Exhibit 10.2





Exhibit 10.2




EMPLOYMENT AGREEMENT




THIS AGREEMENT by and between Arcadia Resources, Inc., a Nevada corporation (“Arcadia” or
“Employer”), and Matthew R. Middendorf (the
“Executive”), is effective as of August 12, 2009;
and




WHEREAS, Employer desires to employ Executive in the position described herein; and




WHEREAS, Executive desires to serve in that capacity,




NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:



1. Employment. Employer shall employ the Executive, and the Executive shall serve
Employer and its subsidiaries, if any, on the terms and conditions set forth in this Agreement, for
the period beginning on the date hereof (the “Employment Date”) and continuing until terminated as
provided below in Section 4 (the “Employment Period”).




2. Position and Duties.



(a) As of the date of this Agreement, and during the Employment Period, the Executive will be
employed as Chief Financial Officer of Employer and such of its subsidiaries as may be determined
by Employer’s Board of Directors, performing such duties as may be designated by the Board of
Directors from time to time which shall be consistent with the general nature of the duties and
authority of a Chief Financial Officer in similarly situated companies. Executive shall report to
the President and Chief Executive Officer.


 


 









 





(b) During the Employment Period, excluding any periods of vacation and absence due to
intermittent illness to which the Executive is entitled, and any services or activities on behalf
of civic or charitable institutions that do not significantly interfere with the performance of his
responsibilities to Employer or violate the provisions of Section 9, the Executive shall devote his
full time and attention to the business and affairs of Employer and its
subsidiaries. Except as stated in the previous sentence, during the Employment Period,
Executive shall have no other employment or business interests; provided, however, that the
Executive shall be able to invest his personal assets in investments and entities as long as such
investments do not violate Section 9 and do not require a material amount of the Executive’s time.
The Executive shall use reasonable efforts to faithfully and efficiently carry out all duties and
responsibilities assigned to him.




3. Compensation.



(a) Base Salary. During the Employment Period, the Executive shall receive an annual
Base Salary of $250,000 payable in accordance with the regular payroll practices of Employer. The
Executive’s Base Salary shall be reviewed annually by Employer, in accordance with Employer’s
standard practices for executives generally, and may be increased, but not decreased, as determined
by the Board of Directors, in their sole discretion, or by any committee of the Board of Directors
to which such authority has been delegated. The parties acknowledge that as an accommodation to
the Employer, Executive agreed effective April 1, 2009 to temporarily receive a ten percent (10%)
reduction in his Base Salary (the “Reduced Base”). The amount of Executive’s Reduced Base salary
is presently $225,000 annually and shall remain in effect until March 31, 2010. All severance
payments due to Executive under this Agreement shall be calculated based on Executive’s Base
Salary, not Executive’s Reduced Base.


 


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(b) Stock Grant. Employer, per the approval of its Board of Directors, awarded
Executive effective February 1, 2008, from and subject to the terms and conditions of the 2006
Arcadia Resources, Inc. Equity Incentive Plan and the Plan’s restricted stock award agreement,
150,000 shares of Arcadia common stock (the “Restricted Shares”). The Restricted Shares, until
vested, shall be subject to restrictions on transferability and held in escrow as described below. The Restricted Shares have vested and shall vest over a four (4) year period at the rate of
9,375 shares at the end of each Arcadia fiscal quarter following the date of the Restricted Stock
award to executive (the “Vesting Date”). The Executive shall acquire rights as a shareholder in
Restricted Shares upon each Vesting Date. Restricted Stock which has not vested shall be forfeited
only in the event of Executive’s termination for Cause or Executive’s resignation without Good
Reason (as those terms are used in this Agreement). If Executive’s employment is terminated
without Cause or for Good Reason, the Restricted Stock shall continue to vest as if Executive’s
employment was continuing.



(c) Stock Options. Subject to the terms and conditions of this Agreement and the plan
adopted by the Employer’s Board of Directors, Executive has been granted options to purchase
550,001 shares of the Employer’s common stock. As of March 31, 2009, 166,667 of those options were
vested and were exercisable at the strike price of $0.72 per share. As of March 31, 2009, 50,000
of those options were vested and were exercisable at the strike price of $0.71 per share. So long
as Executive remains employed by the Employer, Executive shall be entitled to exercise the
remaining Stock Options pursuant to the following vesting schedule: 166,667 options vested and
exercisable March 31, 2010, and 166,667 options vested and exercisable March 31, 2011. The options
granted pursuant to this paragraph are subject to the following terms and conditions:



(i) Except as otherwise described in the paragraph immediately below, Executive shall forfeit
all unvested options upon a termination of Executive’s employment. Executive shall have one
calendar year from the date of termination to exercise any vested but not yet exercised options.


 


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(ii) Executive’s unvested options shall vest immediately upon the termination of Executive’s
employment only if the Executive’s employment is terminated without Cause or for Good Reason within
one calendar year of a Change in Control of the Employer. Executive shall have one calendar year
from the date of termination to exercise any options vested pursuant to this paragraph.



(iii) For the purposes of this agreement, a Change in Control means the occurrence of any of
the following: (1) a reorganization, merger or consolidation in which the Employer is not the
surviving corporation, (2) a sale of all or substantially all of the assets of the Employer to
another person or entity, (3) 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 the Employer’s
outstanding voting securities by any single person or group (as such term is used in Rule 13d-5
under the Exchange Act), unless such acquisition was approved by the Employer’s Board of Directors
prior to the consummation thereof, or (4) the appointment of a trustee in a Chapter 11 bankruptcy
proceeding involving the Employer or the conversion of such a proceeding into a case under Chapter
7.



(iv) To the extent that the vesting and/or payment upon termination provisions of this
Agreement differ from such provisions in any other compensation plan document of Employer, the
provisions in this Agreement shall control.



(d) Bonus Compensation. Executive shall be eligible to participate in executive bonus
plans as approved by the Compensation Committee, including the 2008 Executive Performance Based
Compensation Plan.


 


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(e) Other Benefits. To at least the same extent as other senior executives of
Employer, except as required by law or applicable government regulations, the Executive shall
be entitled to participate in: (i) any short-term and long-term incentive, savings, and
retirement plans; (ii) all practices, policies and programs including vacation policies established
by Employer; and (iii) the Executive and/or the Executive’s family, as the case may be, shall be
eligible for participation in, and shall receive all benefits under, all welfare benefits plans,
practices, policies and programs provided by Employer.



(f) Expenses. During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the Executive in carrying out
the Executive’s duties under this Agreement, provided that the Executive complies with the
generally applicable policies, practices and procedures of Employer for submission of expense
reports, receipts, or similar documentation of such expenses.



(g) Vacation. Executive shall be entitled to four (4) weeks of paid vacation leave
annually.


 


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4. Termination of Employment.



(a) Death or Disability. The Executive’s employment and the Employment Period shall
terminate automatically upon the Executive’s death or Disability during the Employment Period.
“Disability” means Executive’s inability, because of mental or physical illness or incapacity,
whether total or partial, to perform one or more primary duties of the Executive’s employment with
reasonable accommodation, and which continues for a period of one hundred eighty (180) days within
any twelve (12) month period. If any question shall arise during the Executive’s employment
hereunder regarding the Executive’s inability, because of mental or physical illness or incapacity,
whether total or partial, to perform one or more primary duties of the Executive’s employment with
reasonable accommodation, Executive, at the request of Employer, shall submit to a medical
examination by a physician selected by Employer (the
“Employer Physician”) to determine whether the Executive is so disabled. In the event that
the Executive disagrees with the findings of the Employer Physician, Executive shall have the right
to submit to a second medical examination by a physician selected by the Executive (the “Executive
Physician”). If the Employer Physician’s and the Executive Physician’s findings agreed with
respect to Executive’s disability status, such determination shall be binding on Employer and the
Executive. If the Employer Physician’s and the Executive Physician’s findings do not agree with
respect to Executive’s disability status, the Employer Physician and the Executive Physician shall
together designate a third physician to make the determination with respect to Executive’s
disability status and such determination shall be binding on the Employer and the Executive. The
date of the Executive’s Disability shall be the date on which a Physician (whether employer,
Executive or third Physician) makes a final, binding determination of Executive’s disability.



(b) By Employer. Employer may terminate the Executive’s employment under this
Agreement during the Employment Period for Cause or without Cause. “Cause” means:



(i) The Executive’s fraud, theft or embezzlement committed with respect to Employer, its
affiliates or customers;



(ii) the continued failure by the Executive to perform his duties as contemplated by this
Agreement (other than any such failure resulting from his Disability or any such actual or
anticipated failure after the issuance by the Executive of a Notice of Termination for Good Reason)
over a period of not less than ninety (90) days; provided however, that Employer may terminate the
Executive’s employment for “Cause” under this subdivision only if Employer has provided notice to
the Executive of his performance failures and such failures have not been cured by the Executive
within thirty (30) days of the receipt of notice by the Executive;


 


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(iii) the willful or negligent misconduct of the Executive that is materially injurious to
Employer (including, without limitation, any breach by the Executive of Section 9 of this
Agreement), and, in the case of negligent misconduct, such misconduct is not cured by Executive
within thirty (30) days of the receipt of notice by the Executive from Employer;



(iv) the Executive’s conviction of a misdemeanor which directly causes material financial harm
to Employer, which harm is not cured by the Executive within thirty (30) days of the receipt of
notice by the Executive from the Employer of such harm;



(v) the Executive’s conviction of a felony (including a felony constituting a crime of moral
turpitude);



(vi) Executive’s material breach of this Agreement causing material harm to Employer that is
not cured within thirty (30) days of receipt of notice thereof (any breach by the Executive of
Section 11 of this Agreement shall be deemed a material breach); provided that no “cure” shall be
deemed to have been effected unless both the breach and the harm have been cured;




(vii) the Executive’s breach of a fiduciary duty owed to Employer or its Affiliates; or



(viii) the Executive’s willful failure to carry out any material directive of Employer which
does not require unlawful action nor breach this Agreement.



(ix) Provided, however, that the Executive shall be limited to one cure during any twelve (12)
month period for all descriptions of cause and only for those causes where a cure period is
permitted.


 


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(c) A termination of Executive’s employment for Cause shall be effectuated by giving the
Executive written notice (“Notice of Termination for Cause”) of the termination,
setting forth in reasonable detail the specific conduct that constitutes Cause and the
specific provision(s) of this Agreement on which Employer relies. The Executive shall have 30 days
to remedy the conduct set forth in the Notice of Termination for Cause. A termination of
Executive’s employment for Cause shall be effective on the thirtieth business day following the
date when the Notice of Termination for Cause is given, unless the conduct set forth in the notice
is remedied by the Executive within the 30 day period; provided, however, that the Executive shall
be able to cure such conduct only once within a twelve (12) month period.



(d) By the Executive. The Executive may terminate employment under this Agreement for
Good Reason or without Good Reason. “Good Reason” means:




(i) any reduction in the Executive’s Base Salary;



(ii) removal of the Executive from his positions as Chief Financial Officer or failure to
re-elect the Executive to such position, except for “Cause” as defined in paragraph (b) above;



(iii) any change in Executive’s reporting assignment such that he is no longer reporting to
Employer’s President and Chief Executive Officer, except such a change that is made by mutual
agreement between the Executive and Employer;



(iv) a material failure by Employer to comply with any provision of Sections 2 and 3 of this
Agreement, other than (i) a purely monetary failure with respect to an amount less than $5,000,
(ii) a failure within Executive’s control or (iii) an isolated, insubstantial or inadvertent
failure that is not taken in bad faith and is remedied by Employer within 15 days after receipt of
written notice thereof from the Executive;



(v) any action by Employer, except as required by law or applicable government regulations,
which is specific to the Executive that would or does adversely affect
Executive’s participation in bonus or incentive plans or the Other Benefits as described in
Section 3; and


 


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(vi) any failure by Employer to obtain from any successor in interest thereto assent to the
terms of this Agreement.



(e) A termination of employment by the Executive for Good Reason shall be effectuated by
giving Employer written notice (“Notice of Termination for Good Reason”) of the termination,
setting forth in reasonable detail the specific conduct that constitutes Good Reason and the
specific provision(s) of this Agreement on which the Executive relies. Employer shall have 30 days
to remedy the conduct set forth in the Notice of Termination for Good Reason. A termination of
employment by the Executive for Good Reason shall be effective on the thirtieth business day
following the date when the Notice of Termination for Good Reason is given, unless the conduct set
forth in the notice is remedied by Employer within the 30 day period; provided, however, that
Employer shall be able to cure such conduct only once within a twelve (12) month period.



(f) A termination of the Executive’s employment by the Executive without Good Reason shall be
effectuated by giving Employer at least 30 days’ advance written notice of the termination.



(g) Date of Termination. The “Date of Termination” means the date of the Executive’s
death, the date of the Executive’s Disability, the date the termination of the Executive’s
employment under this Agreement by Employer for Cause or without Cause or by the Executive for Good
Reason or without Good Reason, as the case may be, is effective. The Employment Period shall end
on the Date of Termination.


 


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(h) “Affiliate” of Employer means any person or entity directly or indirectly controlling,
controlled by, or under common control with, Employer. For purposes of this definition, the terms
“Control,” “Controlling,” and “Controlled” mean the right to elect a majority of the members or the
board of directors or other comparable body responsible for management and direction of a person or
entity by contract, by virtue of share ownership or otherwise.



5. Obligations of Employer upon Termination. If Employer terminates the Executive’s
employment under this Agreement (other than for Cause) or the Executive terminates employment under
this Agreement for Good Reason, and provided the Executive continues to abide by the provisions of
Section 9 of this Agreement:



(a) Severance Payment. The Executive shall be entitled to a continued payment for one
year of the Executive’s Base Salary, payable in regular intervals, in accordance with the regular
payroll practices of Employer;



(b) Base Salary Reimbursement. The Executive shall be entitled to immediate
reimbursement of all unpaid Base Salary resulting from the 10% reduction in Executive’s Base Salary
described in paragraph 3(a) above. The amount of reimbursement shall be the difference between the
amount Executive should have received in Base Salary and the amount of Reduced Base actually paid
to Executive since April 1, 2009.



(c) Bonus. The Executive shall receive a pro rata portion of any bonus or incentive
plan amount for that portion of the year prior to the Date of Termination, but only to the extent
the Executive’s performance measures are likely to be achieved by the end of the fiscal year.
One-half of the Executive’s pro rata bonus shall be paid immediately upon
termination of the Executive’s employment; the other half (with appropriate adjustments to
reflect actual performance) shall be paid within 60 days of the end of the fiscal year.


 


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(d) COBRA Reimbursement. If after the Date of Termination the Executive elects to
receive continuation coverage under Employer’s group health plans pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Executive shall be entitled to
reimbursement from the Employer for the COBRA premium costs of medical, prescription, dental and
vision coverage, if any, under Employer’s group health plans (as in effect from time to time) for
the Executive and, to the extent permitted under COBRA, the Executive’s spouse and eligible
dependents, such reimbursement not to exceed the COBRA rates for such coverage and, unless
terminated sooner as described below, such reimbursement to continue for one year after the Date of
Termination; provided, however, that the Executive shall be required to submit to Employer
reasonable evidence of payment by the Executive of any such COBRA premiums in order to obtain
reimbursement from Employer and that the Executive may not submit any requests for reimbursement of
such payments more than once per calendar month; provided, further, that Employer, in its sole
discretion, may elect for the first two calendar months (or portions thereof) of the Severance
Period, as applicable, to remit any such payments directly on behalf of the Executive rather than
requiring the Executive to remit such payments and seek reimbursement therefore from Employer;
provided, further, that the obligations of Employer to reimburse any such payments shall terminate
on the date of occurrence of the first to occur of any of the following, if any of the following
should occur prior to the end of the Severance Period: (i) the date of commencement of eligibility
of the Executive under the group health plan of any other employer or (ii) the date of commencement
of eligibility of the Executive for Medicare benefits under Title XVIII of the Social Security Act
(“Medicare Benefits”); and provided, further, that the


 


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Executive nevertheless shall be entitled to elect
COBRA continuation coverage without reimbursement under Employer’s group health plans at the
applicable COBRA premium rates through the date that is 18 months after the Date of Termination or,
if earlier, the date that the Executive becomes covered under the group health plan of another
employer or becomes eligible for Medicare Benefits, if the obligations of Employer to reimburse the
Executive for COBRA premiums for continuation coverage under Employer’s group health plans should
terminate prior to such date. Notwithstanding anything to the contrary set forth above, employer,
in its sole discretion, may discontinue any coverage contemplated hereunder in the event that such
continuation is not permitted under or would adversely affect the tax status of the plan or plans
of Employer pursuant to which the coverage is provided, in which case Employer shall make
supplemental severance payments to the Executive in monthly amounts equal to the amounts to which
the Executive otherwise would have been entitled to reimbursement hereunder in respect of such
coverage for the remainder of the period that Employer otherwise would have been obligated to make
reimbursements hereunder to the Executive. Any amounts that are reimbursed to the Executive by
Employer or paid directly to the Executive as supplemental severance payments will be considered
taxable income to the Executive and any taxes on such amounts will be the Executive’s
responsibility and subject to applicable tax withholding.



(e) Accrued Obligations. Employer shall also pay, or cause to be paid, to the
Executive, in a lump sum in cash within 30 days after the Date of Termination certain of
Executive’s accrued but unpaid cash compensation (the “Accrued Obligations”), which shall include
but not be limited to the Executive’s Base Salary through the Date of Termination that has not yet
been paid, any accrued but unpaid vacation pay, and similar unpaid items that have
accrued and as to which the Executive has become entitled as of the Date of Termination,
including declared but unpaid bonuses and unreimbursed employee business expenses.


 


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(f) Death or Disability. If the Executive’s employment is terminated by reason of the
Executive’s death or Disability during the Employment Period, Employer shall pay the Accrued
Obligations to the Executive or the Executive’s estate or legal representative, as applicable, in a
lump sum in cash within 30 days after the Date of Termination. In addition, Employer shall pay a
pro-rata portion of the Executive’s bonus to Executive or his estate or legal representative,
determined and paid in the manner set forth in subparagraph 5(c) above. Pro rata bonuses shall be
paid within 60 days of the end of the fiscal year for that portion of the year prior to the Date of
Termination but only to the extent the Executive’s performance measures are achieved at the end of
the fiscal year. In such event, Employer shall have no further obligations under this Agreement or
otherwise to or with respect to the Executive other than for any entitlements under the terms of
any other plans or programs of Employer in which the Executive participated and under which the
Executive has become entitled to a benefit.



(g) By Employer for Cause; By the Executive Other than for Good Reason. If
the Executive’s employment is terminate by Employer for Cause or the Executive voluntarily
terminates his employer other than for Good Reason, Employer shall pay the Executive, or shall
cause the Executive to be paid, the Executive’s Base Salary through the Date of Termination that
has not been paid and the amount of any declared but unpaid bonuses, accrued but unpaid vacation
pay, and unreimbursed employee business expenses, and Employer shall have no further obligations
under this Agreement or otherwise to or with respect to the Executive other than for any
entitlements under the terms of any other plans or programs of Employer in which the Executive
participated and under which the Executive has become entitled to a benefit.


 


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6. Tax Treatment. It is the intention of the parties that payments to be made to the
Executive whether under the terms of this Agreement or otherwise shall not constitute “excess
parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986 (as
amended from time to time) (the “Code”) and any regulations thereunder. If the independent
accountants serving as auditors for Employer on the date of this Agreement (or any other
independent certified public accounting firm designated by Employer) determine that any payment or
distribution by Employer to or for the benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or otherwise) would be
nondeductible by Employer under Section 280G of the Code (or any successor provision), then the
amounts payable or distributable under this Agreement will be reduced to the maximum amount which
may be paid or distributed without causing such payments or distributions to be nondeductible. The
determination shall take into account (a) whether the payments or distributions are “parachute
payments” under Section 280G, (b) the amount of payments and distributions under this Agreement
that constitute reasonable compensation, and (c) the present value of such payments and
distributions determined in accordance with Treasury Regulations in effect from time to time. The
Executive shall have the right to designate which payments or distributions will be reduced.



7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any plan, program, policy or practice provided by
Employer for which the Executive may qualify. Vested benefits and other amounts that the Executive
is otherwise entitled to receive on or after the Date of Termination under any plan, policy,
practice or program of, or any contract or agreement with, Employer shall be payable in
accordance with such plan, policy, practice, program, contract or agreement, as the case may
be, except as explicitly modified by this Agreement.


 


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8. Mitigation. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement. Notwithstanding this Section 8, the Executive shall continue to
be subject to all of the restrictions provided for in Section 9 of this Agreement during the
Severance Period.




9. Confidential Information; Non-solicitation; Non-competition.



(a) the Executive agrees and acknowledges that by reason of his employment by and service to
Employer, he will have access to, become exposed to and/or become knowledgeable about confidential
information of Employer and its Affiliates (the “Confidential Information”) from time to time
during the Employment Period, including, without limitation, proposals, plans, inventions,
practices, systems, programs, processes, methods, techniques, research, records, supplier sources,
customer lists and other forms of business information that are not known to Employer’s
competitors, are not recognized as being encompassed within standard business or management
practices and/or are kept secret and confidential by Employer. Executive agrees that at no time
during or after the Employment Period will he disclose or use the Confidential Information except
as may be required in the prudent course of business for the benefit of Employer, or as may be
required by law or in a legal proceeding.


 


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(b) The Executive acknowledges that Employer’s business plan is to engage in business
throughout the United States. During the Executive’s employment by Employer and for the duration
of the Restricted Period (defined below), the Executive agrees that he will not, unless acting with
the prior written consent of Employer, directly or indirectly, own, manage,
control, or participate in the ownership, management or control of, be financially interested
in, or be employed or engaged by, or otherwise affiliated or associated with, as an officer,
director, employee, consultant, independent contractor or otherwise, any other corporation,
partnership, proprietorship, firm, association or other business entity, which is engaged in the
management, ownership or operation of retail pharmacies in the United States or any other business
that, as of the Date of Termination, is engaged in by Employer in the United States, has been
reviewed with the Board of Directors of Employer for development to be owned or managed by
Employer, within nine (9) months of the Date of Termination, and/or has been divested by Employer
but as to which Employer has an obligation to refrain from involvement for so long as such
restriction applies to Employer; provided, however, that the ownership of not more than 5% of the
equity of a publicly traded entity shall not be deemed to be a violation of this paragraph.
Notwithstanding the foregoing, the Executive shall be relieved of the covenants provided for in
this subsection in the event that Employer fails to make payments to Executive as provided for in
Section 5 of this Agreement and Employer has not cured such failure within fifteen (15) calendar
days after receipt of written notice from Executive. The foregoing will be construed to permit the
Executive to own or operate an independent pharmacy or to practice as a licensed pharmacist in an
independent or retail pharmacy at any time following the Date of Termination.



(c) The Executive also agrees that he will not, directly or indirectly, during the Restricted
Period induce any person who is an employee, officer, director, or agent of Employer, to terminate
such relationship, or employ, assist in employing or otherwise be associated in business with any
present or former employee or officer of Employer or its Affiliates, including without limitation
those who commence such positions with Employer or its Affiliates after the Date of Termination.


 


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(d) During the Restricted Period, the Executive shall not attempt in any manner to contact or
solicit any individual, firm, corporation or other entity (i) that is or has been, a customer,
supplier or vender or Employer or its Affiliates at any time during the Restricted Period, (ii) to
which a proposal has been made by Employer during the Restricted Period or (iii) to which employer
has made a proposal during the nine (9) months preceding the Date of Termination, for the purpose
of implementing retail pharmacies or providing retail pharmacy or services or products similar to
the services and products provided by Employer at the Date of Termination. In addition, during the
Restricted Period, the Executive shall not persuade or attempt to persuade any customer, supplier,
vendor, licensor or other entity or individual doing business with Employer to discontinue or
reduce its business with Employer or otherwise interfere in any way with the business relationships
and activities of Employer. For purposes of this paragraph (d), a customer of Employer or its
Affiliates includes any retail/grocery establishment, physician’s office, clinic or any healthcare
or retail host business in which Employer or its subsidiaries has located or has proposed to locate
a pharmacy or provide pharmacy services.



(e) The Executive acknowledges and agrees that the restrictions contained in this Section 9
are reasonable and necessary to protect and preserve the legitimate interests, properties, goodwill
and business of Employer, that Employer would not have entered into this Agreement in the absence
of such restrictions and that irreparable injury will be suffered by Employer should the Executive
breach the provisions of this Section. The Executive represents and acknowledges that (i) the
Executive has been advised by Employer to consult the Executive’s own legal counsel in respect of
this Agreement, (ii) the Executive has consulted with and been advised by his own counsel in
respect of this Agreement, and (iii) the Executive has
had full opportunity, prior to execution of this Agreement, to review thoroughly this
Agreement with the Executive’s counsel.


 


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(f) The Executive further acknowledges and agrees that a breach of the restrictions in this
Section 9 may not be adequately compensated by monetary damages. The Executive agrees that actual
damage may be difficult to ascertain and that, in the event of any such breach, Employer may be
entitled to injunctive relief in addition to such other legal or equitable remedies as may be
available to Employer. In the event that the provisions of this Section 9 should ever be
adjudicated to exceed the limitations permitted by applicable law in any jurisdiction, it is the
intention of the parties that the provision shall be amended such that those provisions are made
consistent with the maximum limitations permitted by applicable law, that such amendment shall
apply only within the jurisdiction of the court that made such adjudication and that those
provisions otherwise be enforced to the maximum extent permitted by law.



(g) For purposes of this Section 9, the term “Restricted Period” following the Date of
Termination means (i) if Employer terminates the Executive’s employment without Cause or if the
Executive terminates his employment with Good Reason, the entire period during which payments to
the Executive continue pursuant to Section 5, or (ii) in any other case, a period of one (1) year
following the Date of Termination.



(h) All Confidential Information; all innovations, inventions and discoveries of Employer; and
all correspondence, files, documents, advertising, sales, manufacturers’ and other materials or
articles or other information of any kind, in any media, form or format, whether or not deemed
confidential, shall be and remain the sole property of Employer (“Employer Property”). Upon
termination or at Employer’s request, whichever is earlier, Executive shall immediately deliver to
Employer all such Employer Property.


 


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(i) If, contrary to the effort and intent of the parties, any covenant or other obligation
contained in this Section 9 shall be found not to be reasonably necessary for the protection of, to
be unreasonable as to duration, scope or nature of restrictions, or to impose an undue hardship on
Executive, then it is the desire of the parties that such covenant or obligation not be rendered
invalid thereby, but rather that the duration, scope or nature of the restrictions be deemed
reduced or modified, with retroactive effect, to render such covenant or obligation reasonable,
valid and enforceable. The parties further agree that in the event a court, despite the efforts
and intent of the parties, declares any portion of the covenants or obligations in this Section 9
invalid, the remaining provisions of this Section 9 shall nonetheless remain valid and enforceable.



10. Governing Law and Arbitration. This Agreement and all disputes arising out of
Executive’s employment hereunder shall be governed by and construed in accordance with the laws of
the State of Indiana without reference to principles of conflict laws, notwithstanding the fact
that any 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 Executive’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. The arbitration shall be held at a
location within Marion County, Indiana. The parties hereto agree that any arbitration award
rendered on any claim submitted to arbitration shall be final and binding upon the parties, subject
to appeal, and that judgment may be entered upon any arbitration award by any circuit court located
in Indiana or by any other court of competent jurisdiction. The parties hereto agree that
the expenses of any arbitration shall be borne equally by the parties to the proceeding,
except that the party determined to have prevailed in any arbitration or civil action shall be
awarded its reasonable attorneys fees and costs of its own experts, evidence and the like. The
parties hereto acknowledge and agree that by making this agreement to submit all claims to binding
arbitration, they are waiving the right to litigate in a court of law, and to trial by jury if
applicable, all claims, including all claims assertable under any federal or state law prohibiting
discrimination in employment.


 


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11. Successors.



(a) This Agreement is personal to the Executive and, without the prior written consent of
Employer, shall not be assignable by the Executive otherwise than by will or the laws of descent
and distribution. This Agreement shall inure to the benefit of and be enforceable by the
Executive’s legal representatives.



(b) This Agreement shall inure to the benefit of and be binding upon the Employer and its
successors and assigns.



(c) The Employer shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Employer expressly to assume and agree to perform this Agreement in the same manner and to the same
extent that the Employer would have been required to perform it if no such succession had taken
place. As used in this Agreement, “Employer” shall mean both Employer as defined above and any
such successor that assumes and agrees to perform this Agreement, by operation of law or otherwise.


 


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12. Miscellaneous.



(a) The captions of this Agreement are not part of the provisions hereof and shall have no
force or effect. This Agreement may not be amended or modified except by a written agreement
executed by the parties hereto or their respective successors and legal representatives. This
Agreement supersedes all prior agreements between Employer and Executive with respect to its
subject matter, including Executive’s employment agreements with PrairieStone, and constitutes
(along with the documents referred to in this Agreement) a complete and exclusive statement of the
terms of the Agreement between Employer and Executive with respect to its subject matter.



(b) All notices and other communications under this Agreement shall be in writing and shall be
given by hand to the other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:



If to the Executive:




Matthew R. Middendorf

5254 N. Delaware Street

Indianapolis, IN 46220



If to the Employer:




Arcadia Resources, Inc.

9229 Delegates Row, Suite 260

Indianapolis, IN 46240

Attn: Chief Executive Officer



or to such other address as either party furnishes to the other in writing in accordance with this
Section. Notices and communications shall be effective when actually received by the addressee.



(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement. If any provision of this
Agreement shall be held invalid or unenforceable in part, the remaining portion of such
provision together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent consistent with law.


 


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(d) Notwithstanding any other provision of this Agreement, Employer may withhold from amounts
payable under this Agreement all federal, state, local and foreign taxes that are required to be
withheld by applicable laws or regulations.



(e) The Executive’s or Employer’s failure to insist upon strict compliance with any provision
of, or to assert any right under, this Agreement (including, without limitation, the right of the
Executive to terminate employment for Good Reason pursuant to paragraph (d) of Section 4 of this
Agreement) shall not be deemed a waiver of such provision or right or of any other provision of or
right under this Agreement.



(f) This Agreement may be executed in several counterparts, each of which shall be deemed an
original, and said counterparts shall constitute but one and the same instrument.



13. The respective rights and obligations of the parties hereunder shall survive any
termination of the Executive’s employment to the extent necessary to the intended preservation of
such rights and obligations, including, but not by way of limitation, those rights and obligations
set forth in Sections 3, 5, 6, 8 and 9.



IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the
authorization of the Board of Directors, Employer has caused this Agreement to be executed in its
name and on its behalf, all as of the day and year first above written.



ARCADIA RESOURCES, INC.



	 	 	 	 	 	 	 
	By:
	 	/s/ Steven L. Zeller 	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Steven Zeller	 	 
	 

	 	Title:
	 	Chief Operating Officer	 	 
	 
	 	 	 	 	 	 
	EXECUTIVE	 	 
	 
	 	 	 	 	 	 
	/s/ Matthew R. Middendorf	 	 
	 	 	 
	Matthew R. Middendorf	 	 







 


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