) CAR ALLOWANCE. The Executive will, during the Employment Period, be
paid a car allowance of $6,000.00 per annum, which will be payable in
equal monthly payments of $500.00 according to the Company's payroll
practices for executives.
(d) STOCK OPTIONS. The Company agrees to grant to the Executive
non-incentive stock options to acquire three million (3,000,000) shares
of the Company's common stock, $0.001 par value per share ("Common
Stock") (the "Stock Options"). The Stock Options shall have an exercise
price equal to the fair market value of the Common Stock on the date
the grant of the Stock Options is approved by the Company's Board of
Directors or
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 2
Executive Committee (the "Date of Grant"). The Stock Options shall vest
one-third (1/3) on the Date of Grant, one-third (1/3) on the first
(1st) anniversary of the Date of Grant and the remaining one-third
(1/3) on the second (2nd) anniversary of the Date of Grant. The Stock
Options shall also contain such other terms and provisions as are
contained in the Company's form of Non-Qualified Stock Option Agreement
pursuant to the Park Pharmacy 2000 Stock Incentive Plan (the "Plan"),
although the Executive and the Company understand and agree that the
Company shall determine, in its reasonable discretion, whether the
Stock Options are issued under the Plan, another stock option plan to
be adopted by the Company, or a "stand-alone" stock option agreement to
be entered into between the Company and the Executive.
(e) IMMEDIATE GRANT. Notwithstanding the foregoing provisions of this
Section 2, all of the Stock Option shall immediately be granted by the
Company and become immediately exercisable by the Executive in the
event of a Change in Control (hereinafter defined). For purposes of the
preceding sentence, a "Change of Control" shall have occurred if the
Company is merged, consolidated or reorganized into or with another
person, entity or group of entities under common control, if a majority
of the outstanding capital stock or all or substantially all of the
assets of the Company are sold to any other person, entity or group of
entities under common control and, as a result of such merger,
consideration, reorganization or sale of capital stock or assets, more
than twenty percent (20%) of the combined voting power of the then
outstanding voting securities of the surviving or acquiring person or
entity immediately after such transaction are held in the aggregate by
a person, entity or group of entities under common control who
beneficially owned less than twenty percent (20%) of the combined
voting power of the Company prior to such transaction.
2.2 INCENTIVE BONUS. As additional compensation (the "Incentive Bonus")
for the services to be rendered by the Executive pursuant to this Agreement, the
Executive may also receive an annual bonus from the Company in an amount not to
exceed fifty percent (50%) of the Salary, based upon such criteria and levels of
performance as the Company and the Executive shall mutually agree in writing.
The Executive and the Company shall use their best efforts to agree upon such
criteria and levels of performance for the Incentive Bonus for the 2002 calendar
year within thirty (30) days after the date this Agreement is fully executed and
before January 31st of each successive calendar year during the Employment
Period. Such criteria and levels of performance for the Incentive Bonus for each
calendar year shall be divided between objectives to be achieved from January
through June (the "First Half") and from July through December (the "Second
Half") of each such calendar year during the Employment Period. Any Incentive
Bonus payable from the Company to the Executive pursuant to this Section 2.2
shall be paid by the Company to the Executive semi-annually based upon the level
to which the Company's objectives for each of the First Half and Second Half are
achieved, with the Incentive Bonus for the First Half payable on or before July
31st of the year in which the Incentive Bonus was earned and with the Incentive
Bonus for the Second Half payable on or before January 31st of the year
following the year in which the Incentive Bonus was earned. The Chairman of the
Board of Directors may, in his sole and absolute discretion, award partial
payments of the Incentive Bonus if a portion, but not all, of a level of
performance criteria is achieved. Any disputes regarding the award of an
Incentive Bonus shall be resolved and conclusively determined by the
Compensation
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 3
Committee of the Board of Directors and neither the Executive nor the Company
shall contest such decision of the Board of Directors.
2.3 WITHHOLDING. The Company may withhold from any payments made or
benefits granted to the Executive under this Agreement all amounts that are
required to be withheld with respect thereto under all applicable present and
future tax laws, rules and regulations.
2.4 KEY MAN INSURANCE. The Company may, but shall not be required to,
purchase and pay the premiums on life insurance policies on the life of the
Executive. The Company shall continue to be the owner and beneficiary of said
policy, and the Executive hereby consents to the use of the assets of the
Company for such purposes. In the event that the Company decides to purchase
insurance on the life of the Executive, the Executive hereby agrees to cooperate
fully by performing all the requirements of the insurer that are necessary
conditions precedent to the issuance of such insurance policy. Any proceeds from
such insurance policy shall be the property of the Company and the deceased
Executive's heirs, devisees, personal representatives and spouse shall have no
rights therein.
3. FACILITIES AND EXPENSES
The Company will furnish the Executive office space, equipment,
supplies, and such other facilities and personnel, as the Company deems
necessary or appropriate for the performance of the Executive's duties under
this Agreement. The Company will pay on behalf of the Executive (or reimburse
the Executive for) reasonable expenses incurred by the Executive at the request
of, or on behalf of, the Company in the performance of the Executive's duties
pursuant to this Agreement, and in accordance with the Company's employment
policies for executives, including reasonable expenses incurred by the Executive
in attending business meetings. The Executive must file expense reports with
respect to such expenses in accordance with the Company's policies.
4. VACATIONS AND HOLIDAYS
For each successive twelve (12) month period during the Executive's
Employment Period, the Executive will be entitled to paid vacation in accordance
with the vacation policies of the Company in effect for its executive officers
from time to time, but in no event less than three (3) weeks per calendar year.
Such vacation shall be taken at such time or times reasonably acceptable to the
Company. In no case shall vacation time utilized be in excess of two (2)
consecutive weeks. The Executive also will be entitled to the paid holidays and
other paid leave set forth in the Company's policies.
5. TERMINATION
5.1 EVENTS OF TERMINATION. The Employment Period, the Executive's Basic
Compensation and Incentive Bonus, and any and all other rights of the Executive
under this Agreement or otherwise as an employee of the Company will terminate
(except as otherwise provided in this Section 5):
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 4
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section 5.2)
immediately upon written notice from either party to the other;
(c) for cause (as defined in Section 5.3), immediately upon written
notice from the Company to the Executive, or at such later time as such
written notice may specify; and
by either party as of the end of the Initial Period or any Renewal
Period by written notice to the other party at least sixty (60) days in
advance of the applicable period to be terminated.
5.2 DEFINITION OF "DISABILITY". For purposes of Section 5.1, the
Executive will be deemed to have a "disability" if, for physical or mental
reasons, the Executive is unable to perform the Executive's duties under this
Agreement for 120 consecutive days, or 180 days during any twelve (12) month
period, as determined in accordance with this Section 5.2. The disability of the
Executive will be determined by a medical doctor selected by written agreement
of the Company and the Executive upon the request of either party by notice to
the other. If the Company and the Executive cannot agree on the selection of a
medical doctor, each of them will select a medical doctor and the two medical
doctors will select a third medical doctor who will determine whether the
Executive has a disability. The determination of the medical doctor selected
under this Section 5.2 will be binding on both parties. The Executive must
submit to a reasonable number of examinations by the medical doctor making the
determination of disability under this Section 5.2, and the Executive hereby
authorizes the disclosure and release to the Company of such determination and
all supporting medical records. If the Executive is not legally competent, the
Executive's legal guardian or duly authorized attorney-in-fact will act in the
Executive's stead, under this Section 5.2, for the purposes of submitting the
Executive to the examinations, and providing the authorization of disclosure,
required under this Section 5.2.
5.3 DEFINITION OF "FOR CAUSE". For purposes of Section 5.1, the phrase
"for cause" means: (a) the Executive's material breach of this Agreement or any
other document, agreement or contract to which the Executive and the Company are
a party, and such breach is not cured to the satisfaction of the Company within
ten (10) days after the Company provides the Executive with written notice of
such material breach; (b) the Executive's failure to adhere to any material
written policy of the Company and such failure continues for a period of ten
(10) days after the Company provides the Executive with written notice of such
failure; (c) the Executive's appropriation (or attempted appropriation) of a
material business opportunity of the Company, including, without limitation,
attempting to secure or securing, any personal profit in connection with any
transaction entered into on behalf of the Company; (d) the Executive's
commission (or attempt to commit) an act of fraud, illegality or theft in the
course of employment with the Company that relates to the Company's assets,
activities, operations or other employees; (e) the Executive's conviction of,
the indictment for (or its procedural equivalent), or the entering of a guilty
plea or plea of no contest with respect to, a felony, the equivalent thereof, or
any other crime with respect to which imprisonment is a possible punishment;
and/or (f) the Executive's absence from his duties without the consent of the
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 5
Company's Board of Directors for more than thirty (30) consecutive days for
reasons other than illness or injury.
5.4 OBLIGATIONS OF COMPANY UPON TERMINATION. (a) Notwithstanding
anything in this Agreement to the contrary, the Company's only obligation on
termination of the Executive's employment for cause shall be to pay the
Executive any salary, accrued vacation, and unreimbursed business expenses
accrued but unpaid as of the date of termination.
(b) If the Company terminates the Executive's employment hereunder not
for cause pursuant to Section 5.3, the Company shall pay to the
Executive, within thirty (30) days after the Executive's effective date
of termination, the sum of $175,000.00, and Cobra insurance payments
for twelve (12) months after such termination date.
(c) If the Company terminates the Executive's employment hereunder not
for cause pursuant to Section 5.3, or for disability pursuant to
Section 5.2, all of the Stock Options shall immediately be granted by
the Company and become exercisable by the Executive.
6. NON-DISCLOSURE COVENANT
6.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive acknowledges that
(a) during the Employment Period and as a part of his employment, the Executive
will be and has been afforded access to confidential information of the Company
and its Affiliates including, but not limited to, financial data, customer and
vendor lists and data, technical and commercial information relating to the
development and marketing of the products of the Company ("Confidential
Information") and that such information constitutes valuable, special and unique
property of the Company; (b) public disclosure of such Confidential Information
could have an adverse effect on the Company and its business; and (c) the
provisions of this Section 6 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information.
6.2 CONFIDENTIALITY AGREEMENTS OF THE EXECUTIVE. In consideration of
the compensation and benefits to be paid or provided to the Executive by the
Company under this Agreement, the Executive covenants as follows:
(a) Both during and after the Employment Period, the Executive will
hold in confidence the Confidential Information and will not disclose
it to any person or firm, corporation, partnership, association or
other entity for any reason or purpose except with the specific prior
written consent of the Company or except as otherwise expressly
permitted by the terms of this Agreement.
(b) Any trade secrets of the Company and its Affiliates will be
entitled to all of the protections and benefits under applicable law.
(c) The Executive will not remove from the Company's or its Affiliates'
premises (except to the extent such removal is for purposes of the
performance of the Executive's duties at home or while traveling, or
except as otherwise specifically authorized in
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 6
writing by the Company) any document, record, notebook, plan, model,
component, device, or computer software owned by the Company or its
Affiliates, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Executive recognizes that,
as between the Company and the Executive, all of the Proprietary Items,
whether or not developed by the Executive, are the exclusive property
of the Company. Upon termination of this Agreement by either party, or
upon the request of the Company during the Employment Period, the
Executive will return to the Company all of the Proprietary Items in
the Executive's possession or subject to the Executive's control, and
the Executive shall not retain any copies, abstracts, sketches, or
other physical embodiment of any of the Proprietary Items.
6.3 DISPUTES OR CONTROVERSIES. The Executive recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. In
the event any arbitration or court proceeding is initiated relating to this
Agreement, the parties to this Agreement agree to make good faith efforts to
preserve the secrecy of any Confidential Information.
7. NONCOMPETITION AND NON-INTERFERENCE
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive acknowledges that:
(a) the services to be performed by him under this Agreement are of a special,
unique, unusual, extraordinary, and intellectual character; (b) the Company's
business may be, in the future, national in scope and its products may be, in
the future, marketed throughout the United States; (c) the Company competes with
other businesses that are or could be located in any part of the United States;
and (d) the provisions of this Section 7 are reasonable and necessary to protect
the Company's business.
7.2 COVENANTS OF THE EXECUTIVE. In consideration of the acknowledgments
by the Executive, and in consideration of the compensation and benefits to be
paid or provided to the Executive by the Company, the Executive covenants that
he will not, directly or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period, engage or
invest in, own, manage, operate, finance, control, or participate in
the ownership, management, operation, financing, or control of, be
employed by, associated with, or in any manner connected with, lend the
Executive's name or any similar name to, lend the Executive's credit to
or render services or advice to, any business whose products, services
or activities compete in whole or in part with the products, services
or activities of the Company or its Affiliates, anywhere within Texas
where the Company or its Affiliates conduct or market such business or
services.
(b) whether for the Executive's own account or for the account of any
other person, at any time during the Employment Period and the
Post-Employment Period, solicit business of the same or similar type
being carried on by the Company or its Affiliates, from any customer of
the Company or its Affiliates, whether or not the Executive had
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 7
personal contact with such person during and by reason of the
Executive's employment with the Company;
(c) whether for the Executive's own account or the account of any other
person (i) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as an
employee, independent contractor, or otherwise, any person who is or
was at the time of such solicitation, employment or engagement an
employee, consultant or independent contractor of the Company or in any
manner induce or attempt to induce any employee of the Company or its
Affiliates to terminate his/her employment with the Company or its
Affiliates; or (ii) at any time during the Employment Period and the
Post-Employment Period, interfere with the Company's or its Affiliates'
relationship with any person, including any person who is or was at any
time during the Employment Period, an employee, contractor, supplier,
or customer of the Company or its Affiliates; or
(d) at any time during or after the Employment Period, including the
Post-Employment Period, disparage the Company or its Affiliates or any
of their shareholders, partners, members, other holders of equity in
the Company, directors, officers, employees, or agents or any Affiliate
of the foregoing.
If any covenant in this Section 7.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section 7.2 will
be extended by the duration of any violation by the Executive of such covenant.
The Executive will, while the covenant under this Section 7.2 is in
effect, give written notice to the Company, within ten (10) days after accepting
any other employment or consulting arrangement, of the identity of the
Executive's new employer or contractor and all of the material or relevant terms
of such employment or retention. The Company may notify such new employer that
the Executive is bound by this Agreement and, at the Company's election, furnish
such new employer with a copy of this Agreement or relevant portion thereof.
The term "Post-Employment Period" means the one (1) year period
beginning on the date of termination of the Executive's employment with the
Company.
7.3 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The Executive acknowledges
that the injury that would be suffered by the Company as a result of a breach of
the provisions of this Agreement (including any provision of Sections 6 and 7)
would be irreparable and that an award of monetary damages to the Company for
such a breach would be an inadequate remedy. Consequently, the Company and the
Executive will have the right, in addition to any other rights it may have, to
obtain injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provision of this Agreement. Without
limiting the Company's rights under this Section 7.3 or any other remedies of
the Company, if
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 8
the Executive breaches any of the provisions of Section 6 or 7, the Company will
have the right to cease making any payments otherwise due to the Executive under
this Agreement.
7.4 COVENANTS OF SECTIONS 6 AND 7 ARE ESSENTIAL AND INDEPENDENT
COVENANTS. The covenants by the Executive in Sections 6 and 7 are essential
elements of this Agreement, and without the Executive's agreement to comply with
such covenants, the Company would not have entered into this Agreement or
employed or continued the employment of the Executive. The Company and the
Executive have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Company.
The Executive's covenants in Sections 6 and 7 are independent covenants
and the existence of any claim by the Executive against the Company under this
Agreement or otherwise, or against any other Person, will not excuse the
Executive's breach of any covenant in Section 6 or 7.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 6 and 7 and
the Company in Section 5.
8. GENERAL PROVISIONS
8.1 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE. The Executive
represents and warrants to the Company that the execution and delivery by the
Executive of this Agreement does not, and the performance by the Executive of
the Executive's obligations hereunder will not, with or without the giving of
notice or the passage of time, or both: (a) violate any judgment, writ,
injunction, or order of any court, arbitrator, or governmental agency applicable
to the Executive; or (b) conflict with, result in the breach of any provisions
of or the termination of, or constitute a default under, any agreement to which
the Executive is a party or by which the Executive is or may be bound.
8.2 OBLIGATIONS CONTINGENT ON PERFORMANCE. The obligations of the
Company hereunder, including its obligation to pay the compensation provided for
herein, are contingent upon the Executive's performance of the Executive's
obligations hereunder.
8.3 WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 9
such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
8.4 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties hereto and
their respective successors, assigns, heirs, and legal representatives,
including any entity with which the Company may merge or consolidate or to which
all or substantially all of its assets may be transferred. The duties and
covenants of the Executive under this Agreement, being personal, may not be
delegated.
8.5 NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or as provided in clause
(c) below, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service, in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
If to the Company: Xxx Xxxx
Chairman, Board of Directors
Park Pharmacy Corporation
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
With mandatory
copy to: Xxxxx-Xxxxx Xxxxx, Esq.
Xxxx Xxxxxxxx & Xxxxxx LLP
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
000-000-0000
000-000-0000 (facsimile)
If to the Executive: Xxxxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
8.6 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, and any other
agreements, contracts or documents entered into by the parties as of the
Effective Date, contain the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between or among any of the parties hereto.
This Agreement may not be amended orally, but only by an agreement in writing
signed by the parties hereto.
8.7 GOVERNING LAW. This Agreement will be governed by the law of the
State of Texas without regard to conflicts of laws principles.
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 10
8.8 CONSENT TO JURISDICTION. THE EXECUTIVE HEREBY AGREES THAT ANY LEGAL
ACTION OR PROCEEDING AGAINST HIM WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT
IN THE COURTS OF THE STATE OF TEXAS IN DALLAS COUNTY OR OF THE UNITED STATES OF
AMERICA FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION AS THE COMPANY MAY
ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, THE EXECUTIVE ACCEPTS AND CONSENTS
TO FOR HIMSELF, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS AND AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, UNLESS WAIVED BY
THE COMPANY IN WRITING WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY HIM
AGAINST THE COMPANY. The Executive hereby irrevocably consents that all process
served or brought against him with respect to any such proceeding in any such
court in Texas shall be effective and binding service in every respect if sent
by registered mail, or (if permitted by law) by Federal Express or other similar
overnight courier service, to the Executive at his address set forth in Section
8.5 (or such other address as the Company is notified of in accordance with the
provisions of Section 8.5). Nothing herein shall affect the right of the Company
to serve process in any other manner permitted by law or shall limit the right
of the Company to bring proceedings against the Executive in the courts of any
other jurisdiction.
8.9 WAIVER OF JURY TRIAL. EACH OF THE EXECUTIVE AND THE COMPANY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE EXECUTIVE OR
THE COMPANY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COMPANY ENTERING
INTO THIS AGREEMENT.
8.10 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number, as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
8.11 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
8.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 11
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement effective as of November 12, 2001.
COMPANY:
PARK PHARMACY CORPORATION
By: /s/ XXX XXXX PARK
--------------------------------------
Printed Name: Xxx Xxxx Park
----------------------------
Title:
-----------------------------------
EXECUTIVE:
/s/ XXXXX XXXXXX
-----------------------------------------
Xxxxx Xxxxxx
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 12
