Exhibit 10.3
THIRD AMENDED EMPLOYMENT
AGREEMENT
THIRD AMENDED EMPLOYMENT AGREEMENT
dated as of October 1, 2009, by and between LINCARE
HOLDINGS INC. , a Delaware corporation (“Lincare”
or “Company”), and PAUL G. GABOS
(“Executive”).
W I T N E S S E T
H:
WHEREAS, Executive is employed by
Company and is subject to the terms of that certain Employment
Agreement by and between Executive and Company dated
November 15, 2004, as amended January 23, 2007 and
December 28, 2007 (the “2004 Agreement (as
amended)”);
WHEREAS, Executive’s Initial
Employment Term (as defined in the 2004 Agreement (as amended))
will expire on December 31, 2009;
WHEREAS, Company and Executive
desire to amend the 2004 Agreement (as amended) to provide for the
Initial Employment Term to be extended through December 31,
2012 (unless earlier terminated pursuant to the terms of this
Agreement) and Company desires to induce Executive to continue in
the employ of Company under the terms of this Third Amended
Employment Agreement; and
WHEREAS, Executive is willing to
accept such continued employment with Company on a full-time basis,
all in accordance with the terms and conditions set forth
below.
NOW, THEREFORE, for and in
consideration of the premises hereof and the mutual covenants
contained herein, the parties hereto do hereby covenant and agree
as follows:
1. Employment .
(a) Company hereby agrees to
continue employing Executive, and Executive hereby agrees to
continue his employment with Company, for the period set forth in
Section 2 hereof, all upon the terms and conditions
hereinafter set forth.
(b) Executive affirms and represents
that he is under no obligation to any former employer or other
party which is in any way inconsistent with, or which imposes any
restriction upon, Executive’s acceptance of employment
hereunder with Company, the employment of Executive by Company, or
Executive’s undertakings under this Agreement.
2. Term of Employment .
Unless earlier terminated as hereinafter provided, the initial term
of Executive’s employment under this Agreement shall be for a
period beginning on January 1, 2005 and ending on
December 31, 2012 (such period from January 1, 2005 until
December 31, 2012 or, if Executive’s employment
hereunder is earlier terminated, such shorter period, being
hereinafter called the “Initial Employment Term”). In
the event that Executive continues in the full-time employ of
Company after the end of the Initial Employment Term (it
being expressly understood and agreed that
Company has no obligation to continue employing Executive, and
Executive has no obligation to continue being employed by Company,
whether or not on a full-time basis, after expiration of the
Initial Employment Term), then, unless otherwise expressly agreed
to by Executive and Company in writing, Executive’s continued
employment with Company shall, notwithstanding anything to the
contrary expressed or implied herein, continue to be subject to the
terms and conditions of this Agreement. As used in this Agreement,
the term “Employment Term” shall mean the period
beginning on January 1, 2005 and ending on the date of
Executive’s cessation of employment with Company, whether
such date is before, on or after the expiration of the Initial
Employment Term.
3. Duties . Executive shall
be employed as the Chief Financial Officer and Secretary of
Company, shall faithfully and competently perform such duties as
are specified by the By-laws of Company and shall also perform and
discharge such other reasonable employment duties and
responsibilities as the Board of Directors of Company (the
“Board”) may from time to time prescribe. Executive
shall perform his duties at such places and times as the Board may
reasonably prescribe. Except as may be approved herein or otherwise
approved in advance by Company, and except during vacation periods
and reasonable periods of absence due to sickness, personal injury
or other disability, Executive shall devote his full time
throughout the Employment Term to the services required of him
hereunder and shall render his services exclusively to Company
during the Employment Term. During the Employment Term, Executive
shall use his best efforts, judgment and energy to improve and
advance the business and interests of Company in a manner
consistent with the duties of his position. Notwithstanding
anything herein to the contrary, the provisions of this
Section 3 shall not limit or restrict Executive from
(i) serving as an outside director for one (1) or more
corporate entities not affiliated with Company; (ii) serving
as an officer or director of or otherwise participating in
educational, welfare, social, religious and civic organizations;
(iii) delivering lectures or fulfilling speaking engagements;
or (iv) managing personal investments, in each case so long as
such activities do not interfere with Executive’s ability to
perform his obligations hereunder.
4. Compensation .
(a) As compensation for the complete
and satisfactory performance by Executive of the services to be
performed by Executive hereunder during the Employment Term
commencing as of January 1, 2009, Company shall pay Executive
a base salary at the annual rate equal to $448,408.00,
Executive’s 2009 Salary (as computed in accordance with the
2004 Agreement (as amended)) (said amount, together with any
increases thereto during the Employment Term, being hereinafter
referred to as the “Salary”). Any Salary payable
hereunder shall be paid in regular intervals in accordance with
Company’s payroll practices. The Salary payable to Executive
pursuant to this Section 4(a) shall be increased annually as
of January 1, 2010, and each January 1 thereafter during
the Employment Term, for the twelve (12) month period then
commencing, by an amount equal to: (1) the annual percentage
increase in the Consumer Price Index for All Urban Consumers, All
Items, for the most recent twelve (12) month period for which
such figures are then available as reported in the Monthly Labor
Review published by the Bureau of Labor Statistics of the U.S.
Department of Labor or (ii) such higher amount as may be
determined from time to time by the Board (or an authorized
committee thereof) in its sole discretion.
(b) In addition to Salary, Company
shall also pay bonus compensation (“Bonus”) to
Executive in respect of each calendar year (or applicable portion
thereof) during the Employment Term. Such Bonus for any full
calendar year will be an amount equal to the lesser of 200% of
Salary or: (i) the percentage of Salary set forth in the Table
below which corresponds to the percentage by which Company’s
fully diluted earnings per share (“EPS”) in respect of
such calendar year compares with the projected EPS of Company as
set forth in the annual business plan (the “Business Plan
EPS”) prepared in advance by Company and approved by the
Board; multiplied by (ii) Executive’s
Salary for such calendar year.
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|
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Fully Diluted EPS as a % Of Business Plan
EPS
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|
|
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0-99%
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0%
|
|
100%
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|
80%
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|
101%
|
|
90%
|
|
102%
|
|
100%
|
|
103%
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|
110%
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104%
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120%
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105%
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130%
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> 105%
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130% + an
additional 10% for each full percentage point of EPS achieved over
Business Plan EPS
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In the event that the Employment
Term ends at any time other than on December 31 of any year,
Executive’s Bonus in respect of such calendar year shall be
prorated, and shall be an amount equal to: (i) the percentage
set forth on the Table above which corresponds to the percentage by
which Company’s year-to-date fully diluted EPS (as determined
by the then-most recently announced fully diluted EPS of Company)
compares with the figure obtained by multiplying the Business Plan
EPS by a fraction, the numerator of which shall be the number of
completed fiscal quarters in such calendar year for which fully
diluted EPS of Company have been announced and the denominator of
which shall be four (4); multiplied by
(ii) Executive’s Salary for such calendar year;
multiplied by (iii) a fraction, the numerator of
which shall be the number of full calendar months included in the
Employment Term for the then current calendar year and the
denominator of which shall be twelve (12).
Notwithstanding the foregoing
provisions of this Section 4(b), the Board (or an authorized
committee thereof) shall have the discretion to adjust upward or
downward the Business Plan EPS to account equitably for:
(i) any extraordinary charges; (ii) any unusual
non-recurring items; (iii) changes after the date hereof in
accounting principles required under generally accepted accounting
principles; or (iv) any unanticipated events or occurrences;
which events impacted Company’s fully diluted EPS in respect
of any such applicable period or comparable prior year
period.
Nothing contained herein and no
action taken in respect of any Bonus (or otherwise in respect of
this Section 4(b)) shall create or be construed to create a
trust of any kind. Executive’s right to receive any Bonus
pursuant to this Section 4(b) shall be no greater than the
right of an unsecured general creditor of Company to receive
payment from Company. All Bonuses under this Section 4(b)
shall be paid from the general funds of Company, and no special or
separate fund shall be established, and no segregation of assets
shall be made, to assure payment of any Bonuses
hereunder.
(c) The payment of any Salary, Bonus
or other amounts hereunder shall be subject to applicable
withholding and payroll taxes, and such other deductions as may be
required under Company’s employee benefit plans. Payment of
Executive’s Bonus shall be made by March 15 of the year
following the year to which the Bonus relates.
5. Benefits . During the
Employment Term, Executive shall:
(a) be eligible to participate in
all employee fringe benefits and any pension and/or profit sharing
plans that may be provided by Company for its key executive
employees in accordance with the provisions of any such plans, as
same may be in effect on and after the date hereof;
(b) be eligible to participate in
such additional perquisites and fringe benefits as may be approved
from time to time by the Board (or any committee thereof) for
Company’s key executives;
(c) be eligible to participate in
any medical and health plans or other employee welfare benefit
plans that may be provided by Company for its key executive
employees in accordance with the provisions of any such plans, as
same may be in effect on and after the date hereof;
(d) be entitled to annual paid
vacation in accordance with Company policy that may be applicable
on and after the date hereof to key executive employees;
(e) be entitled to sick leave, sick
pay and disability benefits in accordance with any Company policy
that may be applicable on and after the date hereof to key
executive employees;
(f) be entitled to reimbursement for
all reasonable and necessary out-of-pocket living and travel
expenses incurred by Executive while away from his usual place of
business in the performance of his duties hereunder in accordance
with Company’s policies applicable on and after the date
hereof in respect thereto. Notwithstanding the foregoing,
(i) the expenses eligible for reimbursement may not affect the
expenses eligible for reimbursement in any other taxable year,
(ii) such reimbursement must be made on or before the last day
of the year following the year in which the expenses was incurred,
and (iii) the right to reimbursement is not subject to
liquidation or exchange for another benefit; and
(g) with respect to each year in the
Term beginning on or after January 1, 2010, be entitled to a
cash allowance of $7,000 for financial planning services (to the
extent such allowance is not used during such year, such allowance
amount shall be forfeited).
6. Inventions and Confidential
Information . Executive hereby covenants, agrees and
acknowledges as follows:
(a) Company is engaged in a
continuous program of research, design, development, production,
marketing and servicing with respect to its business and that as
part of Executive’s employment by Company, Executive is (or
may be) expected to make new contributions and inventions of value
to Company.
(b) Executive’s employment
hereunder creates a relationship of confidence and trust between
Executive and Company with respect to certain information
pertaining to the business of Company and its Affiliates (as
hereinafter defined) or pertaining to the business of any client or
customer of Company or its Affiliates which may be made known to
Executive by Company or any of its Affiliates or by any client or
customer of Company or any of its Affiliates or learned by
Executive during the course of his employment.
(c) Company possesses and will
continue to possess information that has been created, discovered
or developed by, or otherwise become known to it (including,
without limitation, information created, discovered, developed or
made known by Executive during the period of or arising out of his
employment with Company) or in which property rights have been or
may be assigned or otherwise conveyed to Company, which information
has commercial value in the business in which Company is engaged
and is treated by Company as confidential.
(d) Any and all inventions,
products, discoveries, improvements, processes, manufacturing,
marketing and service methods or techniques, formulae, designs,
styles, specifications, data bases, computer programs (whether in
source code or object code), know-how, strategies and data, whether
or not patentable or registrable under copyright or similar
statutes, made, developed or created by Executive (whether at the
request or suggestion of Company, any of its Affiliates, or
otherwise, whether alone or in conjunction with others, and whether
during regular hours of work or otherwise) during the period of his
employment by Company (collectively, hereinafter referred to as
“Inventions”), which may pertain to the business,
products, or processes of Company or any of its Affiliates, will be
promptly and fully disclosed by Executive to an appropriate
executive officer of Company (other than Executive) and shall be
Company’s exclusive property, and Executive will promptly
execute and/or deliver to an appropriate executive officer of
Company (other than Executive) without any additional compensation
therefor, all papers, drawings, models, data, documents and other
material pertaining to or in any way relating to any Inventions
made, developed or created by him as aforesaid. For the purposes of
this Agreement, the term “Affiliate” or
“Affiliates” of Company shall mean any corporation or
other entity which is controlled, directly or indirectly, by
Company. As used in the preceding sentence, the word
“control” shall mean, with respect to any entity, the
power to vote or direct the voting of at least 50% of the voting
equity interests in such entity.
(e) Executive will keep confidential
and will hold for Company’s sole benefit any Invention which
is to be the exclusive property of Company under this
Section 6 for which no patent, copyright, trademark or other
right or protection is issued.
(f) Executive also agrees that he
will not without the prior written consent of an appropriate
executive officer of Company (other than Executive) use for his
benefit or disclose at any time during his employment by Company,
or thereafter, except to the extent
required by the performance by him of his duties
as an executive of Company, any information obtained or developed
by him while in the employ of Company with respect to any
Inventions or with respect to any customers, clients, suppliers,
products, employees, financial affairs, or methods of design,
distribution, marketing, service, procurement or manufacture of
Company or any of its Affiliates, or any confidential matter,
except information which at the time is generally known to the
public other than as a result of disclosure by him not permitted
hereunder, or if such information is required to be disclosed under
court order or other applicable law.
(g) Executive acknowledges and
agrees that a remedy at law for any breach or threatened breach of
the provisions of this Section 6 would be inadequate and,
therefore, agrees that Company and its Affiliates shall be entitled
to injunctive relief in addition to any other available rights and
remedies in case of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as
prohibiting Company or any of its Affiliates from pursuing any
other rights and remedies available for any such breach or
threatened breach.
(h) Executive agrees that