EXHIBIT 10.11
EMPLOYMENT AGREEMENT
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AGREEMENT by and among Cardinal Health, Inc., an Ohio corporation (the
"Company"), and Xxxxxx X. Xxxxxx (the "Executive") dated as of the 20th day of
November, 2001.
The Company has determined that because of the unique nature of the
Executive's services to the Company it is in its best interests and those of its
shareholders to assure that the Company will have the continued dedication of
the Executive, and to provide the Company with the continuity of management the
Company considers crucial to ensuring the Company's continued success.
Therefore, in order to accomplish these objectives, the Board of Directors and
the Company have caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EFFECTIVE DATE. The "Effective Date" shall mean the date hereof.
2. EMPLOYMENT PERIOD. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to be employed by the Company subject
to the terms and conditions of this Agreement, for the period commencing on the
Effective Date and ending on June 30, 2004 ("Initial Term"); provided,
commencing on June 30, 2003, the employment period shall be extended each day by
one day to create a new one year term until, at any time at or after such date,
the Company or the Executive delivers a written notice to the other party that
the employment period shall expire at the end of such one year term (the Initial
Term as so extended is the "Employment Period").
3. TERMS OF EMPLOYMENT. (a) POSITION AND DUTIES. (i) During the
Employment Period (A) the Executive shall serve as the Chairman and Chief
Executive Officer of the Company with such authority, duties and
responsibilities as are commensurate with such position and as may be consistent
with such position, reporting directly to the Board of Directors of the Company
(the "Board"), and (B) the Executive's services shall be performed in Dublin,
Ohio.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote substantially all of his attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period, it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope
thereto) subsequent to the Effective Date shall thereafter be deemed not to
interfere with the performance of the Executive's responsibilities to the
Company.
(b) COMPENSATION. (i) BASE SALARY. During the Employment Period, the E
xecutive shall receive an annual base salary ("Annual Base Salary") of no less
than $1,000,000. During the Employment Period, the Annual Base Salary shall be
reviewed at the time that the salaries of all of the executive officers of the
Company are reviewed. Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this Agreement.
Annual Base Salary shall not be reduced after any such increase and the term
Annual Base Salary as utilized in this Agreement shall refer to Annual Base
Salary as so increased.
(ii) ANNUAL BONUS. For each fiscal year completed during the
Employment Period, the Executive shall receive an annual cash bonus ("Annual
Bonus") based upon performance targets that are established by the Board or an
appropriate committee of the Board, provided that the Executive shall have a
target Annual Bonus of at least 250% of his Annual Base Salary.
(iii) INCENTIVE AWARDS. The Executive shall be eligible for equity
and non-equity awards under the Company's stock incentive and other long-term
incentive compensation plans during the Employment Period as determined by the
Board or an appropriate committee of the Board, consistent with past practice
and CEO competitive pay practices, provided that during the Employment Period
the Executive shall receive an annual stock option award with a value of no less
than 3,000% of Annual Base Salary in terms of "dollars at work."
(iv) RETIREMENT BENEFITS. The Executive shall be eligible to
participate in any supplemental executive retirement program established by the
Company during the Employment Period.
(v) DEFERRABLE RESTRICTED SHARE UNIT AWARD. As of the Effective
Date, the Executive shall be granted 150,000 shares of deferrable restricted
stock units of the Company ("Restricted Share Unit Award"), which may be settled
only in Company common stock, in accordance with the form of grant attached
hereto as Exhibit A. Such grant shall provide that the units shall vest on June
30, 2004. Except as otherwise provided herein and in such deferrable restricted
stock unit agreement, stock subject to such Restricted Share Unit Award will not
be distributable until the later to occur of (A) the Executive's 62nd birthday
or (B) the first date on which the Executive ceases to be a "covered employee"
within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as
amended, of the Company, or such earlier date as may be approved by the Board.
To the extent that dividends are paid on Company common stock after the
Effective Date and prior to the date that the Company common stock subject to a
Restricted Share Unit Award is issued to the Executive, the Executive shall be
entitled to a cash payment in an amount equal to the dividends that he would
have been entitled to receive had he been the owner of such unissued shares on
the date such dividends are paid. Such cash payment shall be made at the same
time as payment of dividends are made to other shareholders of Company common
stock. The issuance of any Company common stock pursuant to a Restricted Share
Unit Award shall be subject to the satisfaction of any and all conditions
necessary for the issuance of such shares under applicable law.
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(vi) OTHER BENEFITS. During the Employment Period, the Executive
shall be entitled to participate in all employee pension, welfare, perquisites,
fringe benefit, and other benefit plans, practices, policies and programs
generally applicable to the most senior executives of the Company on a basis and
on terms no less favorable than that provided to the Executive immediately prior
to the Effective Date.
(vii) EXPENSES. During the Employment Period, the Executive shall
be entitled to receive prompt reimbursement for all expenses incurred by the
Executive in accordance with the Company's policies for its senior executives.
(viii) VACATION. During the Employment Period, the Executive shall
be entitled to paid vacation in accordance with the plans, policies, programs
and practices of the Company as in effect with respect to the senior executives
of the Company.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The
Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section 11(a) of this Agreement of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 180
consecutive calendar days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the Executive's
legal representative.
(b) CAUSE. The Company may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Executive by the Board or its representative, which
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct or
gross misconduct which is materially and demonstrably injurious to the Company
or its affiliates, or
(iii) conviction of a felony or guilty or nolo contendere plea by
the Executive with respect thereto; or
(iv) a material breach of Section 9 of this Agreement.
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For purposes of this provision, no act or failure to act on the part of the
Executive shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's act or omission was in the best interests of the Company. Any act,
or failure to act, based upon express authority given pursuant to a resolution
duly adopted by the Board with respect to such act or omission or based upon the
advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best interests of
the Company. The cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board (not including the
Executive) at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i), (ii), (iii) or (iv) above, and specifying the
particulars thereof in detail. The definition of "Cause" hereunder shall
supersede any provision of any Plan or Agreement (as hereafter defined) that
provides for a Forfeiture or Payment (as hereafter defined) upon the Executive's
violation of a Company policy or similar such conduct under such Plan or
Agreement.
(c) GOOD REASON. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties materially
inconsistent in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a) of this Agreement, or any other
action by the Company which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose any action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement, other than a failure not occurring
in bad faith and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(iii) the Company requiring the Executive to be based at any office
or location more than 10 miles from that provided in Section 3(a)(i)(B) hereof,
provided that reasonable travel required in connection with Executive's
reporting relationships and responsibilities to the Board shall not be deemed a
breach hereof;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement;
(v) any failure by the Company to comply with and satisfy Section
10(b) of this Agreement;
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(vi) the Company giving Executive a notice of the termination of
the Employment Period effective at the end of or after the Initial Term,
pursuant to Section 2 prior to the Executive's attaining age 62; or
(vii) the occurrence of a Change of Control (as hereinafter
defined).
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, subject to the provisions of Section 5(d), the Date of
Termination shall be the date on which the Company notifies the Executive of
such termination and (iii) if the Executive's employment is terminated by reason
of death or Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Effective Date, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) GOOD REASON; OTHER
THAN FOR CAUSE. If, during the Employment Period, the Company shall terminate
the Executive's employment other than for Cause, death or Disability or the
Executive shall terminate employment for Good Reason:
(i) except as specified below, the Company shall pay to the
Executive in a lump sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the
Date of Termination to the extent not theretofore paid, and (2) the
product of (x) the average Annual Bonus paid to the Executive in
respect of the three completed fiscal years prior to the Date of
Termination, provided that such amount shall not be less than
Executive's Annual Bonus at target hereunder (the "Recent Average
Bonus"), and (y) a fraction, the numerator of which is the number of
days in the fiscal year in which the Date of Termination occurs through
the Date of Termination, and the denominator of
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which is 365, in each case to the extent not theretofore paid (the
sum of the amounts described in clauses (1) and (2), shall be
hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to the product of (x) two, or if the Date of
Termination is within three years after a Change of Control, three and
(y) the sum of (I) the Executive's Annual Base Salary and (II) the
Recent Average Bonus; and
(ii) any stock options, restricted stock and restricted share
units held by the Executive or a permitted transferee (whether granted under
this Agreement or otherwise) shall vest immediately (with option exercisability
continuing until the end of the option term); and
(iii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is eligible to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliates (such amounts and benefits, the "Other Benefits") in
accordance with the terms and normal procedures of each such plan, program,
policy or practice; provided that Executive and his eligible dependents shall
continue to participate in the Company's welfare benefit plans for the period
during which severance is measured commencing on the Date of Termination.
For purposes of this Agreement, "Change of Control" shall mean any of
the following events:
(i) the acquisition by an individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act)(a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of
twenty-five percent (25%) or more of either (x) the then
outstanding common shares of the Company (the "outstanding
Company Common Shares") or (y) the combined voting power of
the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however,
that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change of Control: (A)
any acquisition directly from the Company or any corporation
controlled by the Company, (B) any acquisition by the
Company or any corporation controlled by the Company, (C)
any acquisition by an employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (D) any acquisition
by any corporation that is a Non-Control Acquisition (as
defined in (iii) below); or
(ii) the individuals who, as of the Effective Date constitute the
Board of the Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of the
Company
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provided, however, that any individual becoming a director
subsequent to the Effective Date whose election, or
nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual
or threatened election contest with respect to the election
or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(iii) consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the
assets of the Company or the acquisition by the Company of
assets or shares of another corporation (a "Business
Combination"), unless such Business Combination is a
Non-Control Acquisition. A "Non-Control Acquisition" means a
Business Combination where, following such Business
Combination, (x) all or substantially all of the individuals
and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Shares and Outstanding
Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than fifty percent (50%) of, respectively, the then
outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may
be, of the corporation resulting from such Business
Combination (including, without limitation a corporation
which as a result of such transaction owns the Company all
or substantially all of the Company's assets either directly
or through one or more subsidiaries) in substantially the
same proportions as their ownership immediately prior to
such Business Combination of the Outstanding Company Common
Shares and Outstanding Company Voting Securities, as the
case may be, (y) no Person (excluding any employee benefit
plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, twenty-five percent (25%) or more
of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business
Combination or the combined voting power of the then
outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business
Combination (including any ownership that existed in the
Company or the company being acquired, if any) and (z) at
least a majority of the members of the board of directors of
the corporation resulting from such Business Combination
were members of the Incumbent Board at the time of the
execution of
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the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(b) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment
shall be terminated for Cause or the Executive terminates his employment without
Good Reason during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay or provide
to the Executive an amount equal to the amount set forth in clause (1) of
Section 5(a)(i)(A) above, and the timely payment or provision of the Other
Benefits, in each case to the extent theretofore unpaid. In the event the
Executive gives the Company notice of termination of the Employment Period
effective at the end of or after the Initial Term, pursuant to Section 2, the
Company shall pay Executive the amount provided for in Section 5(a)(i)(A)(1),
and shall provide the Executive (and his spouse, as applicable) Other Benefits.
(c) DEATH. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of the Other Benefits. Additionally, any stock options, restricted
stock and restricted stock units held by the Executive or a permitted transferee
(granted under this Agreement or otherwise) shall immediately vest (with option
exercisability continuing until the end of the option term). Accrued Obligations
shall be paid to the Executive's estate or beneficiary, as applicable, in a lump
sum in cash within 30 days of the Date of Termination.
(d) DISABILITY; RETIREMENT. If the Executive's employment is terminated
by reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 30 days of the Date of Termination. Additionally, unless the
award agreement with respect to an individual stock option, restricted stock or
restricted share unit award otherwise provides for immediate and full vesting,
for purposes of the vesting of any stock options, restricted stock or restricted
share units held by the Executive or a permitted transferee (granted under this
Agreement or otherwise), if the Executive's employment is terminated by reason
of the Executive's Disability during the Employment Period or the Executive's
employment is terminated by reason of the Executive's retirement at any time
after June 30, 2004, the Executive shall be treated as a consulting employee and
any such stock options, restricted stock or restricted share units shall
continue to vest in accordance with their original vesting schedule (with option
exercisability continuing until the end of the option term), provided, that, the
Executive and the Company shall enter into an agreement reasonably acceptable to
the Executive pursuant to which the Executive will continue as a consulting
employee from the Date of Termination or the retirement date, as applicable,
until March 31, 2006. In the event that the Executive retires prior to June 30,
2004, all restricted stock, restricted share units and stock options shall
continue to vest or be forfeited, as the case may be, in accordance with their
original terms, provided that the Company (or an
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instrumentality thereof) may only exercise any right it may have to curtail
vesting if the Executive is indicted for a felony involving moral turpitude or
grievous bodily harm within 60 days after the Date of Termination. If the
Executive shall die after termination by reason of his retirement or Disability,
all stock options, restricted stock and restricted share units (other than with
respect to the Restricted Share Unit Award in the event of death following a
retirement prior to June 30, 2004) shall immediately vest and all stock options
shall remain exercisable until the end of the option term. With respect to the
provision of Other Benefits upon the Executive's Disability, the term Other
Benefits as utilized in this Section 5(d) shall include, and the Executive shall
be entitled after the Disability Effective Date to receive, disability and other
benefits as in effect at any time thereafter generally with respect to senior
executives of the Company.
6. NON-EXCLUSIVITY OF RIGHTS. Except as specifically provided, nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company,
or any of its affiliates and for which the Executive may qualify, nor, subject
to Section 11(f), shall anything herein limit or otherwise affect such rights as
the Executive may have under any contract or agreement with the Company, or its
affiliates. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company or its affiliates at or subsequent to
the Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by
this Agreement. As used in this Agreement, the terms "affiliated companies" and
"affiliates" shall include any company controlled by, controlling or under
common control with the Company.
7. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. 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 and such amounts
shall not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest by
the Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive about the amount
of any payment pursuant to this Agreement), plus in each case interest on any
delayed payment at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code"), if
the Executive prevails on any material claim made by him, and disputed by the
Company under the terms of this Agreement.
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. If at any time for any
reason any payment or distribution (a "Payment") by the Company or any other
person or entity to or for the benefit of the Executive is determined to be a
"parachute payment" (within the meaning of Section 280G (b) (2) of the Code),
whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise in connection with or arising out of his employment
with the Company or a change in ownership or excise tax imposed by
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Section 4999 of the Code or any interest or penalties are incurred by the
Executive ( the "Excise Tax"), then within a reasonable period of time after
such determination is reached the Company shall pay to the Executive an
additional payment (the "Gross-Up Payment") in an amount such that the net
amount retained by the Executive, after deduction of any Excise Tax on such
Payment and any federal, state or local income or employment tax or other taxes
and Excise Tax on the Gross-Up Payment, shall equal the amount of such Payment
(including any interest or penalties with respect to any of the foregoing). All
determinations concerning the application of the foregoing shall be made by a
nationally recognized firm of independent accountants (together with legal
counsel of its choosing) selected by the Company after consultation with the
Executive (which may be the Company' independent auditors), whose determination
shall be conclusive and binding on all parties. The fees and expenses of such
accountants and counsel (including counsel for the Executive) shall be borne by
the Company. If such independent auditors determine that no Excise Tax is
payable by the Executive, it shall furnish the Executive with an opinion that
the Executive has substantial authority not to report any Excise Tax on his
Federal income tax return. In the event the Internal Revenue Service assesses
the Executive an amount of Excise Tax in excess of that determined in accordance
with the foregoing, the Company shall pay to the Executive an additional
Gross-Up Payment, calculated as described above in respect of such excess Excise
Tax, including a Gross-Up Payment in respect of any interest or penalties
imposed by the Internal Revenue Service with respect to such excess Excise Tax.
9. COVENANTS.
(a) INTRODUCTION. The parties acknowledge that the provisions and
covenants contained in this Section 9 are ancillary and material to this
Agreement and that the limitations contained herein are reasonable in geographic
and temporal scope and do not impose a greater restriction or restraint than is
necessary to protect the goodwill and other legitimate business interests of the
Company. The parties also acknowledge and agree that the provisions of this
Section 9 do not adversely affect the Executive's ability to earn a living in
any capacity that does not violate the covenants contained herein. The parties
further acknowledge and agree that the provisions of Section 11(a) below are
accurate and necessary because (i) this Agreement is entered into in the State
of Ohio, (ii) Ohio has a substantial relationship to the parties and to this
transaction, (iii) Ohio is the headquarters state of the Company, which has
operations nationwide and has a compelling interest in having its employees
treated uniformly within the United States, (iv) the use of Ohio law provides
certainty to the parties in any covenant litigation in the United States, and
(v) enforcement of the provision of this Section 9 would not violate any
fundamental public policy of Ohio or any other jurisdiction.
(b) CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company and all of its subsidiaries,
partnerships, joint ventures, limited liability companies, and other affiliates
(collectively, the "Cardinal Group"), all secret or confidential information,
knowledge or data relating to the Cardinal Group and its businesses (including,
without limitation, any proprietary and not publicly available information
concerning any processes, methods, trade secrets, research secret data, costs,
names of users or purchasers of their respective products or services, business
methods, operating procedures or programs or methods of promotion and sale) that
the Executive has obtained or obtains during the Executive's employment by the
Cardinal Group and that is not public knowledge (other than as a result of the
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Executive's violation of this Section 9(b))("Confidential Information"). For the
purposes of this Section 9(b), information shall not be deemed to be publicly
available merely because it is embraced by general disclosures or because
individual features or combinations thereof are publicly available. The
Executive shall not communicate, divulge or disseminate Confidential Information
at any time during or after the Executive's employment with the Cardinal Group,
except with prior written consent of the applicable Cardinal Group company, or
as otherwise required by law or legal process. All records, files, memoranda,
reports, customer lists, drawings, plans, documents and the like that the
Executive uses, prepares or comes into contact with during the course of the
Executive's employment shall remain the sole property of the Company and/or the
Cardinal Group, as applicable, and shall be turned over to the applicable
Cardinal Group company upon termination of the Executive's employment.
(c) NON-RECRUITMENT OF CARDINAL GROUP EMPLOYEES, ETC. Executive shall
not, at any time during the Restricted Period (as defined in this Section 9(c)),
without the prior written consent of the Company, engage in the following
conduct (a "Solicitation"): (i) directly or indirectly, contact, solicit,
recruit or employ (whether as an employee, officer, director, agent, consultant
or independent contractor) any person who was or is at any time during the
previous six months an employee, representative, officer or director of the
Cardinal Group; or (ii) take any action to encourage or induce any employee,
representative, officer or director of the Cardinal Group to cease their
relationship with the Cardinal Group for any reason. A "Solicitation" does not
include any recruitment of employees within or for the Cardinal Group. The
"Restricted Period" means the period of Executive's employment with the Cardinal
Group and the additional period ending on the second anniversary of the
Executive's Date of Termination.
(d) NO COMPETITION - - SOLICITATION OF BUSINESS. During the Restricted
Period, the Executive shall not (either directly or indirectly or as an officer,
agent, employee, partner or director of any other company, partnership or
entity) solicit, service, or accept on behalf of any competitor of the Cardinal
Group the business of (i) any customer of the Cardinal Group at the time of the
Executive's employment or Date of Termination, or (ii) any potential customer of
the Cardinal Group which the Executive knew to be an identified, prospective
purchaser of services or products of the Cardinal Group.
(e) NO COMPETITION - - EMPLOYMENT BY COMPETITOR. During the Restricted
Period, the Executive shall not invest in (other than in a publicly traded
company with a maximum investment of no more than 1% of outstanding shares),
counsel, advise, or be otherwise engaged or employed by, any entity or
enterprise (other than an entity or enterprise with annual revenues of 10% or
less of the Company's revenues controlled by any of the Executive's sons,
including without limitation Bound Tree Xxxx, Talisman Capital Partners or
Inchord Communications, and which such foregoing exception shall apply for the
purpose of the covenant of this Section 9(e) as well as any covenant or other
limitation under any restricted stock, stock option or other stock incentive
held by Executive) that competes with the Cardinal Group, by developing,
manufacturing or selling any product or service of a type, respectively,
developed, manufactured or sold by the Cardinal Group (each such person
described, and not excepted, as a customer, potential customer or a competitor
under Section 9(d) or this Section 9(e) is a "Competitor").
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(f) NO DISPARAGEMENT (i) The Executive and the Company shall at all
times refrain from taking actions or making statements, written or oral, that
(A) denigrate, disparage or defame the goodwill or reputation of Executive or
the Cardinal Group, as the case may be, or any of its trustees, officers,
security holders, partners, agents or former or current employees and directors,
or (B) are intended to, or may be reasonably expected to, adversely affect the
morale of the employees of the Cardinal Group. The Executive further agrees not
to make any negative statements to third parties relating to the Executive's
employment or any aspect of the businesses of Cardinal Group and not to make any
statements to third parties about the circumstances of the termination of the
Executive's employment, or about the Cardinal Group or its trustees, directors,
officers, security holders, partners, agents or former or current employees and
directors, except as may be required by a court or governmental body.
(ii) The Executive further agrees that, following termination of
employment for any reason, the Executive shall assist and cooperate with the
Company with regard to any matter or project in which the Executive was involved
during the Executive's employment with the Company, including but not limited to
any litigation that may be pending or arise after such termination of
employment. Further, the Executive agrees to notify the Company at the earliest
opportunity of any contact that is made by any third parties concerning any such
matter or project. The Company shall not unreasonably request such cooperation
of Executive and shall compensate the Executive for any lost wages or expenses
associated with such cooperation and assistance.
(g) INVENTIONS. All plans, discoveries and improvements, whether
patentable or unpatentable, made or devised by the Executive, whether alone or
jointly with others, from the date of the Executive's initial employment by the
Company and continuing until the end of any period during which the Executive is
employed by the Cardinal Group, relating or pertaining in any way to the
Executive's employment with or the business of the Cardinal Group, shall be
promptly disclosed in writing to the Secretary of the Board and are hereby
transferred to and shall redound to the benefit of the Company, and shall become
and remain its sole and exclusive property. The Executive agrees to execute any
assignment to the Company or its nominee, of the Executive's entire right, title
and interest in and to any such discoveries and improvements and to execute any
other instruments and documents requisite or desirable in applying for and
obtaining patents, trademarks or copyrights, at the expense of the Company, with
respect thereto in the United States and in all foreign countries, that may be
required by the Company. The Executive further agrees at all times, to cooperate
to the extent and in the manner required by the Company, in the prosecution or
defense of any patent or copyright claims or any litigation, or other proceeding
involving any trade secrets, processes, discoveries or improvements covered by
this Agreement, but all necessary expenses thereof shall be paid by the Company.
(h) ACKNOWLEDGEMENT AND ENFORCEMENT. (i) The Executive acknowledges and
agrees that: (A) the purpose of the foregoing covenants, including without
limitation the noncompetition covenants of Sections 9(d) and (e), is to protect
the goodwill, trade secrets and other Confidential Information of the Company;
(B) because of the nature of the business in which the Cardinal Group is engaged
and because of the nature of the Confidential Information to which the Executive
has access, the Company would suffer irreparable harm and it would be
impractical and excessively difficult to determine the actual damages of the
Cardinal Group in the event the Executive breached any of the covenants of this
Section 9; and (C) remedies at law
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(such as monetary damages) for any breach of the Executive's obligations under
this Section 9 would be inadequate. The Executive therefore agrees and consents
that if the Executive commits any breach of a covenant under this Section 9 or
threatens to commit any such breach, the Company shall have the right (in
addition to, and not in lieu of, any other right or remedy that may be available
to it) to temporary and permanent injunctive relief from a court of competent
jurisdiction, without posting any bond or other security and without the
necessity of proof of actual damage.
(i) Any provision of any agreement between the Company (or other
member of the Cardinal Group) and the Executive or of any plan, program, policy
or practice of the Company (or other member of the Cardinal Group) affecting the
Executive, (including, without limitation, any stock option grant agreement,
restricted stock agreement and the Restricted Share Unit Award agreement)
(collectively, "Plan or Agreement") to the contrary notwithstanding, (x) no
covenant or other restriction under any such Plan or Agreement respecting the
Executive's conduct (which is sometimes referred to therein as "Triggering
Conduct" or "Competitor Triggering Conduct") shall be enforceable, to cause a
forfeiture or obligation to pay an amount realized by Executive (or his
permitted transferees thereunder) as provided under such Plan or Agreement (a
"Forfeiture or Payment"), except as a result of any breach of such covenant or
restriction by the Executive prior to the second anniversary of the date on
which the Executive's rights under such Plan or Agreement shall have vested (or
to the extent of such vesting) (except that the last day of the Restricted
Period shall be substituted for such second anniversary only if the Restricted
Period expires before such second anniversary) respecting any grant of
restricted stock made to the Executive prior to the Effective Date); and (y) the
definition of a "Solicitation" at Section 9(c) and of a "Competitor" at Section
9(e) hereof shall supersede any definition of such conduct that is less
beneficial to the Executive under such a covenant or restriction under any such
Plan and Agreement. In furtherance thereof, (i) no such covenant or restriction
shall be enforceable to cause a Forfeiture or Payment against the Executive (or
his permitted transferees) under any Plan or Agreement to the extent that the
Executive's rights thereunder vested two or more years prior to the Effective
Date, (ii) the Executive shall not be subject to any Forfeiture or Payment under
any such Plan or Agreement until he shall have been afforded Due Process (as
hereafter defined), and (iii) any such Plan or Agreement entered into after the
Effective Date shall be subject to the provisions of this Section 9(i) and to
the definition of "Cause" under Section 4(c) hereof unless such Plan or
Agreement specifically refers to this Section 9(i) or Section 4(c) as the case
may be and specifically states that the provisions of this Section 9(i) or the
definition of "Cause" under Section 4(c) shall not apply. "Due Process" shall
mean: (A) the Executive has been given not less than 60 days prior written
notice of such conduct ("Conduct Notice") by the Board, (B) upon such notice to
the Executive, the Executive is given an opportunity, together with counsel, to
be heard before the Board at a meeting of the Board called and held for the
purpose of reviewing such conduct, (C) in the good faith opinion of the Board at
such meeting and delivery of a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board (not including the Executive) finding that the Executive is guilty of such
conduct, (D) the Executive fails to cure such conduct, if it is capable of cure,
on or before the later of the 60th day following the Conduct Notice or the 14th
day after delivery of such resolution, and (E) the Company shall promptly pay
all professional fees incurred by the Executive to defend such allegation of a
breach of such covenant or restriction (unless such three-quarters majority of
the Board adopts such resolution
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in which case the provisions of Section 7 hereof shall govern any subsequent
dispute resolution proceedings or settlement of the parties).
10. SUCCESSORS. (a) (a) This Agreement is personal to the Executive and
without the prior written consent of the Company 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. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(b) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
its business and/or assets to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
11. MISCELLANEOUS. (a) (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, without reference to
principles of conflict of laws. The parties hereto irrevocably agree to submit
to the jurisdiction and venue of the courts of the State of Ohio, in any action
or proceeding brought with respect to or in connection with this Agreement. 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 otherwise than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
-------------------
At the most recent address on file for the Executive at the Company.
If to the Company:
-----------------
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Chief Legal Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Except as otherwise specifically provided
herein, notice 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.
14
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4 of this Agreement, shall not be deemed to be a waiver of
such provision or right or any other provision or right of this Agreement.
(f) From and after the Effective Date, this Agreement shall supersede
any other employment, severance or change of control agreement between the
parties and any other Plan or Agreement with respect to the subject matter
hereof. In the case of any conflict between the terms of this Agreement (the
"Terms") and the provisions of any such employment, severance or change of
control agreement or any other Plan or Agreement as in effect from time to time
(the "Provisions"), the Executive's rights and the Company's obligations shall
be established by whichever of the Terms or Provisions would be more beneficial
to the Executive.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name and on its behalf, all as of
the day and year first above written.
/s/ XXXXXX X. XXXXXX
-----------------------------------
XXXXXX X. XXXXXX
XXXXXXXX HEALTH, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Title: Executive Vice President
-----------------------------
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