AMENDMENT NO. 2
TO THE
EMPLOYMENT AGREEMENT
BY AND BETWEEN
NEIGHBORCARE, INC. (THE "COMPANY")
AND
XXXXXX X. XXXXX ("EXECUTIVE")
WHEREAS, Executive is currently employed by the Company;
WHEREAS, the terms of Executive's employment are currently governed by
that certain amended and restated employment agreement, amended and restated as
of December 9, 2003 and amended as of February 11, 2005 (the "Employment
Agreement"); and
WHEREAS, Executive could have Good Reason pursuant to the terms of the
Employment Agreement to terminate his employment with the Company upon a Change
of Control that results in the Company becoming a subsidiary of another entity
and no longer publicly traded; and
WHEREAS, in the event of a Change of Control, it is likely to be in the
interest of the Company for Executive to be obligated to continue his employment
with the Company for a period of at least six months following such Change of
Control, to assist with transition and for other reasons; and
WHEREAS, the Company and Executive wish to amend the terms of the
Employment Agreement effective as of a Change in Control of the Company (as
currently defined in Section 1.04 of the NeighborCare, Inc. Severance Pay Plan),
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereby agree as follows:
1. Section 4(d) of the Employment Agreement is hereby amended by adding
the following paragraph at the end thereof: "Notwithstanding the foregoing,
Executive agrees not to
2
exercise Executive's right to resign for Good Reason pursuant to Section
4(d)(iv) hereof until the end of the six (6) month period commencing on the
effective date of a Change of Control, so long as Executive continues to be
employed in the same position and title at the Company with substantially
similar responsibilities and duties during such six-month period (taking into
account that the Company may be a subsidiary and no longer publicly traded
following such Change of Control)."
2. Section 8(b) of the Employment Agreement is hereby amended by adding
the following paragraph at the end thereof: "Notwithstanding the foregoing,
Executive shall not be prohibited from undertaking the actions referred to in
Sections 8(b)(i) and 8(b)(iii) above if such actions are on behalf of a company
that is only competitive with the retail pharmacy business of the Company (as
such retail pharmacy business of the Company is in effect as of immediately
prior to a Change of Control)."
3. Except as provided in this Amendment No. 2, the terms and conditions
of the Employment Agreement shall remain unchanged.
4. This Amendment No. 2 shall be of no further force or effect if a
Change in Control of the Company does not occur on or prior to December 31,
2005.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
/s/ Xxxxxx X. Xxxxx NeighborCare, Inc.
--------------------------
Xxxxxx X. Xxxxx
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
July 12, 2005 Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President, Human
Resources
July 12, 2005
