EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT made the 31st day of October, 1997, by and between COMPSCRIPT, INC., a
Florida corporation, with its principal office at 1225 N.W. Broken Sound
Parkway, Suite A, Boca Raton, Florida 33487 (the "Company:) and XXXX X. XXXXX,
whose residence address is 0000 Xxxxxxx Xxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000
(the "Executive").
The Company and the Executive hereby agree as follows with respect to the
Executive's employment with the company:
1. EMPLOYMENT. The Company shall employ the Executive and the Executive shall be
employed with the Company, on the terms and conditions hereafter set forth,
commencing October 1, 1997. During his employment hereunder, the Executive shall
be the Company's Chief Financial Officer, under the direction of the Chief
Executive Officer. The Executive's principal place of employment shall be Boca
Raton, Florida.
2. EXCLUSIVE EFFORTS. The Executive shall devote his best efforts, skills and
attention exclusively to the business and affairs of the Company, shall serve
the Company faithfully and competently and shall, at all times, act in the
Company's best interest. The services to be rendered by Executive during the
Employment Period shall be the normal duties of a person employed as a Chief
Financial Officer by a corporation in the Company's business, subject at all
times to the direction and control of the Company's Chief Executive Officer.
During his employment by the Company, the Executive shall not, either directly
or indirectly, have any interest in or involvement with any person, firm or
corporation the business of which is competitive with any aspect of the business
of the Company; provided, however, that nothing herein shall be construed to
prevent Executive from investing his personal assets in other entities which do
not compete with the Company.
3. BASE COMPENSATIONS.
(a) The Company shall pay to the Executive, and the Executive agrees to accept,
minimum base compensation of One Hundred Thirty-Five Thousand Dollars
($135,000.00) per year, which base compensation shall increase to One Hundred
Fifty Thousand Dollars ($150,000.00) commencing July 1, 1998.
(b) The compensation provided for in Paragraph 3(a) shall be in addition to any
pension or retirement benefits, life insurance, hospital and medical,
disability, stock options, and other benefits made generally available by the
Company, in its sole discretion, if any, to its executive offices and other
employees.
4. BONUS COMPENSATION.
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The Executive shall be entitled to receive discretionary bonuses from time to
time at the discretion of the Chief Executive Officer, relating to the
Executive's role in acquisitions, financing, equity transactions, assistance to
operations, profitability of the Company and enhancement of shareholder value.
5. STOCK OPTIONS.
At the discretion of the Chief Executive Officer and the Compensation Committee,
Executive shall receive non-qualified stock options, which options vest
immediately at an exercise price of market value at date of grant. Date of grant
shall be consistent with date of grant of other executives of the Company.
6. BENEFIT PLANS. The Executive shall be entitled to participate, to the extent
eligible, in medical, dental, hospital, group life insurance and other fringe
benefit programs from time to time made available to the Company's executives.
The Company will also reimburse the Executive for all professional, education
and license fees related to his Certified Public Accountant certificate.
7. BUSINESS EXPENSE. The Executive shall be reimbursed for all usual expenses
incurred on behalf of the Company, in accordance with Company practices and
procedures, provided that:
(a) Each such expenditure is of a nature qualifying it as a proper deduction on
the federal and state income tax returns of the Company as a business expense
and not as deductible compensation to Executive; and
(b) Executive furnished the Company with adequate documentary evidence required
by federal and state statutes and regulations for the substantiation of such
expenditures as deductible business expenses of the Company and not as
deductible compensation to Executive.
Executive agrees that, if at any time, any payment made to Executive by the
Company as a business expense reimbursement shall be disallowed in whole or in
part as a deductible expense to the Company by the appropriate taxing
authorities, Executive shall reimburse the Company to the full extent of such
disallowance.
8. AUTOMOBILE EXPENSE. During the Employment period, Executive shall be entitled
to reimbursement by the Company for Executive's monthly automobile allowance in
the amount of $600 per month, commencing October 1, 1997. The Company will also
provide the Executive with a corporate gasoline card to be used for corporate
purposes.
9. VACATION. Employee shall be entitled to a paid vacation of three (3) calendar
weeks per year for the duration of the Employment Period. Any unused vacation
time for each calendar year of the Employment Period shall be forfeited by
Executive if not used during such year. Executive shall also be entitled to all
paid holidays made generally available by the Company to its executive officers.
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10. DEATH OR DISABILITY. Notwithstanding anything to the contrary contained in
Paragraph 1 above, if, while the Executive is employed by the Company, he dies
or suffers a physical or mental disability which prevents him, for a period of
three (3) consecutive months, from performing his duties hereunder in a
satisfactory manner, his employment shall terminate effective the date of death
or the end of such three (3) month period, as applicable. In the event of such
termination, the Executive's compensation and fringe benefits (to the extent
practicable) shall be continued for a period of six (6) months after such
termination, and shall be paid to the Executive if he is alive, or to his
spouse, if deceased.
11. TERMINATION.
(a) This Agreement may be immediately terminated by the Company at anytime
during the Employment Period for cause.
(b) This Agreement may be terminated by either the Company, without cause, or
the Executive upon sixty (30) days written notice to the other party.
(c) In the event of termination by the Company for cause or at the election of
the Executive, the Company shall be obligated only to continue to pay to
Executive his compensation, including any bonus compensation to which Executive
may be entitled to pursuant to paragraph 4 hereof, earned up to the date of
termination under Paragraph 3. In addition, Company shall pay any vested
benefits, if any, owed to Executive under any plan provided for Executive under
Paragraph 6 hereof in accordance with the terms of such plan as in effect on the
date of termination of employment under this Paragraph 11.
(d) In the event of termination by the Company without cause, the Company shall
be obligated to continue to pay Executive his compensation earned up to the date
of termination, including any bonus compensation to which executive may be
entitled to pursuant to Paragraph 4 hereof, plus continued compensation for
twelve months, at the times and in the manner as if such termination had not
occurred.
(e) For purpose of the Agreement, "cause" shall mean any act involving gross
negligence, gross misfeasance, gross malfeasance, willful misconduct, or breach
of any provision of this Agreement.
12. SUCCESSORS; BINDING AGREEMENT. The Company will require, at the option of
the Executive, any successor (whether direct or indirect, friendly or hostile,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to compensate the Executive for one
year (twelve months) of his base pay [as defined in Paragraph 3 (a)] plus any
other accrued bonuses (as defined in Paragraph 4) and reimbursable business
expenses (as defined in Paragraph 7) in a lump sum payment on date succession
occurs. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid.
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13. RESTRICTIVE COVENANTS.
(a) Executive recognizes that he has acquired knowledge of certain trade
secrets, information, data, know-how and knowledge (including, but not limited
to, trade secrets, information, date, know-how and knowledge relating to
customers, suppliers, sales market programs, costs, products, apparatus,
equipment, processes, manufacturing methods, compositions, designs, plans and
employees) belonging to, or relating to the affairs of the Company (collectively
referred to as "Trade Secrets"). Accordingly, during the Employment Period and
at all times thereafter, Executive agrees not to divulge, communicate, use to
the detriment of the Company or for the benefit of any other person or persons,
or misuse in any way, any Confidential Information or Trade Secrets relating to
the Company and its business, Executive acknowledges and agrees that any
information or data he has acquired on any of these matters or items was
received in confidence and as a fiduciary of the Company.
(b) At all times during the Employment Period and thereafter, Executive shall
not, directly or indirectly, induce, influence, combine or conspire with, or
attempt to induct, influence, combine or conspire with, any of the officers,
employees, or consultants of the Company to terminate their employment with or
compete against the Company or any future subsidiaries, parents or affiliates of
the Company in the business of wholesale distribution, exportation of
pharmaceuticals, and providing without limitation, support, durable medical
equipment sale or rental, laboratory testing, and services to the Long Term
Care, Institutional Care, and Alternate Care markets or provide mail service
pharmaceuticals and pharmacy benefits management for others (the "Business").
(c) Executive acknowledges that his services and responsibilities are unique in
character and are of particular significance to the Company, that the Company is
a competitive business with a worldwide market and Executive's continued and
exclusive service to the Company under this Agreement is of a high degree of
importance to the Company. Therefore, if Executive is either terminated for
cause or voluntarily terminates his employment with the Company, for an
additional period of one (1) year following the date Executive is terminated or
voluntarily terminates his employment with the Company (the "Noncompete
Period"), for any reason whatsoever, Executive shall not, directly or
indirectly, engage in the business, except as an employee or agent of the
Company, and shall not, directly or indirectly, as owner, partner, joint
venturer, employee, broker, agent, corporate officer, principal, licensor,
shareholder (unless as owner of no more than five percent (5%) of the issued and
outstanding capital stock of such entity if such stock is traded on a major
securities exchange or otherwise as a purely passive shareholder) or in any
other capacity whatsoever, engage in or have any connection with any business
which is competitive with the Business, and which operates anywhere in the
world. In the event Executive is terminated by the Company without cause prior
to the expiration of the Employment Period, the Noncompete Period shall be
modified such that it expires on the date of such involuntary termination.
(d) If, in any judicial proceeding, a court shall refuse to enforce any of the
covenants included in this Paragraph 13, then such enforceable covenant shall be
amended to relate
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to such lesser period or geographical area as shall be enforceable. In the event
the Company or Purchaser should bring any legal action or other proceeding
against Executive for enforcement of this Agreement, the calculation of the
Noncompete Period, if any, shall not include the period of time commencing with
the filing of legal action or other proceeding to enforce this Agreement through
the date of final judgment or final resolution, including all appeals, if any,
of such legal action or other proceeding unless the Company is receiving the
practical benefits of this Paragraph 13 during such time. The existence of any
claim or cause of action by Executive against the Company predicated on this
Agreement shall not constitute a defense to the enforcement by the Company of
these covenants.
(e) Executive hereby acknowledges that the restrictions on his activity as
contained in this Agreement are required for the Company's reasonable protection
and is a material inducement to the Company to enter into this Agreement.
Executive hereby agrees that in the event of the violation by him of any of the
provisions of this Agreement, the Company will be entitled to institute and
prosecute proceedings at law or in equity to obtain damages with respect to such
violation or to enforce the specific performance of this Agreement by Executive
or to enjoin Executive from engaging in any activity in violation hereof.
14. BINDING EFFECT. Except as herein otherwise provided, this Agreement shall
inure to the benefit of and shall be binding upon the parties hereto, their
personal representatives, successors, heirs and assigns.
15. SEVERABILITY. Invalidity or unenforceability of any provision hereof shall
in no way affect the validity or enforceability of any other provisions.
16. TERMINOLOGY. All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural and vice versa. Titles of Paragraphs are for
convenience only, and neither limit nor amplify the provisions of the Agreement
itself.
17. GOVERNING LAW. This Agreement shall be governed and construed in accordance
with the law of the State of Florida.
18. ENTIRE AGREEMENT. This Agreement contains the entire understanding between
the parties and may not be changed or modified except by an agreement in writing
signed by all the parties.
19. NOTICE. Any notice requiring or permitted to be delivered hereunder shall be
deemed to be delivered when deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed to
the parties at the addresses first stated herein, or to such other address as
either party hereto shall from time to time designate to the other party by
notice in writing as provided herein.
20. OTHER INSTRUMENTS. The parties hereby covenant and agree that they will
execute such other and further instruments and documents as are or may become
necessary or convenient to effectuate and carry out the terms of this Agreement.
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21. COUNTERPARTS. This Agreement may be executed in any number of counterparts
and each such counterpart shall for all purposes be deemed an original.
22. ASSIGNABILITY. This Agreement shall not be assigned by either party, except
with the written consent of the other.
23. ATTORNEYS' FEES. In any litigation arising out of this Agreement, the
prevailing party shall be entitled to all costs and expenses, including
reasonable attorneys' fees.
IN WITNESS WHEREOF, this Agreement has been duly signed by the Executive and on
behalf of the Company on the day and year first above written.
COMPSCRIPT, INC. EXECUTIVE
By: /S/ XXXXX X. XXXXX /S/ XXXX X. XXXXX
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Xxxxx X. Xxxxx Xxxx X. Xxxxx
Chief Executive Officer
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