EX-10
5
jorndtempagree.htm
AMENDMENT TO EMPLOYMENT CONTRACT
AMENDMENT TO EMPLOYMENT CONTRACT OF X. X.
XXXXXX:
Pursuant to the authority and direction of the Board
of Directors of Walgreen Co., upon execution by the respective parties of the
following Consulting and Non-Competition Agreement, the terms and conditions of
such Agreement shall carry out certain terms of, shall serve as an amendment
to, and shall ultimately supersede the Employment Agreement between
L. Xxxxxx Xxxxxx and Walgreen Co. dated October, 1988
(as amended):
CONSULTING AND NON-COMPETITION
AGREEMENT
THIS AGREEMENT, dated this 10th day of October, 2002,
by and between WALGREEN CO., an Illinois corporation (the "Company"), and L.
Xxxxxx Xxxxxx of Northbrook, Illinois (the "Consultant").
WITNESSETH:
WHEREAS, the Consultant has been continuously in the
employ of the Company since 1963 and is presently serving as Chairman of the
Board of the Company;
WHEREAS, the Company desires that, if the Consultant
remains in its employ until his Retirement Date (defined below), the Consultant
shall during the ensuing three years be available to the Company for advice and
counsel as reasonably requested; and
WHEREAS, upon the terms and conditions hereinafter set
forth, the Consultant is willing to enter into this Agreement:
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants and agreements of the parties herein contained, it is
hereby agreed as follows:
1. Retirement Date. The term "Retirement Date,"
as used in this Agreement, means the "pay through date" as shall be designated
on the Company’s payroll records.
2. Employment through Retirement Date. Until his
Retirement Date, the Consultant shall continue in the employ of the Company,
and he shall devote substantially his entire business time and attention to the
business and affairs of the Company and its subsidiaries and shall perform such
duties as reasonably may be assigned by the Board of Directors.
3. Consulting Period Duties. The Consultant
agrees that, for a period of three years from and after his Retirement Date
(the "Consulting Period"), he will be available at reasonable times and upon
reasonable notice by the Company for consultation with the Company’s Board
of Directors, the Company’s Chief Executive Officer and/or other senior
personnel of the Company and for performing special services for the Company
that are commensurate with the Consultant’s experience and skills.
4. Consulting Period Compensation. As
compensation for such services and for the Consultant’s compliance with
the other terms and conditions of this Agreement, the Company agrees to pay to
the Consultant a sum equal in the aggregate to 150% of the annualized rate of
base salary applicable to the Consultant immediately prior to his Retirement
Date, to be paid in equal monthly installments over the 36-month Consulting
Period. The Consultant shall also be entitled to the use of office space and
administrative assistance during the Consulting Period, for purposes of
performing consulting services hereunder, for purposes of handling residual
Company business relating to his former role as Chairman, and for purposes of
conducting reasonable personal business. In addition, the Company shall
reimburse the Consultant for all reasonable travel and other business expenses
incurred by the Consultant in connection with performance of the services under
this Agreement, in accordance with the Company’s business expense
reimbursement policies and procedures.
5. Employee/Retiree Benefits. Following the
Retirement Date, the Consultant shall no longer serve as an employee of the
Company, and, as such, he shall no longer be eligible to participate as an
employee in the employee benefit plans and programs of the Company.
Nevertheless, neither his consultant status nor the compensation to be provided
under this Agreement shall alter the benefits to which the Consultant may be
entitled as a retiree under any Company benefit plan or program.
6. Restrictive Covenants. During the Consulting
Period, the Consultant shall continue to be subject to all confidentiality and
related obligations to which he has been subject as an executive of the
Company. The Consultant further agrees that, during the Consulting Period and
for 12 months thereafter:
- he will not, directly or indirectly, whether as principal, agent,
partner, officer, director, employee, consultant, stockholder of in excess of
1/2 of 1% of the outstanding stock, or member, engage in any business or
activity which, in the opinion of the Board of Directors of the Company, shall
be competitive with or adverse to the interests of any business conducted by
the Company or any of its subsidiaries, except with the prior written consent
of the Board of Directors of the Company; and
- he will not, directly or indirectly, either on
his own behalf or on behalf of any other person, firm or corporation, employ,
or attempt to employ or assist anyone else in attempting to employ any person
who is at such time or who was within the six-month period immediately prior to
such time in the employ of the Company or any subsidiary of the
Company.
The Consultant acknowledges and agrees that the Company
would be damaged irreparably if any provision under this Section 6 were
breached by him, and money damages would be an inadequate remedy for any such
nonperformance or breach. Accordingly, the Company, in order to protect its
interests, may pursue, in addition to other rights and remedies existing in its
favor, an injunction or injunctions to prevent any breach or threatened breach
of any of such provisions and to enforce such provisions specifically.
7. Early Termination of Agreement. This
Agreement shall terminate prior to the commencement of the Consulting Period
if, prior to the Consultant's Retirement Date, he shall voluntarily leave the
employ of the Company or shall be discharged from his employment for any reason
that would fall within the definition of "Cause" under the Employment Agreement
between the Consultant and the Company dated October, 1988 (as amended) (the
"Employment Agreement"). In such event, the parties obligations under this
Agreement shall not go into effect; provided that the Consultant’s
obligations under Section 6 hereof shall still apply and shall remain in effect
for what would have been the full Consulting Period and for 12 months
thereafter. This Agreement may also be terminated under the following
circumstances:
- The Company may terminate this Agreement during the Consulting
Period if the Consultant materially breaches his obligations hereunder, in
which case the Company’s obligations under Section 4 hereof shall cease as
of the effective date of termination, and the Consultant’s obligations
under Section 6 hereof shall remain in effect for what would have been the
duration of the Consulting Period and for 12 months thereafter.
- If, before or after his Retirement Date, the Consultant should by
reason of physical disability be unable to perform his duties hereunder, the
Company shall be obligated to commence, or complete, as may be applicable, the
payments specified in Section 4 hereof; provided that the Consultant shall be
obligated to resume such duties if he recovers from such disability prior to
the end of the Consulting Period.
- If, before or after his Retirement Date, the Consultant should die,
the Company shall thereafter be obligated to commence, or complete, as may be
applicable, payments to the beneficiary of the Consultant, hereinafter named,
in sums equal to one-half of the amounts which the Consultant would have
received, if living, as specified in Section 4 hereof.
- If the Company affirmatively discontinues this consulting
arrangement for any reason other than those covered in the remainder of this
Section 7, then the Consultant shall be entitled to be paid the remainder of
the payments specified in Section 4 hereof, in one lump sum, without
discount.
8. Independent Contractor Relationship. The
Consultant understands and agrees that, during the Consulting Period, he shall
serve as an independent contractor of the Company, the Company will not
withhold any income or other taxes from the amounts paid to the Consultant
hereunder, and the Consultant is responsible for paying his own income, social
security, Medicare and other applicable taxes.
9. Integration. This Agreement is in full
satisfaction of the Company’s obligations concerning this consulting
arrangement under the Employment Agreement or otherwise, and this Agreement
supersedes the Employment Agreement as of the date the Consultant ceases to
serve as Chairman of the Company. This Agreement also supersedes any other
prior understandings and agreements between the parties concerning the subject
matter hereof. This Agreement may not be changed or terminated orally, and no
change, termination or attempted waiver of any of the provisions hereof shall
be binding unless in writing and signed by the party against whom the same is
sought to be enforced.
10. Assignability; Binding Effect. The
Consultant may not assign or delegate this Agreement or any of his rights or
obligations under this Agreement without the prior written consent of the
Company. Subject to the preceding sentence, this agreement shall be binding
upon the parties hereto and the corporate successors and assigns of the
Company.
11. Governing Law. This Agreement shall be
interpreted according to the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties have duly executed this agreement the
day and year first above written.
WALGREEN CO.
By:/s/ Xxxx X.
Xxxxx /s/
L. Xxxxxx Xxxxxx
Xxxx
X. Xxxxx, Vice President
L. Xxxxxx Xxxxxx
Attest:
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Secretary
BENEFICIARY DESIGNATION
The undersigned L. Xxxxxx Xxxxxx, as the Consultant in the attached
Agreement, hereby designates _____________________________________ as his
beneficiary under the provisions of Section 7(c) thereof. The undersigned
further reserves the right to change beneficiaries or successor beneficiaries
from time to time during the term of the Agreement.
Dated this ______ day of ____________________, 2002.
__________________________
L. Xxxxxx Xxxxxx
