Exhibit 10.1 - Employment Agreement with Scott R. Holtmyer


    Exhibit
      10.1

    
 

    EMPLOYMENT
      AGREEMENT

     

    This
      EMPLOYMENT AGREEMENT ("Agreement"),
      effective as of the 18th day of May, 2006 (the "Date
      of Employment"),
      is
      entered into by and between Park InfusionCare, L.P., a Texas limited
      partnership, with its principal place of business in Dallas, Dallas County,
      Texas ("Employer"),
      and
      Scott R. Holtmyer, a resident of Jefferson County, Texas ("Employee").
      

     

    W
      I T N E
      S S E T H:

     

    WHEREAS,
      Employer is a limited partnership which owns and operates an infusion pharmacy
      business whose principal office is located at 16250 Dallas Parkway, in the
      City
      of Dallas, Dallas County, Texas (the "Business");
      

     

    WHEREAS,
      Employer now desires to employ Employee as the Vice President in charge of
      all
      infusion pharmacy operations of Employer; and 

     

    WHEREAS,
      Employer desires to employ Employee, and Employee desires to be employed by
      Employer, upon the terms and conditions hereinafter set forth.

     

    NOW,
      THEREFORE,
      for and
      in consideration of the premises and the mutual promises, covenants, and
      agreements herein contained and other good and valuable consideration, the
      receipt and adequacy of which are hereby forever acknowledged and confessed,
      the
      parties hereto agree as follows: 

     

    ARTICLE
      I  

     

    EMPLOYMENT

     

    Employer
      hereby agrees to employ Employee, and Employee hereby agrees to serve Employer,
      as herein set forth, for the "Term
      of Employment"
      (as
      that term is hereinafter defined). 

     

    ARTICLE
      II  

     

    DUTIES
      OF EMPLOYEE

     

    During
      the Term of Employment, Employee shall, serve as Vice President of infusion
      pharmacy operations in charge of supervising all operations of the infusion
      pharmacy business of Employer. Employee will also, subject to the direction
      and
      instructions of the Board of Directors of Employer and the chief executive
      officer of Employer, satisfy the requirements and perform the functions and
      duties set forth in this Agreement. Such functions and duties shall include,
      without limitation: 

     

    
      	 	
              2.1

            	
              devoting
                Employee's full professional time, attention, and energy to the business
                of Employer as Employer shall reasonably determine will satisfactorily
                accomplish the purposes of this Agreement;


            


    

     

    
      	 	
              2.2

            	
              providing
                reasonable professional direction and supervision of the infusion
                pharmacy
                personnel of Employer, including providing Employer with advice and
                assistance in the hiring, evaluation, promotion, and firing of such
                personnel; 

            


    

     

    
      	 	
              2.3

            	
              assisting
                Employer in the development of policies and procedures for the infusion
                pharmacy business and keeping such business in compliance with all
                such
                policies and procedures; 

            


    

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

     

    
      	 	
              2.4

            	
              doing
                all things reasonably necessary or desirable to maintain and improve
                his
                skills as a manager; 

            


    

     

    
      	 	
              2.5

            	
              using
                Employee's reasonable efforts to promote and support the interests
                (business and otherwise) of Employer, including but not limited to
                participating as requested by Employer in marketing activities and
                efforts; 

            


    

     

    
      	 	
              2.6

            	
              assisting
                the Employer in marketing and developing marketing plans and procedures
                to
                expand sales of the products and services of the infusion pharmacy
                business to both existing and new
                customers;

            


    

     

    
      	 	
              2.7

            	
              keeping
                and maintaining (or causing to be kept and maintained) appropriate
                records
                relating to the Business of the Employer and attending to correspondence,
                reports, and other record keeping requirements associated with Employee's
                duties with Employer; 

            


    

     

    
      	 	
              2.8

            	
              taking
                reasonable efforts to see that the Employer complies with all state,
                federal, and local laws, rules, and regulations applicable to the
                Business
                of the Employer; 

            


    

     

    
      	 	
              2.9

            	
              complying
                in all respects with the rules, policies, and procedures of Employer;
                

            


    

     

    
      	 	
              2.10

            	
              abiding
                by any reasonable schedule of hours formulated by Employer;
                

            


    

     

    
      	 	
              2.11

            	
              at
                the request or with the consent of Employer, attending conventions
                and
                seminars, participating in professional societies the cost of which
                will
                be paid by Employer, and doing all things reasonably desirable to
                maintain
                and improve his professional skills;


            


    

     

    
      	 	
              2.12

            	
              cooperating
                with other employees and officers of Employer in all reasonable manners;
                and

            


    

     

    
      	 	
              2.13

            	
              performing
                in a diligent and timely manner such duties as set forth herein and
                such
                other duties as Employer and Employee may, from time to time, agree.
                

            




    Employee
      agrees to observe and comply with the reasonable rules and regulations of
      Employer and the Business as adopted from time to time. Employee shall not
      engage in any business or other activity that hinders in any way Employee's
      ability to serve as the Vice President of Infusion of the infusion pharmacy
      business of Employer. Employee shall perform his duties hereunder from offices
      located in the City of Beaumont, Jefferson County, Texas, but will travel on
      a
      regular basis to Houston, Dallas, San Antonio, and any other cities in which
      branches of the Business are located.

     

    
      
        
        

      

      
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    ARTICLE
      III  

     

    COMPENSATION
      AND PROFESSIONAL FEES

     

    3.1  Compensation
      During Term of Employment.
      As
      compensation for Employee's services hereunder during the Term of Employment,
      and in consideration of Employee's agreement contained herein, Employer shall
      pay Employee an annual base salary of $165,000.00 paid in accordance with
      Employer's normal pay schedules on a semi-monthly basis, with appropriate taxes
      and withholdings deducted therefrom as required of or by Employer. In addition,
      Employee shall receive a bonus ("EBITDA
      Bonus")
      each
      calendar year based on the earnings before federal income taxes, any state
      taxes
      based on income or receipts, depreciation and amortization of the Employer
      ("EBITDA").
      If
      EBITDA in any calendar year during the term of this Agreement is five percent
      (5.0%) or more but less than ten percent (10%) of the gross revenues of the
      Employer for such calendar year, Employer shall pay Employee a bonus equal
      to
      ten percent (10.0%) of Employee's base salary for such calendar year and if
      EBITDA for any calendar year during the term of this Agreement is equal to
      or
      more than ten percent (10%) of gross revenues of the Employer for such calendar
      year, Employer shall pay Employee a bonus equal to twenty percent (20%) of
      Employee's base salary for such calendar year. Such cash bonuses, if any, will
      be paid prior to March 31 of the year following each calendar year during
      the term of this Agreement. Notwithstanding the above, Employee shall only
      be
      entitled to such cash bonus if he is employed at the end of such calendar year
      and through the earlier of (i) the date the bonus is paid, or (ii) March 31
      of the year following the calendar year for which such bonus is calculated.
      

     

    3.2  Equity
      Bonus and Severance.
      The
      Employer and Employee agree that the current net value of the business of
      Employer is $3,600,000.00. Upon a Change of Control (as defined below) which
      occurs either (i) while Employee is an employee or (ii) within one
      hundred eighty (180) days after Employee's employment is terminated pursuant
      to
Section 4.2.5,
      then
      Employer shall pay to Employee twenty percent (20%) of the amount by which
      the
      total consideration received by Employer for sale or exchange of its assets
      or
      the equity owners of Employer receive for the sale or exchange of their equity
      ownership interest exceeds $3,600,000.00 (the "Equity
      Bonus").
      The
      Equity Bonus shall be paid by Employer to Employee within thirty (30) days
      after
      such Change of Control is effected. As used in this Article III
      the
      following definitions shall apply:

     

    (a)  "Change
      of Control"
      means,
      the occurrence at any time after the date hereof of (i) any Person or Group
      of
      Persons becoming for the first time the owner, directly or indirectly, of more
      than fifty percent (50%) of the total combined voting power of all classes
      of
      equity of the Employer, other than as a result of a transfer or series of
      transfers between Parent and/or one or more Subsidiaries and shall exclude
      any
      transfers of equity or changes in control of Parent; (ii) a merger or
      consolidation of the Employer with or into another Person or the merger of
      another Person into the Employer as a consequence of which Parent and/or one
      or
      more Subsidiaries do not own or control either directly or indirectly a majority
      of the equity of the Employer (or, if applicable, the surviving Person of such
      merger or consolidation) after the consummation of such merger or consolidation;
      or (iii) the sale of all or substantially all of the assets of the Employer
      to
      any Person or Group of Persons (other than to the Parent and/or one or more
      Subsidiaries).

     

    (b)  "Group"
      means a
      "group" as such term is used in Section
      13(d)(3)
      of the
      Exchange Act. 

     

    (c)  "Parent"
      means
      Ascendant Solutions, Inc., a Delaware corporation.

     

    (d)  "Person"
      means
      any individual, corporation, partnership, limited liability company, joint
      venture, estate, trust, unincorporated association, or any other
      entity.

     

    (e)  "Subsidiary"
      means
      any Person in any unbroken chain of Persons beginning with the Parent if, each
      of the Persons (other than the last Person in the unbroken chain) owns stock
      (or
      other equity interests) possessing 50% or more of the total combined voting
      power of all classes of stock (or other equity interests) in one of the other
      Persons in such chain.

     

    In
      addition, following the Change of Control, if the new owner (if any) of Employer
      or the transferred assets of Employer does not hire Employee as an employee
      in a
      comparable position with the same or similar responsibilities and at a base
      salary equal to or in excess of the base salary of Employee at the time of
      such
      Change of Control, then Employer shall pay to Employee as severance pay
      hereunder a sum equal to one (1) year's base salary then in effect payable
      on
      the funding of such Change of Control. 

     

    3.3  Benefits.
      Employer shall provide Employee with the following benefits during the Term
      of
      Employment:

     

    (a)  Employer
      will reimburse Employee for the cost of a cellular telephone for use by Employee
      for Employer's business purposes and will reimburse Employee for all bills
      for
      such telephone.

     


    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    


     

    (b)  Employer
      will provide health insurance, medical and hospital treatment benefits for
      Employee at Employer's expense with such medical and hospital treatment program
      (whether through insurance, a preferred provider organization, health
      maintenance organization, or other type of benefits) as the Employer may from
      time to time have in effect for its other employees. Employer may cover
      Employee's spouse and other dependents at Employee's own expense through payroll
      deductions on such basis as such health benefits then in effect allow.


     

    (c)  Employee
      shall be entitled to participate in such pension or retirement plans, if any,
      as
      the Employer may from time to time offer to its other employees on the same
      basis as the other employees of Employer.

     

    (d)  Employee
      shall be paid a car allowance of $500.00 per month during the term of this
      Agreement.

     

    3.4  Section
      409A.
      To the
      extent (i) any payments to which Employee becomes entitled under this Agreement,
      or any agreement or plan referenced herein, in connection with Employee's
      termination of employment with Employer constitute deferred compensation subject
      to Section 409A of the Code, and (ii) Employee is deemed at the time of such
      termination of employment to be a "specified employee" under Section 409A of
      the
      Code, then such payment or payments shall not be made or commence until the
      earliest of (x) the expiration of the six (6) month period measured from the
      date of Employee's "separation from service" (as such term is defined in
      Proposed Treasury Regulations under Section 409A of the Code and any successor
      thereto) with Employer; (y) the date Employee becomes "disabled" (as defined
      in
      Section 409A of the Code); and (z) the date of Employee's death following such
      separation from service. During any period that payment or payments to Employee
      are deferred pursuant to the foregoing, Employee shall be entitled to interest
      on the deferred payment or payments at a per annum rate equal to the highest
      rate of interest applicable to six (6) month money market accounts offered
      by
      the following institutions: Citibank N.A., Wells Fargo Bank, N.A. or Bank of
      America, on the date of such "separation from service." Upon the expiration
      of
      the applicable deferral period, any payments which would have otherwise been
      made during that period (whether in a single sum or in installments) in the
      absence of this section (together with accrued interest thereon) shall be paid
      to Employee or Employee's beneficiary in one lump sum. Notwithstanding anything
      to the contrary, any delay in making a payment pursuant to this section shall
      not otherwise affect the obligation of Employer to ultimately make such payment
      to Employee.

     

    ARTICLE
      IV  

     

    TERM
      AND TERMINATION 

     

    4.1  Term
      of Employment.
      As used
      herein, "Term
      of Employment"
      shall
      mean the period commencing and effective date of this Agreement, and ending
      twelve (12) full calendar months thereafter unless earlier terminated as
      provided herein. This Agreement shall be automatically renewed for successive
      one year periods after the initial year term of this Agreement, unless
      terminated as provided herein, or unless prior to the expiration of the initial
      term of this Agreement or any renewed term, Employee or the Employer provides
      at
      least thirty (30) days prior written notice to the other of such party’s desire
      not to continue the employment relationship (the term, as so extended or earlier
      terminated, is referred to herein as the “Term”).

     

    4.2  Termination.This
      Agreement shall terminate upon the first to occur of the following each of
      which
      shall constitute good cause for termination of this Agreement: 

     

    4.2.1  Death
      or Military Service of Employee.
      Upon
      the date of death of Employee or the date Employee voluntarily enlists into
      active military service; 

     

    4.2.2  Disability
      of Employee.
      Unless
      Employer agrees otherwise in writing, upon the inability of Employee to perform
      fully Employee's duties hereunder, whether by reason of injury or illness
      (physical or mental), incapacitating Employee either for a continuous period
      exceeding one hundred twenty (120) calendar days, or for a noncontinuous period
      exceeding one hundred eighty (180) calendar days during any twelve (12) calendar
      month period, excluding any leaves of absence approved in writing by Employer.
      In connection herewith, Employer shall have the right to have Employee examined
      at such reasonable time or times by such physicians as Employer and Employee
      agree upon (if Employer and Employee fail to agree upon a physician to conduct
      such examination, Employer and Employee shall each designate a physician and
      the
      designated physicians shall appoint a third physician to conduct the
      examination), and Employee will reasonably cooperate with such physician to
      be
      available for and submit to such examination; 

     

    4.2.3  Immediate
      Termination.
      On the
      revocation, termination, or suspension by any governmental entity of any
      professional license held by Employee and required to perform Employee's
      services hereunder for any cause, on the commission of any crime by Employee
      involving moral turpitude, on Employee's embezzling any funds or property of
      Employer or committing any other dishonest act towards Employer, on the Employer
      determining that the Employee was under the influence of alcohol or illegal
      drugs during working hours, or Employee refusing to obey a supervisor's order
      or
      request, or on Employee's abusive or aggressive behavior towards other employees
      or customers of Employer.


    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

     

    4.2.4  Material
      Breach and Other Good Cause for Termination.
      Either
      party hereto may upon the other party's material breach of this Agreement which
      remains uncorrected for thirty (30) days following written notice of said breach
      to the breaching party, terminate this Agreement on written notice to the other.
      

     

    4.2.5  Termination
      by Employer Without Cause.
      Employer may terminate Employee's employment under this Agreement without any
      cause whatsoever by giving Employee thirty (30) days' written notice or, at
      the
      election of Employer, immediate notice and the payment in lieu of notice of
      an
      amount equal to his base salary for the previous thirty (30) days, at the time
      set forth therein plus, if such termination is made pursuant to this
Section 4.2.5,
      an
      amount equal to the greater of (i) the base salary that would be payable to
      Employee from and after such 30-day period through the remainder of the Term
      of
      the Agreement (which shall not exceed eleven (11) months); or (ii) the base
      salary that would be payable to Employee from and after such 30-day period
      for
      another ninety (90) days, in equal installments as provided in Section 3.1.
      

     

    4.3  Effect
      of Termination.
      In the
      event of termination of this Agreement, Employer shall no longer be obligated
      to
      make any further payments hereunder or otherwise. Subject to the provisions
      hereof, in the event of such termination, any monies earned hereunder by, but
      not yet paid to, Employee shall be paid by Employer to Employee or Employee's
      surviving spouse, if any, or if none, to Employee's estate, and Employee or
      Employee's surviving spouse or estate shall pay any amount or amounts then
      owed
      by Employee to Employer, and Employee shall immediately and peacefully depart
      from any premises controlled by Employer, all without prejudice to any other
      rights or remedies of Employer available at law or equity. 

     

    ARTICLE
      V  

     

    VACATION
      AND LEAVE; BUSINESS EXPENSES 

     

    5.1  Vacation.
      Employee will be entitled to vacation, holidays, and continuing education leave
      and expense reimbursement as follows: 

     

    (a)  The
      Employee shall be entitled to the standard holidays recognized by Employer
      that
      other employees receive and may work up to two (2) of such holidays and take
      off
      two (2) days of compensating time.

     

    (b)  The
      Employee shall be entitled to three (3) weeks (including 15 working days)
      annually for vacation as well as two (2) days of personal leave each
      year.


     

    (c)  The
      Employee shall be entitled to attend continuing education seminars, or
      professional conventions, during the year at the expense of Employer as approved
      in advance by Employer and all expenses incurred in connection with such
      attendance shall be the responsibility of Employer, but Employee shall allow
      leave for attending such continuing education which shall not be counted against
      vacation time or personal or sick leave.

     

    (d)  The
      Employee shall be entitled to compensated and uncompensated sick time in
      accordance with Employee's policy from time to time in effect.

     

    (e)  Vacation
      time and personal leave and sick leave shall not be carried over or accumulated
      from year to year but must be taken in each calendar year granted by Employer
      or
      shall be lost and waived by Employee. 

     

    5.2  Employee
      Business Expenses.
      Employee is encouraged and expected, and from time to time as may be reasonably
      requested by Employer, to promote the business of Employer. In conjunction
      with
      such requests, Employer anticipates that Employee will incur expenses for
      travel, entertainment, professional advancement, and community service. Employee
      will be reimbursed for expenses he incurs on behalf of Employer, as long as
      such
      expenses are reasonable and necessary. 

     

    
      
        
        

      

      
        -7-

        
          

        

      

      
        
        

      

    

    ARTICLE
      VI  

     

    RECORDS
      AND EMPLOYEES

     

    6.1  Records
      of Employer.
      Employee acknowledges that any papers, records, customer lists, files, or other
      documents or copies thereof or other confidential information of any kind
      pertaining to Employer's business, sales, financial condition, products, or
      other activities, including any copies, worksheets, or extracts from any of
      the
      above, belong to and will remain the property of Employer. Employee further
      agrees that should Employee leave the active service of Employer, Employee
      will
      neither take nor retain any property of Employer without prior written
      authorization from Employer. Employee covenants and agrees that for a period
      beginning on the date hereof and ending one (1) year after the date of
      termination of Employee's employment with Employer (whether voluntary or
      involuntary), Employee shall not continue or commence to: either directly or
      indirectly for his own behalf or on behalf of any Person (as defined in
Article III)
      solicit
      for employment or solicit to provide services in any other capacity or employ
      or
      otherwise contract for services for any person employed by or who provides
      services in any other capacity to Employer at any time during the twelve (12)
      month period immediately preceding the termination of Employee's
      employment.


    ARTICLE
      VII  

     

    ADDITIONAL
      PROVISIONS 

     

    7.1  Additional
      Assurances.
      The
      provisions of this Agreement shall be self-operative and shall not require
      further agreement by the parties, except as may be specifically provided to
      the
      contrary; provided, however, at the request of Employer, Employee shall execute
      such additional instruments and take such additional acts as Employer may deem
      necessary to effectuate this Agreement. 

     

    7.2  Legal
      Fees and Costs.
      In the
      event that either party hereto shall incur attorneys' fees and expenses to
      enforce the terms and provisions of this Agreement, the party who shall prevail
      in the enforcement of the terms and provisions hereof shall be entitled to
      recover its attorneys' fees and expenses from the other party
      hereto.

     

    7.3  Choice
      of Law and Venue.
      This
      Agreement shall be governed by the laws of the State of Texas and shall be
      performable in Dallas County, Texas, and venue for any litigation regarding
      this
      Agreement shall be in the state or federal courts of Dallas County,
      Texas.

     

    7.4  Benefit/Assignment.
      Subject
      to provisions herein to the contrary, this Agreement shall inure to the benefit
      of and be binding upon the parties hereto and their respective legal
      representatives, successors, and assigns; provided, however, that Employee
      may
      not assign this Agreement or any or all of Employee's rights or obligations
      hereunder without the prior written consent of the Employer. 

     

    7.5  Waiver
      of Breach.
      The
      waiver by Employer of a breach or violation of any provision of this Agreement
      shall not operate as, or be construed to be, a waiver by Employer of any
      subsequent breach of the same or other provision hereof. 

     

    7.6  Notice.
      Any
      notice, demand, or communication required, permitted, or desired to be given
      hereunder shall be deemed effectively given when personally delivered or mailed
      by prepaid certified mail, return receipt requested, addressed as follows:
      

     

    Employer:  Park
      Infusioncare, LP

    16250
      Dallas Parkway, Suite 100

    Dallas,
      Texas 75248

    Attn:
      David E. Bowe

    


    Employee:  Scott
      R.
      Holtmyer

    2455
      Harrison 

    Beaumont,
      TX 77702 

    


    or
      to
      such other address and to the attention of such other person or officer as
      either party may designate by like written notice. 

     


    
      
        
        

      

      
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    7.7  Severability.
      This
      Agreement is intended to be performed in accordance with, and only to the extent
      permitted by, all applicable laws, ordinances, rules, and regulations. In the
      event any provision of this Agreement is held to be invalid, illegal, or
      unenforceable for any reason and in any respect, and the basis of the bargain
      of
      this Agreement is not thereby destroyed, such invalidity, illegality, or
      unenforceability shall not affect the remainder of this Agreement, which shall
      be and remain in full force and effect, enforceable in accordance with its
      terms. 

     

    7.8  Gender
      and Number.
      Whenever the context of this Agreement requires, the gender of all words herein
      shall include the masculine, feminine, and neuter, and the number of all words
      herein shall include the singular and plural. 

     

    7.9  Divisions
      and Headings.
      The
      divisions of this Agreement into articles and sections and the use of captions
      and headings in connection therewith are solely for convenience and shall have
      no legal effect in construing the provisions of this Agreement. 

     

    7.10  Entire
      Agreement/Amendment.
      This
      Agreement supersedes all previous contracts, and constitutes the entire
      agreement of whatsoever kind or nature existing between or among the parties
      respecting the subject matter. No party shall be entitled to benefits other
      than
      those specified herein. As between or among the parties, no oral statements
      or
      prior written material not specifically incorporated herein shall be of any
      force and effect. The parties specifically acknowledge that, in entering into
      and executing this Agreement, each is relying solely upon the representations
      and agreements contained in this Agreement and no others. All prior
      representations or agreements, whether written or oral, not expressly
      incorporated herein, are superseded and no changes in or additions to this
      Agreement shall be recognized unless and until made in writing and signed by
      all
      parties hereto. 

     

    IN
      WITNESS WHEREOF,
      the
      parties hereto have caused this Agreement to be executed in multiple original
      counterparts, all as of the day and year first above written. 

     

    


    


    
      	
              EMPLOYER: 

            	 	
              PARK
                INFUSIONCARE, LP, a Texas 

              Limited
                partnership

            
	 	 	
              By: Dougherty's
                Operating GP, LLC

            
	
               

            	 	
              /s/
                David E. Bowe

            
	 	 	
              Name:
                David E. Bowe

            
	 	 	
              Title:
                Chairman

            
	 	 	 
	
              EMPLOYEE:

            	 	
              /s/
                Scott R. Holtmyer

            
	 	 	
              
                SCOTT
                  R. HOLTMYER

              

            


    

     

     

    -9-