Exhibit 10.65
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT ("Agreement") is made as of the
effective date designated below ("Effective Date"), by and between Care Clinic,
Inc., a Delaware corporation, ("Employer") and the undersigned individual
("Employee") and amends, restates and supersedes the Employment Agreement
originally made by Employer and Employee as of the Effective Date. Arcadia
Resources, Inc. ("KAD"), a Nevada corporation and parent of Employer, joins in
the execution of this Agreement solely for purposes of Section 3(I) herein.
RECITALS
Subject to the terms of this Agreement, Employer desires to employ, or
continue the employment of, Employee in the position(s) set forth herein, and
Employee desires to accept such employment.
NOW, THEREFORE, in consideration of the recitals and covenants herein and
other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:
1. EMPLOYMENT. Beginning on the Effective Date, Employer agrees to employ,
or to continue the employment of, Employee and Employee hereby accepts such
employment, subject to and contingent on the terms specified herein.
2. DUTIES AND RESPONSIBILITIES. Employee shall serve in the position(s)
designated below on a full-time basis and shall report to Employer's Chairman of
the Board. Employer may hereafter change Employee's reporting relationships upon
obtaining Employee's written consent which shall not be unreasonably withheld.
Employee shall perform such duties and responsibilities as are consistent with
and required by such position(s) held by Employee and/or assigned by Employer
and subject to Employer's policies and procedures applicable to its employees
generally. Employee agrees to use Employee's best efforts to perform any and all
such duties and responsibilities necessary or appropriate to perform the
functions of such position(s). Employee shall have the right to determine the
location at which such employment services will be provided. While employed by
Employer, Employee agrees not to work for any other business or enterprise,
whether as an employee, agent, independent contractor or in any other capacity
whatsoever, except that Employee may pursue two patents pending as of the
Effective Date, a project involving authoring a book/associated website, a local
pharmacy project in the New York City metropolitan area, and may volunteer with
the Wellness Community, a 501 (c)(3) not for profit company provided that
Employee otherwise fulfills Employee's obligations to Employer. For purposes of
this Agreement, all matters requiring or permitting the agreement, consent, or
other determination or action of Employer shall be made by Employer's Board of
Directors or Employer's Chairman of the Board.
3. COMPENSATION AND BENEFITS. Employer agrees to pay and provide Employee,
and Employee agrees to accept in full consideration for Employee's services to
Employer, the following:
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A. SALARY. An annual base salary in the amount designated below ("Annual
Base Salary"), less applicable withholdings, payable in accordance with the
normal payroll practices of Employer. Employee's Annual Base Salary may be
increased by Employer from time to time in the discretion of Employer's Board of
Directors and will be subject to annual review by the Board of Directors.
B. VACATION AND SICK TIME. Employee shall be entitled to take four (4)
weeks of paid vacation per year, plus a limited amount of paid time off for
sickness, disability, or other personal reasons in accordance with the
Employer's general time-off policies in effect from time to time for its
employees. There is no cash payment for unused vacation and other unused paid
time off benefits. Unused vacation and other unused paid time off benefits do
not carry over from year to year.
C. FRINGE BENEFITS/RETIREMENT PLAN. Employee shall be entitled to health
care benefits, and additionally to participate in such additional fringe
benefits and qualified retirement plans and other plans offered by Employer to
its employees generally from time to time, in accordance with Employer's
eligibility and participation provisions of such plans.
D. EXPENSE REIMBURSEMENT. The Employer shall reimburse Employee all
reasonable out-of-pocket expenses incurred by Employee in connection with the
performance of duties hereunder and upon Employee's submission of such receipts
and records as Employer requires to evidence such expenses.
E. ANNUAL BONUS. Employer's Board of Director's, in its discretion, will
establish an annual Employee bonus plan.
F. BOARD POSITION. During the term of Employee's employment, and provided
that during such term of employment the Employee Management Team (as hereinafter
defined) owns fifteen (15%) percent or greater of the combined holdings of
common stock of Employer owned by the Employee's Management Team and KAD,
Employee shall be designated to serve on the Board of Directors of Care Clinic,
Inc.
G. D& O INSURANCE. During the term of Employee's employment and for a
period of three years thereafter, Employer shall at all times keep in place a
directors and officers' liability insurance policy (or policies).
H. INDEMNIFICATION. The Employer agrees that (i) if the Employee is made a
party, or is threatened to be made a party, to any proceeding by reason of the
fact that he is or was a director, officer, employee, agent or representative of
the Employer or was serving at the request of Employer as a director, officer,
employee, agent or representative of another person or entity or (ii) if any
claim is made, or threatened to be made, that arises out of or relates to the
Employee's service in any of the foregoing capacities, then the Employee shall
promptly be indemnified and held harmless by the Employer to the fullest extent
legally permitted or authorized by the Employers' certificate of incorporation,
bylaws or board of directors resolutions or, if greater, by the laws of the
State of Florida, against any and all costs, expenses, liabilities and losses
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(including without limitation, attorney's fees, judgments, interest, expenses of
investigation, penalties, fines, and amounts paid or to be paid in settlement)
incurred or suffered by the Employee in connection herewith, if the Employee
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the Employer and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the Employee's
conduct was unlawful, and such indemnification shall continue as to the Employee
even if the Employee has ceased to be a director, officer, employee, agent, or
representative of the Employer or any other person or entity and shall inure to
the benefit of the Employers heirs, executors and administrators. Employer shall
advance to the Employee all costs and expenses reasonably incurred by the
Employee in connection with a proceeding or claim within fifteen (15) days after
receiving written notice of such costs and expenses and requesting such an
advance. Such notice shall include an undertaking by the Employee to repay the
amount advanced if the Employee is ultimately determined not to be entitled to
indemnification against such costs and expenses. For the purposes of this
Agreement, "proceeding" shall mean any threatened or actual action, suit, or
proceeding (whether civil, criminal, administrative, investigative, appellate or
other) and "claim" shall mean any claim, demand, request, investigation,
dispute, controversy, threat, discovery request, or request for testimony or
information.
Notwithstanding the foregoing, indemnification or advancement of expenses shall
not be made to or on behalf of the Employee, if a judgment or other final
adjudication establishes that Employee's actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the Employee had reasonable cause to
believe Employee's conduct was lawful or had no reasonable cause to believe
Employee's conduct was unlawful;
(b) A transaction from which the Employee derived an improper personal benefit
within the scope of Section 831 of the Florida Business Corporation Act;
(c) A circumstance under which the liability provisions of Section 834 (unlawful
distributions) of the Florida Business Corporation Act are applicable; or
(d) Willful misconduct or a willful disregard for the best interests of the
Employer in a proceeding by or in the right of the Employer to procure a
judgment in its favor.
Notwithstanding anything in this Agreement to the contrary, Employee shall not
be entitled to the rights of indemnification provided in this Section 3(H) in
the event that Employee's employment is terminated by Employer for cause
pursuant to Section 4(c)(i), 4(c)(ii) or 4(c)(iii) as a result of said event.
I. EQUITY COMPENSATION. KAD restricted shares of common stock (the "KAD
Restricted Shares"), and the Care Clinic, Inc. restricted shares of common stock
(the "CCI Restricted Shares") as referenced herein are sometimes referred to
individually as a "Security" or collectively as the "Securities." All Securities
shall be non-assessable and subject to the same rights, privileges, preferences
and distributions as the same class of Securities held by other holders. The
term "Issuer" shall mean Arcadia Resources, Inc.
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in the case of the KAD Restricted Shares and shall mean Care Clinic, Inc. in the
case of the CCI Restricted Shares. The term "CCI Divestiture" shall mean the
acquisition of the beneficial ownership under the Securities Exchange Act of
1934 of 51% percent or more of the voting securities of Care Clinic, Inc., from
the shares of CCI common stock held by KAD, or all or substantially all of CCI's
assets, by a single person or entity or a group of affiliated persons or
entities unaffiliated with Arcadia Resources, Inc. or Care Clinic, Inc.
(1) KAD Restricted Shares. Conditioned and contingent on compliance by
Employee with all terms and conditions specified in this Agreement,
Employee will be awarded 800,000 KAD Restricted Shares which are
restricted as to transferability and additionally subject to
forfeiture in the event that Employee is not employed by the Employer
as of each vesting date (the "Vesting Date") in subsection (a),
subject to subsections (b) and (c) below. Employee will acquire rights
as a shareholder in the KAD Restricted Shares upon each Vesting Date.
Vested Securities shall not be subject to forfeiture under any
circumstance or for any reason.
a. Vesting. Subject to acceleration or forfeiture as specified in
section (1) immediately above and subject to subsections (b) and
(c) below, the Employee's KAD Restricted Shares shall vest in
four (4) equal installments as follows:
(1) 25% of the Employee's KAD Restricted Shares shall vest on
April 1, 2007;
(2) An additional 25% of the Employee's KAD Restricted Shares
shall vest on April 1, 2008;
(3) An additional 25% of the Employee's KAD Restricted Shares
shall vest on April 1, 2009; and
(4) An additional 25% of the Employee's KAD Restricted Shares
shall vest on April 1, 2010; on which date all of the
Employee's KAD Restricted Shares shall be vested.
b. Accelerated Vesting. All of the Employee's KAD Restricted Shares,
other than those forfeited, shall vest immediately upon the first
to occur of (a) a Change in Control, or (b) the CCI Divestiture,
provided that Employee is employed by Employer as of either such
event.
c. Accelerated Vesting in the Event of a Termination Without Cause.
In the event that Employee's Employment is terminated by Employer
without cause prior to the occurrence of any of the events set
forth in Section I(1)(b) above (the "Early Termination"), the
Employee's KAD Restricted Shares shall vest as follows:
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(1) In the event that an Early Termination occurs prior to April
1, 2007, 25% of the Employee's KAD Restricted Shares shall
vest; and
(2) In the event that an Early Termination occurs on or after
April 1, 2007, an additional 6.25% of the Employee's KAD
Restricted Shares shall vest as of the last day of each
fiscal quarter completed thereafter prior to termination of
Employee's employment.
d. Availability of KAD Shares for Other Management Employees and
Future Hires. KAD agrees that an aggregate of 2,026,471 shares of
KAD Restricted Shares ("Management KAD Restricted Shares") shall
be reserved for award to up to six CCI management level employees
including Employee, and that an additional 150,000 shares of KAD
common stock shall be reserved for future CCI hires.
Collectively, the 2,176,471 shares shall be known as the
"Management KAD Restricted Shares." Employee has to the right to
determine the awardees that shall be entitled to the Management
KAD Restricted Shares and the amount of such awards in Employee's
sole discretion and subject to KAD Board or Board Compensation
Committee approval which shall not be unreasonably withheld. A
list of the current awardees is set forth as Exhibit A.
Collectively, the employees entitled to receive the Management
KAD Restricted Shares and the CCI Restricted Shares shall be
known as the "Employee Management Team." To the extent that any
of the Management KAD Restricted Shares do not vest, they will
become immediately available for future grants to future hires in
the Employment Management Team in Employee's sole discretion and
subject to KAD Board or Board Compensation Committee approval
which shall not be unreasonably withheld.
(2) CCI Restricted Shares. Conditioned and contingent on compliance by
Employee with all terms and conditions specified in this Agreement,
Employee will be awarded or will be permitted to purchase 44,000
shares of shares of CCI common stock which are restricted as to
transferability and additionally subject to forfeiture in the event
that Employee is not employed by the Employer as of each vesting date
(the "Vesting Date") in section (a) below. Employee will acquire
rights as a shareholder in the CCI Restricted Shares upon each Vesting
Date.
a. Vesting. Subject to forfeiture, the Employee's CCI Restricted
Shares shall vest in two (2) equal installments as follows:
(1) 50% of the Employee's CCI Restricted Shares shall vest on
September 1, 2007; and
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(2) An additional 50% of the Employee's CCI Restricted Shares
shall vest on September 1, 2008, on which date all of the
Employee's CCI Restricted Shares shall be vested.
b. Transferability Restriction and KAD Right of First Refusal. Prior
to the consummation of the CCI Divestiture, Employee agrees not
to sell or otherwise transfer any interest in any of the CCI
Restricted Shares to any third party, except as follows: (i)
Employee shall first present the opportunity to KAD in writing
the ("Sale Notice") and (ii) KAD, in its discretion, may elect to
purchase the CCI Restricted Shares on the same terms and
conditions as presented or, if KAD does not choose to purchase
the CCI Restricted Shares, it shall give its written consent to
the proposed sale or other transfer within ten (10) business days
of receipt of the Sale Notice. Except as set forth herein,
Employee agrees not to sell or otherwise transfer any interest in
any of the CCI Restricted Shares to any third party prior to the
consummation of the CCI Divestiture. Notwithstanding the
foregoing and subject to the other terms and conditions of this
Agreement, Employee may transfer Employee's CCI Restricted
Shares, in the case of Employee's death, by will or the laws of
descent and distribution or, during Employee's lifetime, to
Employee's "family member" (as defined in Form S-8) through gift
or domestic relations order as permitted by Form S-8 (as
currently in effect or as it may be amended).
c. Employee Put Right. In the event the CCI Divestiture is not
consummated by September 1, 2008 and provided that Employee is
then and remains employed by CCI through the closing date
referenced below, and that the holders of a majority of the CCI
Restricted Shares held by the Employee Management Team then
employed by Employer has given KAD written notice obligating KAD
to purchase all of their CCI Restricted Shares at a price equal
to the fair market value per share, as of the last day of the
fiscal quarter most recently ended before the date of Employee's
notice, determined by an independent appraisal, Employee may also
then give Kad written notice to purchase all Employee's CCI
Restricted Shares at the same time for the same valuation. The
appraiser shall be appointed by and mutually acceptable to KAD
and Employee, which acceptance shall not be unreasonably
withheld. KAD and Employee shall share equally in the cost of the
appraisal and hereby agree to be bound by the valuation
determined thereby. At its election, KAD may pay up to 50% of the
purchase price in shares of KAD stock, with the balance paid in
cash at closing. KAD and Employee shall reasonably cooperate to
complete and close the sale and purchase within 120 days of the
date of Employee's notice to KAD.
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d. Shareholding Position. KAD agrees that prior to consummation of
the CCI Divestiture, up to 1,000,000 shares of CCI common stock
shall be authorized and issued, with up to 110,000 shares being
held by the Employee Management Team including Employee and an
additional 40,000 shares of CCI common stock being reserved for
future employees (collectively, the 150,000 CCI Restricted Shares
shall be known as the "Management CCI Restricted Shares.").
Employee has the right to determine the awardees that shall be
entitled to receive the Management CCI Restricted Shares and the
amounts of such awards in Employee's sole discretion and subject
to CCI Board approval which shall not be unreasonably withheld. A
list of the current awardees is set forth as Exhibit A. To the
extent that any of the Management CCI Restricted Shares do not
vest, they will become immediately available for future grants to
future hires in the Employee Management Team in Employee's sole
discretion and subject to KAD Board or Board Compensation
Committee approval which shall not be unreasonably withheld").
(3) Nature of Securities. All Management KAD Restricted Shares shall be
issued pursuant to the Arcadia Resources, Inc. 2006 Equity
Compensation Plan or other available plan contingent on and subject to
approval by KAD's shareholders and listing on AMEX, and compliance
with all terms and conditions specified therein. KAD represents and
warrants that the 2006 Equity Compensation Plan and the Management KAD
Restricted Shares to be issued thereunder are approved by the KAD
Board of Directors. KAD represents that it shall use its best efforts
to fully comply with all applicable AMEX rules and regulations
relative to issuance of the KAD Restricted Shares.
(4) Change in Control. "Change in Control" shall mean, for purposes of
this Agreement, the occurrence of any of the following: (i)
reorganization, merger or consolidation with an unaffiliated entity
and in which KAD is not the surviving corporation, (ii) a sale of all
or substantially all of the assets of KAD to another person
unaffiliated with Arcadia Resources, Inc. or Care Clinic, Inc., (iii)
the acquisition of beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of an aggregate of 25% or more of the
voting power of KAD's outstanding voting securities by any single
person or group (as such term is used in Rule 13d-5 under the Exchange
Act.
(5) Registration of Securities. Arcadia Resources, Inc. agrees to file
with the U.S. Securities and Exchange Commission a registration
statement within six months from the execution of this Agreement on
form S-8 or such other form as Arcadia may be eligible to register the
award and resale of the KAD Restricted Shares and to comply with the
undertakings specified by the Commission's rules relative to the
filing of post-effective
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amendments for such registration form. Employee agrees that all sales
and transfers of any interest in the KAD Restricted Shares shall be
made in compliance with applicable federal and state law, this
Agreement and KAD's policies on xxxxxxx xxxxxxx in effect from time to
time applicable to employees of KAD and its subsidiaries which shall
not be arbitrarily applied and which generally prohibit trading ten
calendar days before the end of a fiscal quarter through the first
trading day after KAD's earnings release or as determined by KAD due
to an individual's possession of material, non-public information. In
the event that Employee seeks to sell, assign, transfer or otherwise
dispose of Securities on the basis of an exemption from registration
under the Securities Act of 1933, as amended, and under the provisions
of applicable state law, Employee shall provide to Arcadia, at
Employee's cost, an opinion of Employee's counsel reasonably
acceptable to the effect that the transaction is exempt from
registration, and Arcadia shall issue appropriate instructions to its
transfer agent at no cost necessary to effectuate the sale.
(6) Adjustments Upon Changes in Capitalization. In the event of changes in
the outstanding securities of the Issuer by reason of distributions,
dividends, splits, reverse splits, recapitalizations, mergers,
consolidations, combinations or exchanges of units or shares,
reorganizations, or liquidations, the number of Securities to be
issued pursuant to the KAD Restricted Shares and the CCI Restricted
Shares shall be correspondingly adjusted, so that Employee's
proportionate interest in the Issuer, any successor thereto, or in the
cash, assets or other securities into which the Securities are
converted or exchanged, shall be maintained to the same extent, as
near as may be practicable, as immediately before the occurrence of
any such event. Furthermore, in the event of offerings of shares of
common stock of CCI or any other securities which shall be convertible
into shares of common stock of CCI for a purchase price up to Twenty
($20,000,000) Million Dollars, the number of Employee's CCI Restricted
Shares shall be correspondingly adjusted, so that Employee's
proportionate interest in the Issuer, any successor thereto, or in the
cash, assets or other securities into which the Securities are
converted or exchanged, shall be maintained to the same extent, as
near as may be practicable, as immediately before the occurrence of
any such sale; provided, however, that this provision shall not apply
to subsequent offerings after the Twenty ($20,000,000) Million Dollar
threshold is reached; and further provided that if the first such
offering exceeds Twenty ($20,000,000) Million Dollars, the preceding
anti-dilution provision shall apply.
(7) Non-Transferability of the Securities. Subject to any express terms
and conditions of this Agreement to the contrary, the Securities shall
not be transferable until each restriction specified herein shall
terminate. Notwithstanding the foregoing and subject to the other
terms and conditions of this Agreement, Employee may transfer
Employee's
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Securities, in the case of Employee's death, by will or the laws of
descent and distribution or, during Employee's lifetime, to Employee's
"family member" (as defined in Form S-8) through gift or domestic
relations order as permitted by Form S-8 (as currently in effect or as
it may be amended). Upon the vesting of the Securities pursuant to the
Vesting Schedules herein, the Employee shall be entitled to sell the
Securities subject to and in compliance with all applicable federal
and state securities laws, the terms of this Agreement and KAD's
policies on xxxxxxx xxxxxxx in effect from time to time applicable to
employees of KAD and its subsidiaries which shall not be arbitrarily
applied and which generally prohibit trading ten calendar days before
the end of a fiscal quarter through the first trading day after KAD's
earnings release or as determined by KAD due to an individual's
possession of material, non-public information.
(8) Award Agreements. The KAD Restricted Shares and the CCI Restricted
Shares shall be evidenced by award agreements and such other documents
and terms as Employer shall require the are consistent with the terms
described in this Agreement.
(9) Tax Obligations and Withholdings. Employee shall be responsible for
all tax obligations arising from the Securities awarded hereunder.
Employee shall cooperate as Employer deems necessary for the
withholding of taxes.
4. TERMINATION OF EMPLOYMENT AND OBLIGATION UPON TERMINATION OF EMPLOYMENT.
Employee's term of employment shall commence on the Effective Date and shall
continue until terminated as follows:
A. TERMINATION WITHOUT CAUSE. Employer may terminate the Employee
without cause upon ten (10) business days written notice. If the Employer
terminates Employee's employment without cause, Employer shall pay Employee
the unpaid Annual Base Salary and benefits earned and accrued, plus all
unreimbursed expenses through such date, plus the Employer shall pay, as
severance, an amount equal to (i) six (6) months of Employee's Annual Base
Salary at the rate in effect on the date of termination, if employment
terminates within one year of the Effective Date of this Agreement, and
(ii) an amount equal to twelve (12) months of Employee's Annual Base Salary
at the rate in effect on the date of termination, if employment terminates
after the completion of one year from the Effective Date of this Agreement
or thereafter. Such severance amount, less applicable withholdings, shall
be paid over six (6) months if Employee is terminated pursuant to Section
4A(i) or twelve (12) months if Employee is terminated pursuant to Section
4A(ii), respectively, following the termination of Employee's employment in
accordance with Employer's normal payroll practices. No interest shall be
paid on the severance amounts set forth in this paragraph. Termination
without cause shall include a termination by the Employer due to the
failure of Employee to fully achieve all of any one or more, including any
subpart, of the applicable annual Management by Objectives ("MBO") goals
specified in the Addendum (attached to this Agreement and incorporated
herein by this reference) or as the same may be amended in writing by
Employer and Employee.
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B. TERMINATION UPON DEATH OR DISABILITY. Employee's employment
hereunder shall terminate upon the death or disability of the Employee. For
purposes of this Agreement, "Disability" of the Employee will be deemed to
have occurred whenever the Employee has suffered physical or mental
illness, injury, or infirmity that prevents the Employee from performing,
with or without reasonable accommodation, the Employee's essential job
functions under this Agreement for a period of ninety (90) consecutive
days; provided that the ninety (90) day period shall be available to
Employee only once during any twenty-four month period. In the event of a
termination due to death or Disability, Employer shall be obligated to pay
Employee or Employee's estate, the amount of any unpaid Annual Base Salary
earned and accrued through the date of termination, together with any
unreimbursed expenses.
C. TERMINATION FOR CAUSE. Employee's employment may be terminated by
the Employer for cause upon written notice from the Employer specifying in
detail the particular events and circumstances upon which the Employer is
relying in terminating Employee's employment for cause. The Employee shall
have ten (10) business days following receipt of the written notice to
correct such events and circumstances. In the event that Employee does not
correct such events and circumstances at the end of the ten (10) day notice
period, he may be terminated for cause, If the Employer terminates Employee
for cause, it shall only be obligated to pay Employee the amount of any
unpaid Annual Base Salary earned and accrued through the date of
termination, together with any unreimbursed expenses. For the purposes of
this agreement "cause" means any of the following:
(i) The conviction by Employee of any crime involving moral
turpitude;
(ii) The conviction by Employee of, or pleading guilty or no
contest to, any crime, whether or not involving the Employer, constituting
a felony in the jurisdiction involved, which Employer, in its sole
discretion, determines may have an injurious effect on it;
(iii) The Employee's gross negligence, willful misconduct,
insubordination, or the willful and repeated failure or refusal to perform
such duties as may be properly delegated to Employee by Employer hereunder;
or
(iv) The Employee's failure to act in the best interest of the
Employer consistent with Employee's fiduciary dute as defined by law or the
non-performance of Employee's duties provided such duties are normally
associated with Employee's position and not violative of applicable laws,
provided, however, that termination hereunder for cause shall not include a
termination by the Employer due to Employee's failure to fully achieve all
of any one or more, including any subpart, of the applicable annual MBO
goals per Section 4(A).
D. TERMINATION FOR GOOD REASON. Employee may terminate this Agreement
for "Good Reason" at any time by written notice to the Employer. "Good
Reason" shall be limited to the following circumstances: (i) a material
breach of this Agreement by the Employer which is not cured after ten days
written notice to the
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Employer, (ii) a reduction by the Employer in the base salary of Employee,
or (iii) a dissolution or liquidation of the Employer; (iv) failure to
maintain Employee in a position commensurate with that referred to in
Section 2 of this Agreement and/or changing Employee's title as set forth
in "Employee Specific Information" of this Agreement without Employee's
written consent which shall not be unreasonably withheld; or (v) the
assignment to the Employee of any duties inconsistent with the Employee's
position, authority, duties or responsibilities as contemplated by this
Agreement, or any other action by Employer which results in a diminution of
such position, authority, duties or responsibilities, or which materially
impair the Employer's ability to function in his position, without first
obtaining Employee's written consent which shall not be unreasonably
withheld. In the event that the Employee terminates this Agreement for Good
Reason, he shall be entitled to receive the severance payments set forth in
Section 4A, except that, unless the Employee can demonstrate that he is not
a "specified employee" as that term is defined in Section 409A(a)(2)(B)(i)
of the Code (as hereinafter defined) when he invokes this section, it shall
be presumed that the Employee is a "specified employee" for purposes of
Code Section 409A and amounts due the Employee under this section shall be
delayed as required by Code Section 409A(a)(2)(B)(i).
E. RESIGNATION BY THE EMPLOYEE. The Employee may resign at any time
upon thirty (30) days written notice. In the event of a resignation by the
Employee, the Employer shall only be obligated to pay Employee the amount
of any unpaid Annual Base Salary earned and accrued through the date of
termination, together with any unreimbursed expenses.
F. NO FURTHER OBLIGATIONS. Upon the termination of Employee's
employment, Employer shall have no further liability or obligation
whatsoever to Employee or Employee's personal representative, estate,
heirs, beneficiaries, or any other person claiming by, under or through
Employee, except as stated in such Sections.
5. . PROHIBITION ON ACCELERATION OF BENEFITS. Benefits paid pursuant tot
this Section 4 shall in no event be accelerated except as specifically set forth
herein.
6. INVENTIONS. If any at time during the term of Employee's employment,
Employee shall, either alone or with others, make, devise, create, invent or
discover any inventions, improvements, modifications, developments, ideas,
products, property, formulas, know-how, designs, models, processes, prototypes,
sketches, drawings, plans or other matters whatsoever (whether or not capable of
being protected by letters of patent, registration, copyright, registered
trademark, service marks or other protection) which, in any manner, relate to,
arise out of, or are in connection with the present or future business prospects
or activities of Employer relative to the medical clinic business conducted by
Employer including retail store walk-in clinics, corporate relationships, and
strategic alliances with health systems, providers and others (collectively
"Inventions"), all such Inventions shall immediately be and remain the sole and
exclusive property of Employer and Employee shall immediately and confidentially
communicate a description of the Invention to Employer and to no other party at
any time, and if Employer so desires, Employee shall execute all documents and
instruments and do all things as may be requested by Employer in order to
forever vest all right, title and interest in such
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Invention solely in Employer and to obtain such letters of patent, copyrights,
registrations or other protections as Employer may, from time to time, desire.
7. CONFIDENTIALITY. Employee acknowledges and agrees that at all times
during and following the termination of employment with Employer under any
circumstances, Employee shall not use or disclose (i) any information, knowledge
or data relating in any way to the business, financial condition, sales, public
and private sources of financing, sales, customers, operations, suppliers,
products, services, Inventions, business relationships, manufacturing,
technologies or services of Employer, or (ii) any other proprietary or
confidential information, knowledge, data or details of the past, present or
future business affairs or practices of Employer (items (i) and (ii) are
hereafter referred to as "Confidential Information"), except Employee may use
any such Confidential Information provided to Employee as necessary solely
during the term of Employee's employment for the sole purpose of carrying out
Employee's duties hereunder for Employer's benefit provided Employee takes
adequate measures to protect the confidentiality thereof. Employee covenants and
agrees that (i) the use and disclosure restrictions applicable to Confidential
Information shall also apply to all documents or other materials containing any
Confidential Information ("Confidential Materials"), (ii) all Confidential
Materials are and shall remain at all times the sole exclusive property of
Employer and (iii) upon termination of employment, Employee shall promptly
return all Confidential Materials, and all copies and extracts thereof, to
Employer and at no time shall any Confidential Materials be used, copied,
published, circulated or disclosed, in any manner whatsoever, except as
specifically authorized herein other otherwise in writing by Employer. The term
"Confidential Information" does not include information which (i) is or becomes
generally available to the public other than by breach of this provision, (ii)
the Employee learns from a third party who is not under an obligation of
confidence to the Employer or a client of the Employer, or (iii) that the
Employer becomes legally obligated to disclose.
8. COVENANT-NOT-TO-COMPETE. Employee covenants and agrees that during the
term of employment and for the two (2) year period following the resignation by
Employee or termination of employment for cause or the one (1) year period
following a termination without cause, due to disability, or for good reason
(the "Restricted Period"), Employee shall not, within the greater of any State
or Territory of the United States or a 50 mile radius of any location of the
Employer or its affiliates at which Employee worked or for which Employee had
managerial or other executive responsibility while employed by Employer
(collectively the "Restricted Area"), in any manner, directly or indirectly,
through intermediaries or other persons or entities, either as owner,
shareholder, director, officer, manager, member, agent, consultant, creditor,
representative, investor, partner, employee, or on behalf of any other person or
entity, or in any other capacity whatsoever (excepting Employee's passive
ownership of less than 5% of the securities of a publicly traded entity) (i)
engage in, assist, provide capital, services, advice or information to, or in
any manner whatsoever become associated with any business or enterprise that
offers products or services competitive with any business conducted by the
Employer or its affiliates, (ii) contact for any business purpose, solicit or
attempt to solicit any supplier, customer, agent, representative or employee of
Employer or its affiliates, or otherwise interfere with or attempt in any manner
to disrupt any relationship or agreement between Employer or its affiliates and
any of its customers, employees, agents, representatives or others doing
business with Employer or its affiliates, or (iii) compete with Employer or its
affiliates ("Restricted Activities"), provided that during the Restricted
Period, nothing herein shall prohibit Employee
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from engaging in any aspect of pharmacy business including specialty, mail
service, retail, benefits administration and the like. Employee agrees that any
Restricted Activities outside the Restricted Area with respect to or directly or
indirectly relating to any portion of the Restricted Area shall be deemed
conducted within the Restricted Area and prohibited hereby. As used herein,
"affiliates" shall include Employer's affiliated agencies and direct or indirect
subsidiaries or other business ventures, and shall further include Arcadia
Resources, Inc. ("Arcadia"), its subsidiaries and affiliated agencies thereof,
provided that the "business" of Arcadia, its subsidiaries and affiliated
agencies thereof shall be understood to mean the business of such entities as
conducted as of the date of this Agreement. It is further agreed that the
"business" of Employer shall be understood to mean and include Employer's
business relative to medical clinics in various settings including retail store,
corporate relationships, and strategic alliances with health systems and other
providers, and such other businesses as Employer establishes through the Term of
employment. Employee acknowledges and agrees that the legal consideration for
Employee's agreement to Sections 6, 7, 8 and 9 of this Agreement include
Employee's initial or continued employment hereunder, any equity compensation
which Employer agrees to award or cause to be awarded to Employee, and
Employer's agreement to pay severance compensation in the circumstances
described herein, and that Sections 6, 7, 8 and 9 of this Agreement shall be
enforceable by Employer's successors and assigns.
9. ENFORCEABILITY. Employee expressly agrees and acknowledges that a loss
arising from a breach of any provision under Sections 6, 7, and 8 may not be
reasonably and equitably compensated by money damages. Therefore, Employee
agrees that in a case of any such breach, Employer shall be entitled to
injunctive and/or other extraordinary relief in order to prevent Employee from
engaging in any of the foregoing prohibited activities, which relief shall be
cumulative and in addition to any and all other additional remedies to which
Employer may be entitled to at law or equity. In the event that any court of
competent jurisdiction shall determine that any part or all of the provisions of
Sections 6, 7, and 8 are unenforceable or invalid due to the scope of the
activities restrained, the geographical extent of the restraints imposed, the
duration of the restraints imposed, or otherwise, the parties hereby expressly
intend, agree and stipulate that under such circumstances, the provisions of
Sections 6, 7, and 8 shall be enforceable to the fullest extent and scope
permitted by law and that the parties shall be bound by any judicial
modifications to the provisions therein which said court of competent
jurisdiction may make in order to carry out the intentions of the parties as
provided herein.
10. GOVERNING LAW AND ARBITRATION. This Agreement and all disputes arising
out of Employee's employment shall be governed by and construed in accordance
with the laws of the State of Florida, notwithstanding the fact that either
party hereto is or may hereafter become domiciled or located in a different
state. Any dispute, controversy or claim arising out of or relating to this
Agreement or Employee's employment, whether arising in contract, tort or
otherwise, including all claims assertable under any federal or state law
prohibiting discrimination in employment, shall be resolved at arbitration in
accordance with the rules of the American Arbitration Association, except for
any equitable or injunctive relief sought by Employer under this Agreement and
any claims for workers' compensation benefits or compensation and any claims for
unemployment compensation benefits. There shall be a single, neutral arbitrator.
The arbitration shall be held at a location within Xxxxxxx County, Florida, and
Employer agrees to pay Employee's reasonable travel expenses incurred in
connection therewith. The parties hereto agree that any arbitration award
rendered on any claim submitted to arbitration
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shall be final and binding upon the parties and not subject to appeal and that
judgment may be entered upon any arbitration award by any circuit court located
in Florida or by any other court of competent jurisdiction. The parties hereto
agree that the expenses of any arbitration (including the administrative charges
of the American Arbitration Association, as well as the fees and expenses paid
to the arbitrator selected to hear the case) shall be borne equally by the
parties to the proceeding, provided that each party shall bear its own attorneys
fees and cost of its own experts, evidence and the like. Employee acknowledges
and agrees that by making this agreement to submit all claims to binding
arbitration, Employee hereby waives the right to litigate in a court of law, and
to trial by jury if applicable, all claims against Employer, including all
claims assertable under any federal or state law prohibiting discrimination in
employment, except for any claims for workers' compensation benefits or
compensation and any claims for unemployment compensation benefits. Notice of
the demand for arbitration relating to any dispute or claim related to or
alleged to have arisen during the Term of employment shall be given in writing
to the other party to this Agreement no later than the expiration of six (6)
months following the expiration or termination of the Term, and as to all other
disputes or claims within six (6) months from the date the party asserting the
claim should reasonably have been aware of the same but in no event later than
the period specified by the applicable statute of limitations period. The
failure to give such notice shall operate to then bar any action, liability and
damages arising from or related to such alleged dispute or claim, with the same
force and effect as if the applicable statute of limitations had expired.
11. WAIVER OF BREACH. The waiver of breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power hereby granted to any party
hereto or allowed it by law shall be cumulative and not exclusive of any other.
12. SEVERABILITY. If any of the provisions of this Agreement or the
application thereof to any party under any circumstances is adjudicated to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement or the application thereof.
13. INTERPRETATION OF AGREEMENT. Where appropriate in this Agreement, words
used in the singular shall include the plural, and words used in the masculine
shall include the feminine and neuter. All headings that are used in this
Agreement are for the convenience of the reader only and shall not be used to
limit or construe any of the provisions hereof.
14. SURVIVAL OF PROVISIONS. The obligations of Employee under Sections 6,
7, 8 and 9 of this Agreement are continuing and shall survive the termination of
Employee's employment under any circumstances whatsoever.
15. AMENDMENT OF AGREEMENT. The terms and provisions of this Agreement may
be altered or amended in any of their provisions only by the signed written
agreement of the parties hereto.
16. SUCCESSORS. The Agreement shall inure to the benefit of Employer and
its successors and assigns, including but not limited to the provisions of
Sections 6, 7, 8 and 9, but may not be assigned or delegated by Employee as it
requires Employee's personal services.
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17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all other previous or contemporaneous communications, term sheets,
representations, understandings, agreements, negotiations and discussions,
either oral or written, between the parties. The parties acknowledge and agree
that there are no prior or contemporaneous written or oral agreements,
understandings, or representations, directly or indirectly related to this
Agreement that are not set forth herein.
18. COUNTERPART/FACSIMILE SIGNATURES. This Agreement may be executed in two
or more counterparts and by facsimile signature, each of which shall be deemed
an original, and all of which together shall constitute one and the same
Agreement.
19. NOTICES. All notices sent or required to be sent hereunder shall be
sent by facsimile, or by overnight courier or by registered or certified mail,
postage prepaid, addressed as follows:
To Employer: Chairman of the Board
Care Clinic, Inc.
000 0xx Xxxxxx Xxxxx, Xxxxx 0
Xxxxxx, XX 00000
(000) 000-0000
Fax: (000) 000-0000
To Employee: At the address designated below
or to such address of which notice as aforesaid has previously been given, and
shall be deemed to have been given when so mailed.
20. IRS SECTION 409A COMPLIANCE. Notwithstanding anything herein to the
contrary, to the extent any payment under any provision of this Agreement shall
be required to be delayed for a period of six months following the effective
date of termination of employment to comply with the "specified employee" rules
of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"),
it shall be so delayed (but not more than is required to comply with such
rules). The parties hereto acknowledge that in addition to any delay required
hereunder, it may be desirable, in view of regulations or other guidance issued
by the IRS under Section 409A of the Code, to amend provisions of the Agreement
to avoid the acceleration of tax or the imposition of additional tax or
penalties under Section 409A of the Code and that the Employer will not
unreasonably withhold its consent to any such amendments which in its
determination are (i) feasible and necessary to avoid adverse tax consequences
under Section 409A of the Code for Employee, and (ii) not adverse to the
interests of the Employer.
EMPLOYEE SPECIFIC INFORMATION
Employee Xxxx X. Xxxxxx, M.D.
Effective Date of Agreement September 26, 2006
Page 15 of 18
Position President and Chief Executive Officer,
Care Clinic, Inc.
Annual Base Salary $250,000.00 per annum
Employee Mailing Address
The parties have executed this Agreement effective as of the Effective
Date.
----------------------------------------
EMPLOYEE SIGNATURE
ACCEPTED BY EMPLOYER:
CARE CLINIC, INC., a Delaware corporation
By:
---------------------------------
Xxxx X. Xxxxxxx, XX
Its: Chairman of the Board
ARCADIA RESOURCES, INC.,
a Nevada corporation, which joins in the
execution of this Agreement solely for
purposes of Section 3(I) of this Agreement
By:
---------------------------------
Its:
--------------------------------
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ADDENDUM
CARE CLINIC, INC. MANAGEMENT BY OBJECTIVES ("MBO") GOALS
SEPTEMBER 1, 2006 THROUGH MARCH 31, 2007
1) Raise capital in an amount determined by Employer which is required for
Care Clinic to open clinics in 300 locations by end of 2009
2) Open clinics in cumulative total of 80 locations
3) Completely define business and operational models for all three clinic
types, SOP's, manuals, business development pipelines, medical oversight,
compliance, etc., acceptable to Employer
APRIL 1, 2007 THROUGH MARCH 31, 2008
1) Open clinics in cumulative total of 120 locations
2) Revenue target to be agreed upon in writing between Employer and Employee
3) EBITDA target to be agreed upon in writing between Employer and Employee
4) Operating margin target to be agreed upon in writing between Employer and
Employee for stores open greater than 12 months
APRIL 1, 2008 THROUGH MARCH 31, 2009
1) Open clinics in cumulative total of 220 locations
2) Revenue target to be agreed upon in writing between Employer and Employee
3) EBITDA target to be agreed upon in writing between Employer and Employee
4) Operating margin target to be agreed upon in writing between Employer and
Employee for stores open greater than 12 months
APRIL 1, 2009 THROUGH MARCH 31, 2010
1) Open clinics in cumulative total of 321 locations
2) Revenue target to be agreed upon in writing between Employer and Employee
3) EBITDA target to be agreed upon in writing between Employer and Employee
4) Operating margin target to be agreed upon in writing between Employer and
Employee for stores open greater than 12 months
OTHER
All goals and objectives specified herein are subject to approval by the
Arcadia Resources, Inc. The assessment of achievement or non-achievement of each
annual MBO Goal
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shall be determined by Employer within 45 days of the end of each fiscal quarter
or within such additional time as Employer may reasonably require. All terms and
conditions of this Addendum are subject to all terms and conditions of
Employee's Employment Agreement and as the same may be amended from time to time
in writing mutually agreed to by Employer and Employee.
ACCEPTED AND AGREED:
------------------------------------- ----------------------------------------
Employee For Care Clinic, Inc.
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