Exhibit 99.2
EXECUTION COPY
AMENDMENT AND ASSUMPTION OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND ASSUMPTION OF EMPLOYMENT AGREEMENT (the "Amendment
and Assumption") dated August 9, 2004 by and among XXXXX X. XXXXXXXXXXX
("Employee") CHRONIMED INC., a Minnesota corporation (the "Company") and MIM
CORPORATION, a Delaware corporation (the "Parent").
RECITALS:
A. Employee and the Company are parties to that certain Employment
Agreement dated July 1, 2003 (the "Employment Agreement") pursuant to which
Employee is serving the Company as its Chairman, Chief Executive Officer and
President.
B. Pursuant to an Agreement dated contemporaneously herewith (the
"Merger Agreement"), a wholly owned subsidiary of Parent will merge with and
into the Company, as a result of which transaction (the "Transaction"), and the
Company will become a wholly owned subsidiary of Parent.
C. The Transaction will constitute a "change in control" within the
meaning of the Employment Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. New Position. Effective upon closing of the Transaction, Employee
shall become an employee of Parent and will serve as the Chief Executive Officer
and President of Parent, and will be a member of the Board of Parent (together
the "New Position"), but will not be the Chairman of Parent.
In his position as Chief Executive Officer and President of the Parent,
Employee's authority, duties and responsibilities will be as set forth on
Exhibit A hereto. Current compensation, benefits, bonus programs and stock
option programs to which Employee shall be entitled in the New Position shall be
at least as favorable to Employee as those in effect prior to this Amendment and
Assumption.
2. Employee's Agreement. Effective upon closing of the Transaction,
Employee agrees (i) to serve in the New Position with Parent, and (ii) that his
serving in the New Position and terminating his position as Chairman, Chief
Executive Officer and President of the Company will not give Employee a right to
terminate for Good Reason under the Employment Agreement.
Except for Employee's agreement to serve in the New Position and
Parent's assumption of the Employment Agreement as the employer thereunder, the
Employment Agreement will remain in full force and effect subject to the terms
of this Amendment and Assumption.
3. Change of Control Matters. The parties agree and acknowledge that
the Transaction constitutes a change of control under the Employment Agreement.
However, Employee agrees that he will not treat his change to the New Position
as a matter which gives him right to terminate for Good Reason. Except for this
agreement relating to the New Position, the parties agree that Employee retains
all other rights which have arisen or may arise under the Employment Agreement
as a result of the change of control due to the Transaction. These rights
include, without limitation, the right to terminate with Good Reason if actions
are taken which, under the terms of the Employment Agreement as modified hereby,
are inconsistent with Employee's New Position with Parent. By way of
clarification and not limitation, Employee's rights, if any, to terminate for
Good Reason after the change in control will be based upon the position, duties,
authorities and responsibilities of the New Position, rather than upon
Employee's previous position with the Company.
4. Assumption by Parent. Effective upon the closing of the Transaction,
the Parent hereby assumes and agrees to perform the Employment Agreement, as
modified by the provisions hereof. References in the Employment Agreement to the
"Company" shall, as a consequence of this Amendment and Assumption, mean and
include the Parent as defined herein.
5. Effectiveness. This Amendment and Assumption is entered into by the
parties hereto in contemplation of the closing of the Transaction. If, for
whatsoever reason, the Transaction does not close, then this Amendment and
Assumption shall terminate and be of no further force and effect, and Employee
shall continue to serve the Company under the provisions of the Employment
Agreement without any modification by this Amendment and Assumption.
IN WITNESS WHEREOF, the parties have entered into this Amendment and
Assumption as of the date first above written.
EMPLOYEE:
/S/ Xxxxx X. Xxxxxxxxxxx
--------------------------------------------
MIM COPORATION
By: /S/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Its CEO
CHRONIMED INC.
By: /S/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Its General Counsel and Secretary
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EXHIBIT A
DESCRIPTION OF DUTIES, AUTHORITY AND RESPONSIBILITIES
POSITION TITLE: Chief Executive Officer/President
REPORTS TO: Board of Directors
SUMMARY:
Directs the development of short and long range objectives, policies,
budgets and operating plans for the organization. As approved by the
Board of Directors, oversees their consistent interpretation,
implementation and achievement and establishes an organization
hierarchy and delegates limits of authority to subordinate executives
regarding policies, contractual commitments, expenditures and personnel
matters. Represents the organization to the financial community,
industry groups, key customers, representatives of government and
regulatory agencies, and the general public.
DUTIES AND RESPONSIBILITIES:
As directed by the Board of Directors, Employee's duties and responsibilities
will include, as well as such other duties as may be assigned by the Board of
Directors from time to time, the following:
1. Xxxxxx a corporate culture that promotes ethical practices, encourage
individual integrity, and fulfill social responsibility.
2. Maintain a positive and ethical work climate that is conducive to
attracting, retaining and motivating a diverse group of top quality
employees at all levels.
3. Develop and recommend to the Board of Directors annual business plans
and budgets that support Parent's long term strategy.
4. Ensure that the day-to-day business affairs of Parent are appropriately
managed.
5. Consistently strive to achieve Parent's financial and operating goals
and objectives; have P&L responsibility and authority, including hiring
and termination of executive and other employees and the location of
executive employees.
6. Ensure continuous improvement in the quality and value of the products
and services provided by Parent.
7. Ensure that Parent achieves and maintains a satisfactory competitive
position within its industry.
8. Ensure through recruitment, retention and related HR decisions that
Parent has an effective management team below the level of the CEO;
have an active plan for its development and succession; and serve as
the executive officer to whom all other executive officers of Parent
(other than the Chairman) directly report.
9. Assist the Board of Directors in developing and implementing an
effective succession plan in place for the CEO position.
10. Propose and oversee the implementation of corporate policies.
11. Serve, with the Chairman, as the chief spokesperson for Parent.
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