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EXHIBIT 10-X (iii)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the
8th day of February, 1996, by and among Xxxxxx X. Xxxxx, M.D. (the "Employee"),
National Infusion Services, Inc., an Indiana corporation (the "Corporation"),
and for certain purposes only, Bindley Western Industries, Inc., an Indiana
corporation that is the indirect parent of the Corporation ("BWI").
W I T N E S S E T H:
WHEREAS, the Corporation desires to obtain the services of the
Employee as President and Chief Executive Officer, and the Employee is willing
to render such services to the Corporation upon the terms and conditions herein
set forth:
WHEREAS, the role of the Corporation is to (a) own and operate
the business previously owned and operated by the Infusion Services Division of
Infectious Disease of Indiana, P.S.C. ("ISD"), (b) own and operate any infusion
centers developed by Employee or the Corporation, (c) provide infusion therapy
services, and (d) supervise the operation of any infusion centers now owned or
operated, directly or indirectly, by BWI or any subsidiary, division or
affiliate of BWI (the "Corporation Group").
WHEREAS, in connection with the transactions contemplated in
this Agreement, the parties have reviewed and considered the laws set forth at
42 U.S.C. Sections 1320a-7b(b) and 1877 (the "Fraud and Abuse Laws"), and
believe that the terms and conditions of this Agreement are in compliance with
these laws.
NOW, THEREFORE, in consideration of the mutual promises set
forth herein and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. COMPENSATION; DUTIES; OTHER TERMS
1.1. Compensation
1.1.1. Signing Bonus
On the date hereof, Employee shall be
entitled to receive sixty (60) shares of common stock of the Corporation,
without par value (the "Common Stock"), such that, if, on the date hereof, all
of the options, warrants, conversion privileges or other similar rights to
acquire Common Stock held by any person on the date hereof were exercised, the
Employee would own six percent (6%) of the then issued and outstanding Common
Stock. The Corporation represents to the Employee that
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Common Stock is the only class of capital stock of the Corporation currently
authorized.
1.1.2. Salary and Benefits
(a) The Corporation agrees to employ the Employee and the
Employee agrees to accept employment by the Corporation on a full-time
basis as President and Chief Executive Officer of the Corporation, at
a minimum annual salary of $300,000 payable during the Term of
Employment (as defined in Section 2 hereof). Such salary shall be
payable monthly in advance in equal installments and shall be subject
to deduction for withholding and other applicable taxes.
(b) The Employee shall be entitled to participate in all
fringe benefit programs to which executive officers of BWI are
generally entitled, including any termination benefit agreement,
retirement, pension, profit-sharing or thrift plan, deferred
compensation plan, hospitalization, vacation and sick leave, medical
or insurance plan, and also including any other benefit policy, plan
or other practice that under applicable law constitutes a benefit of
employment to which executive officers of BWI are generally entitled.
The Employee shall be further entitled to receive all perquisites to
which executive officers of BWI are generally entitled. The
Corporation and BWI retain the right to abolish or alter the terms of
any fringe benefit programs that either of them may establish.
1.1.3. Bonus
The Employee shall be entitled to an annual bonus, with
respect to each fiscal year of the Corporation, based upon the financial
performance of the Corporation and IV-I, Inc., the parent corporation of the
Corporation, ("IV-I") and National Pharmacy Providers, Inc., a wholly owned
subsidiary of IV-I ("NPP") (collectively the Corporation, IV-I and NPP are
referred to herein as the "Infusion Businesses"). The Employee's annual bonus
shall be equal to the sum of (a) four percent (4%) of the annual net income of
the Corporation before income taxes, amortization of goodwill, interest on the
$9,000,000 loan from Priority Healthcare Corporation to finance the acquisition
of the Infusion Services Division of ISD and the calculation of Employee's
bonus hereunder, plus (b) one percent (1%) of the unconsolidated separate net
income before income taxes of each of IV-I and of NPP (in each case as
determined in accordance with generally accepted accounting principles);
provided, however, that Employee shall be entitled to receive at least $150,000
as a bonus for the partial fiscal year ending December 31, 1996, at
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least $200,000 as a bonus for the fiscal year ending December 31,1997, and at
least $150,000 as a bonus for each of the fiscal years ending December 31,
1997, 1998 and 1999. Minimum bonus amounts will be paid prior to year-end and
the balance, if any, shall be paid within ninety (90) days after year-end. BWI
agrees not to allocate any overhead or other expenses to the Corporation, IV-I
and/or National Pharmacy Providers, Inc. in a manner inconsistent with its
prior practices. BWI or its wholly owned subsidiary, Priority Healthcare
Corporation, will provide sufficient funds to meet such capital requirements of
the Corporation as are set forth in a business plan to be adopted by the
Corporation and approved by BWI within one hundred twenty (120) days after the
date of this Agreement.
1.1.4. Stock Options
(a) On the date hereof (the "Transfer Date"), BWI shall
grant to the Employee pursuant to BWI's 1993 Stock Option and
Incentive Plan (the "Plan") an option to purchase 25,000 shares of
common stock, par value of $.01 per share, of BWI (the "BWI Common
Stock"). On each of the first, second, and third anniversaries of the
date hereof, BWI shall grant to Employee under the Plan (or any
successor plan) an option to purchase 25,000 shares of BWI Common
Stock (the total options to which Employee is entitled under this
Section 1.1.4 shall be referred to as the "Options"). The exercise
price for the Options shall be the fair market value of BWI Common
Stock on the respective grant dates and each of the Options shall vest
25% on each of the first four (4) anniversaries of the respective
grant dates. To the maximum extent permissible, the Options shall be
incentive stock options. The other terms of the Options shall be as
set forth in the grant letters attached hereto as Exhibit A-1 and
Exhibit A-2. BWI agrees to continue to register the BWI Common Stock
issuable upon the exercise of Options granted under the Plan on Form
S-8 (or any successor form).
(b) In the event that changes in the BWI Common Stock of
the type described by Section 10 of the Plan occur prior to any of the
anniversaries of the date hereof, the number and kind of securities as
to which BWI shall thereafter be obligated to grant an option or
options to the Employee pursuant to this Section 1.1.4 shall be
adjusted as appropriate as contemplated by Section 10 of the Plan as
if such options had already been granted to the Employee prior to the
date of such change in the BWI Common Stock.
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(c) BWI's obligations to issue options under this Section
1.1.4 are an integral part of this Agreement and BWI agrees never to
assert that the general disclaimer of Section 14 of the Plan to the
effect that BWI shall not bind itself to award shares under the Plan
invalidates or limits in any way BWI's obligations to Employee under
this Section 1.1.4.
1.2. Duties
The Employee shall perform the following duties:
(a) Such duties for the Corporation as are typically
performed by a chief executive officer and in addition shall provide
supervisory services to the infusion related businesses of IV-I and
NPP;
(b) serve in such additional capacities appropriate to
his responsibilities and skills as shall be designated by the
Corporation and agreed to by the Employee;
(c) carry out the other terms and conditions of this
Agreement diligently and in good faith.
Notwithstanding anything expressed or implied in this
Agreement to the contrary, the Employee shall not be required to perform any
services, duties or obligations that would violate any statute, law, ordinance,
rule or regulation or breach Employee's professional standard of conduct.
1.3. Extent of Service
The Employee shall carry out his duties under the general
supervision of the Board of Directors of the Corporation. The Employee shall
devote his full time, attention, knowledge, and skills solely to the business
and interest of the Corporation and the Infusion Businesses during normal
business hours, shall perform no acts contrary to the best interests of the
Corporation and the Corporation shall be entitled to all of the benefits,
profits or other results arising from or incident to all work, services, and
advice of the Employee; provided, however, that (a) the Employee, for his own
account and solely in his own personal interest, may engage in the practice of
medicine during two half-days (or any other time equivalent thereof) per week
and (b) consistent with the Employee's past practice, the Employee may spend up
to 20 percent of his time devoted to activities of the National Foundation for
Infectious Diseases and the Infectious Disease Society of America. Any
provision of this Agreement to the contrary notwithstanding, in no event shall
the Employee make any patient referrals, or recommend that physicians
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with whom the Employee is involved in a group practice make patient referrals,
in violation of the Fraud and Abuse Laws.
1.4. Expenses and Auto Allowance
The Corporation shall reimburse the Employee for all ordinary
and necessary business expenses incurred by him while carrying out his
employment responsibilities under this Agreement. The Corporation retains the
right to establish limits on the types or amounts of business expenses that the
Employee may incur. The Employee shall receive a monthly auto allowance of
$400, shall be reimbursed by the Corporation for such auto's gasoline and oil
charges and the Corporation will pay up to $900 annually for auto insurance on
such auto.
2. TERM OF EMPLOYMENT
2.1. Term of Employment
The "Term of Employment" as used herein during which, in
accordance with the terms of this Agreement, the Corporation will employ or
continue to employ the Employee in its business, and the Employee will work or
continue to work for the Corporation, shall be a period beginning the date
hereof, and ending 5 years after the date hereof (or any earlier date of
termination of the Employee's employment pursuant to the terms hereof or by
mutual agreement).
2.2. Termination
2.2.1. Employee's employment pursuant to this Agreement may
be terminated during the term of this Agreement only as follows:
(a) at any time by Employee without cause by giving
thirty (30) days advance written notice of his voluntary resignation
to the Board of Directors of the Corporation;
(b) at any time by Employee with cause (as defined below)
for such termination by giving written notice thereof to the
Corporation specifying therein the effective date of such termination
(which shall not be earlier than ten (10) days after the date the
Employee mails or otherwise gives such notice to the Corporation) and
a description of the circumstances or occurrences that the Employee
believes to constitute cause for terminating the Employee's
employment;
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(c) at any time by the Corporation without cause, by
giving thirty (30) days advance written notice to Employee;
(d) at any time by the Corporation with cause (as defined
below) for such termination by giving written notice thereof
to the Employee, specifying therein the effective date of
such termination (which shall not be earlier than ten (10)
days after the date the Corporation mails or otherwise gives
such notice to the Employee) and a description of the
circumstances or occurrences that the Corporation believes
to constitute cause for terminating the Employee's
employment; or
(e) upon Employee's death.
2.2.2. "Cause" for termination by the Corporation shall be
deemed to mean the following:
(a) the continuing failure of the Employee to
substantially perform any of the Employee's significant duties or
responsibilities hereunder (other than any such failure resulting from
the Employee's incapacity due to physical or mental illness) if such
failure is not corrected or cured within 15 days after demand for
substantial performance is made in writing upon the Employee by the
Corporation specifically identifying the manner in which the
Corporation believes the Employee has failed to substantially perform
one or more of the Employee's significant duties or responsibilities;
or
(b) any act that constitutes on the part of the Employee
common law fraud or theft, but only if such action resulted in, or was
intended to result in, a benefit to the Employee at the expense of the
Corporation; or
(c) the indictment of the Employee for, or conviction of
the Employee of, or the plea by the Employee of nolo contendere to, a
felony; or
(d) any continuing violation by the Employee in any
material respect of any of the Corporation's policies or of any term
or provision of this Agreement which, in either case, is not corrected
or abated by the Employee within fifteen (15) days after written
notice of such violation, describing same in reasonable detail, is
given by the Corporation to the Employee; or
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(e) Employee is unable, due to mental or physical
disability, to substantially perform the essential functions of the
Employee's duties and services specified in this Agreement for a
period of not less than three (3) consecutive months during any twelve
(12) month period.
2.2.3. "Cause" for termination by the Employee shall be
deemed to mean the following:
(a) the Corporation violates in any material respect any
of the terms or provisions of this Agreement and such violation is not
corrected or abated by the Corporation within fifteen (15) days after
written notice of such violation, describing same in reasonable
detail, is given by the Employee to the Corporation; or
(b) the Employee's duties and responsibilities to the
Corporation shall be substantially and materially diminished from the
Employee's duties and responsibilities to the Corporation as of the
date of this Agreement; or
(c) the Employee's title shall be changed from President
and Chief Executive Officer; or
(d) the Employee's office shall be relocated to a
location other than Xxxxxx County, Indiana or the counties contiguous
to Xxxxxx County, Indiana.
2.3. Compensation Upon Termination.
2.3.1. In the event that Employee's employment hereunder is
terminated by the Employee without cause (as provided in Section 2.2.1(a)), by
the Corporation with cause (as provided in Section 2.2.1(d)), or Employee's
death (as provided in Section 2.2.1(e)), Employee shall be entitled to receive
his base salary under Section 1.1.2 prorated to the date of termination plus a
prorata bonus under Section 1.1.3 based on the financial performance of the
Infusion Businesses or the pro rata minimum bonus under Section 1.1.3,
whichever is applicable, in either case for that portion of the fiscal year to
the date of termination (but otherwise calculated in accordance with Section
1.1.3). Such salary and bonus shall be paid to Employee (or, in the event of
Employee's death, to his estate), but no compensation (or other payments,
including payments under Section 3.1) in excess of such unpaid salary and bonus
amounts shall then be paid or payable to Employee (or to his estate) under this
Agreement.
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2.3.2. In the event that Employee's employment hereunder is
terminated by Employee with cause (as provided in Section 2.2.1(b)) or
by the Corporation without cause (as provided in Section 2.2.1(c)),
Employee shall have no further obligations hereunder, and Employee
shall continue to be paid the base salary and the bonus amounts
described in Sections 1.1.2 and 1.1.3, to the same extent as if the
Term of Employment had not ended on a date that is prior to five (5)
years after the date hereof.
2.3.3. In the event of Employee's death at any time following
termination of the Term of Employment, all termination amounts payable
under this Section 2.3 shall be paid to the Employee's estate to the
same extent and in the same manner as if the Employee had not died.
2.3.4. The obligations of the Corporation under this Section
2.3 shall survive the termination or expiration of the Term of
Employment.
2.3.5. Any options held by Employee at the time of
termination shall be governed by the terms thereof.
3. COVENANTS
3.1. Covenant Not to Compete; Covenant Not to Enter into Competing
Business
3.1.1.
(a) During the Term of Employment and for five years
thereafter, the Employee shall not solicit, hire or contract with any
healthcare-related employees of the Corporation Group or any past
healthcare-related employees of the Corporation Group who were
employed by the Corporation Group within twelve (12) months prior to
Employee's departure.
(b) During the Term of Employment and for a period of
five years thereafter, Employee shall not, directly or indirectly,
reveal or disclose to third parties any Trade Secrets (as hereinafter
defined) of the Corporation Group, which are not, at the time in
question, in the public domain without having become so in violation
of this Agreement, except as authorized by the Corporation. For
purposes of this Agreement, the term "Trade Secret" includes not only
that confidential or proprietorial information defined as a "Trade
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Secret" under the Indiana Trade Secrets Act, I.C. Section
24-2-3-1 et seq. (the "Act"), but also that information which
possesses independent economic benefit to the Corporation Group from
not being generally known by other persons who can obtain economic
benefit from its disclosure or use. The Employee covenants that he
will, at all times, conform his conduct to the requirements of the Act
and will not misappropriate (e.g., use or disclose to any third party)
any Trade Secret of the Corporation Group. The Employee recognizes
that the penalties for a Trade Secret violation may include
disgorgement of profits, payment of royalties, compensatory damages,
punitive damages, and attorneys' fees.
(c) Notwithstanding any provision of this Section 3.1 to
the contrary, during the Term of Employment and for a period of five
years thereafter, the Employee shall not, without the written consent
of the Corporation (which consent the Corporation may give or withhold
in its sole discretion), directly or indirectly (i) own any interest
in (except the ownership of less than five percent of the capital
interest in a publicly traded entity or indirect ownership of less
than five percent as a participant in an employee benefit plan) or
manage (whether as an owner, employee, consultant or other agent of
any type whatsoever) a business identical or substantially similar to
the healthcare related business of the Corporation Group or any parts
thereof in the State of Indiana or in any city or county in which the
Corporation Group provides infusion therapy services, or (ii) except
where the failure to do so without first obtaining the Corporation's
written consent would constitute a health risk to the potential
recipient, attempt to sell, offer, or provide to any person or entity
which is a past or present supplier, client, patient or customer of
the Corporation Group a product or service substantially similar to
products or services offered by the Corporation Group; provided,
however, that the foregoing is not intended to prohibit or restrict,
and shall not be construed as prohibiting or restricting, the Employee
from engaging in the practice of medicine substantially in the manner
in which the Employee engaged in the practice of medicine immediately
prior to the commencement of the Term of Employment or in any other
manner that does not contravene the foregoing restrictive covenants.
By way of explanation and amplification of the foregoing, the Employee
is a physician who, in the course of his medical practice, refers
patients to, and manages the
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care of patients who are receiving services from, various
sources that provide infusion services and other services identical or
similar to those provided by the Corporation Group. Nothing in this
Agreement is intended to prohibit the Employee, in his capacity as a
physician, from continuing to refer new patients to and manage the
care of patients who are receiving services from other infusion
centers or other businesses that compete with the Corporation Group.
It is understood that the Employee may, in his capacity as a
physician, be required to become involved as a physician and health
care provider in or otherwise establish working relationships of
various types with managed care plans or other health care provider
groups or networks that are or may become providers of infusion
services or other services similar to those provided by the
Corporation Group, and that if he is required to be an employee
(solely in the capacity as a physician) of any such plan or group he
may become a participant in one or more employer-sponsored benefit
plans that may own employer securities (which would be a circumstance
that the Employee could not control). The establishment and
maintenance of such relationships in the course of the conduct of the
medical practice of the Employee is not intended to be prohibited by
the foregoing restrictive covenants. Rather, such restrictive
covenants are intended to prohibit the Employee from becoming
financially interested as an owner (or the economic equivalent) in, or
from becoming involved in a management position (as opposed to a
position in which the Employee is merely rendering medical care and
advice) with, a business identical or substantially similar to the
health care related business of the Corporation Group and from
soliciting past or present suppliers, clients, patients or customers
of the Corporation Group for a competitor.
(d) The covenants contained in this Section 3.1 shall be
construed as a series of separate and severable covenants which are
identical in terms except for geographic coverage. The Employee, BWI,
and the Corporation agree that if in any proceeding, the tribunal
shall refuse to enforce fully any covenants contained herein because
such covenants cover too extensive a geographic area or too long a
period of time or for any other reason whatsoever, any such covenant
shall be deemed amended to the extent (but only to the extent)
required by law. Each party acknowledges and agrees that the services
to be rendered by Employee to the Corporation hereunder are of a
special and unique character. Each party shall
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have the right to injunctive relief, in addition to all of its other
rights and remedies at law or in equity, to enforce the provisions of
this Agreement and the prevailing party shall be entitled to be
reimbursed by the losing party for all of the prevailing party's
attorneys' fees and other expenses incurred in connection with
enforcing its rights under this Agreement or in resisting an
unsuccessful enforcement attempt by the other party.
(e) Except for the infusion centers and infusion therapy
services of IV-I and NPP existing on the date of this Agreement, BWI
shall not, nor shall BWI cause, permit or otherwise enable or
encourage any subsidiary, division or affiliate of BWI other than the
Corporation to, directly or indirectly, own, operate or develop any
infusion center or provide any infusion therapy services.
(f) In consideration for the noncompetition obligations
of Employee hereunder, the Corporation shall pay to Employee $600,000
during the first year of this Agreement, $500,000 during the second
year of this Agreement, $300,000 during the third year of this
Agreement, $200,000 during the fourth year of this Agreement, and
$100,000 during the fifth year of this Agreement. Each of the
foregoing annual amounts shall be paid in equal monthly installments
payable on or before the eighth day of each month commencing February
8, 1996. Notwithstanding any other provision of this Agreement, any
payments thereafter owed to Employee under this Section 3.1.1(f) shall
cease if Employee's employment under this Agreement is terminated by
the Employee pursuant to Section 2.2.1(a) or by the Corporation
pursuant to Section 2.2.1(d).
3.2. Survival
The obligations of Employee, the Corporation, and BWI under
this Section 3 shall survive the termination or expiration of the Term of
Employment.
4. BOARDS OF DIRECTORS
For a period of five years beginning on the date hereof, (a)
BWI and the Corporation shall each use its best efforts to cause Employee to be
elected to the Board of Directors of the Corporation and (b) BWI shall use its
best efforts to cause Employee to be elected to its Board of Directors.
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5. REPRESENTATIONS AND WARRANTIES
The Employee represents and warrants to the Corporation that
neither the execution and delivery of this Agreement nor the carrying out of
any of the transactions contemplated hereby will in any respect result in any
violation of or be in conflict with any term or provision of any agreement,
document or instrument to which the Employee is a party or by which he is
bound. The Employee agrees not to divulge to the Corporation any information
that would violate any such agreement, document or instrument nor to divulge to
the Corporation any trade secrets of prior employers.
6. INDEMNIFICATION
The Corporation agrees to indemnify the Employee to the
maximum extent permitted under applicable law for any liability incurred by
Employee in his capacity as an officer or director of the Corporation. The
Corporation shall use its commercially reasonable best efforts to obtain
director's and officer's liability insurance with coverage relating to all acts
and omissions alleged to have occurred during the Term of Employment. BWI
agrees to indemnify the Employee to the maximum extent permitted under
applicable law for any liability incurred by Employee in his capacity as a
director of BWI. BWI shall use its commercially reasonably best efforts to
obtain or continue in effect directors' and officers' liability insurance with
coverage relating to all acts and omissions alleged to have occurred during the
time the Employee is a director of BWI. The obligations of the Corporation and
BWI under this Section 6 shall survive the termination or expiration of the
Term of Employment.
7. MISCELLANEOUS
7.1. Additional Actions and Documents
Each of the parties hereto hereby agrees to take or cause to
be taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents, and will obtain such
consents, as may be necessary or as may be reasonably requested in order to
fully effectuate the purposes, terms and conditions of this Agreement.
7.2. Assignment
The parties shall not assign their respective rights and
obligations under this Agreement, in whole or in part, whether by operation of
law or otherwise, without the prior written consent of the other party, and any
such assignment
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contrary to the terms hereof shall be null and void and of no force
and effect.
7.3. Entire Agreement; Amendment
This Agreement (together with various documents and agreements
being executed concurrently herewith) constitutes the entire agreement among
the parties hereto with respect to the transactions contemplated herein, and it
and they supersede all prior oral or written agreements, commitments or
understandings with respect to the matters provided for herein and therein. No
amendment, modification or discharge of this Agreement shall be valid or
binding unless set forth in writing and duly executed and delivered by the
party against whom enforcement of the amendment, modification, or discharge is
sought.
7.4. Waiver
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any
other documents furnished in connection with or pursuant to this Agreement
shall impair any such right, power or privilege or be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any
such right, power or privilege shall preclude the further exercise of such
right, power or privilege, or the exercise of any other right, power or
privilege. No waiver shall be valid against any party hereto unless made in
writing and signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
7.5. Governing Law
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of the State of Indiana (excluding the
choice of law rules thereof).
7.6. Notices
All notices, demands, requests, or other communications that
may be or are required to be given, or sent by any party to any other party
pursuant to this Agreement shall be in writing and shall be hand delivered,
sent by overnight courier or mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid, or transmitted by telegram,
telecopy or telex, addressed as follows:
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(i) If to the Corporation:
c/o Bindley Western Industries, Inc.
Xxxxxxx X. XxXxxxxxx
Executive Vice President and General Counsel
00000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
(ii) If to the Employee:
Xxxxxx X. Xxxxx, M.D.
0000 Xxxxx 000 Xxxx
Xxxxxxxxxx, XX 00000
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request, or communication that shall be hand
delivered, sent, mailed, telecopied or telexed in the manner described above, or
that shall be delivered to a telegraph corporation, shall be deemed
sufficiently given, served, sent, received or delivered for all purposes at
such time as it is delivered to the addressee (with the return receipt, the
delivery receipt, or (with respect to a telecopy or telex) the answerback being
deemed conclusive, but not exclusive, evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
7.7. Headings
Article and Section headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning construction or scope of any of the provisions hereof.
7.8. Execution in Counterparts
To facilitate execution, this Agreement may be executed in as
many counterparts as may be required. It shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
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7.9. Limitation on Benefits
The covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns.
7.10. Binding Effect
Subject to any provisions hereof restricting assignment, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors, heirs, executors, administrators, legal
representatives and assigns.
7.11. No Mitigation
The Employee shall not be required to mitigate damages by
seeking employment elsewhere.
7.12. BWI Guaranty
Until such time as the Corporation is no longer a direct or
indirect subsidiary of BWI, BWI shall guarantee all payments due to Employee
under this Agreement.
IN WITNESS WHEREOF, BWI and the Corporation have caused this
Agreement to be executed by their respective duly authorized officers, and the
Employee has set his hand as of the date first above written.
NATIONAL INFUSION SERVICES, INC.
By:/s/ Xxxxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxxxx X. XxXxxxxxx
--------------------------
Title: Exec. V. P. & Sec.
-------------------------
/s/ Xxxxxx X. Xxxxx M.D.
------------------------------
Xxxxxx X. Xxxxx, M.D.
For the purposes of Sections 1.1.2(b),
1.1.3, 1.1.4, 3.1.1(d) and
(e), 3.2, 4, 6 and 7.12 only
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BINDLEY WESTERN INDUSTRIES, INC.
By: /s/ Xxxxxxx X. XxXxxxxxx
------------------------
Name: Xxxxxxx X. XxXxxxxxx
------------------------
Title: Exec. V. P. & General Counsel
-------------------------------
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STOCK OPTION AGREEMENT
FOR INCENTIVE OPTIONS GRANTED UNDER
BINDLEY WESTERN INDUSTRIES, INC.
1993 STOCK OPTION AND INCENTIVE PLAN
------------------------------------
THIS STOCK OPTION AGREEMENT has been entered into as of
the 8th day of February, 1996 between BINDLEY WESTERN INDUSTRIES,
INC., an Indiana corporation ("Company"), Xxxxxx X. Xxxxx, an
employee of the Company or one of its affiliates ("Optionee"),
pursuant to the Company's 1993 stock Option and Incentive Plan
("Plan") and evidences and sets forth certain terms of an
Incentive Stock Option for _______ shares of the Company's Common
Stock granted to the Optionee as of the date of this Agreement
("Option").
Section 1. Receipt of Plan; General Terms of Plan and
Option. The Optionee acknowledges receipt of a copy of the Plan.
This Agreement and the Option are subject to the terms and
conditions of the Plan, all of which are incorporated herein by
reference.
Section 2. Option Price. The Option is exercisable at a price of
$__________ for each share subject to it, which may be paid in cash, by
delivery to the Company of certificates representing shares of the Company's
common stock having a fair market value equal to the exercise price, or by
delivery of such shares and cash.
Section 3. Option Period. The Option is exercisable
in whole or in part at any time commencing one (1) year from the
date hereof and expiring ten (10) years from the date hereof. In
no instance may the Option or any portion thereof be exercised
later than ten (10) years from the date hereof.
Section 4. Transferability. The Option may not be
transferred by the Optionee except as expressly permitted by the
terms of the Plan.
Section 5. Termination of Option. In the event that
the Optionee is dismissed by the Company for cause, or the
Optionee voluntarily terminates employment for any reason other
than death, disability, or retirement at the normal retirement
age, all rights under the Option and this Agreement shall expire
immediately. In the event of Optionee's death, the Optionee's
estate or heirs may exercise the Option in accordance with its
terms. In the event that the Optionee's employment with the
Company is terminated for any other reason, the Optionee may,
subject to and as provided by the Plan, exercise the Option to
the extent the Optionee was entitled to exercise the Option on
the date of termination.
EXHIBIT A-1
18
IN WITNESS WHEREOF, this Stock Option Agreement has
been executed by the undersigned, thereunto duly authorized, as
of the date first above written.
BINDLEY WESTERN INDUSTRIES, INC.
By___________________________________
X___________________________________
OPTIONEE
Please sign by the "X" and return to Xxx Xxxx in Indianapolis.
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19
STOCK OPTION AGREEMENT
FOR INCENTIVE OPTIONS GRANTED UNDER
BINDLEY WESTERN INDUSTRIES, INC.
1993 STOCK OPTION AND INCENTIVE PLAN
------------------------------------
THIS STOCK OPTION AGREEMENT has been entered into as of the 8th day of
February, 1996 between BINDLEY WESTERN INDUSTRIES, INC., an Indiana corporation
("Company"), Xxxxxx X. Xxxxx, an employee of the Company or one of its
affiliates ("Optionee"), pursuant to the Company's 1993 Stock Option and
Incentive Plan ("Plan") and evidences and sets forth certain terms of
Nonqualified Stock Option for _____ Shares of the Company's Common Stock
granted to the Optionee as of the date of this Agreement ("Option").
Section 1. Receipt of Plan; General Terms of Plan and
Option. The Optionee acknowledges receipt of a copy of the Plan.
This Agreement and the Option are subject to the terms and
conditions of the Plan, all of which are incorporated herein by
reference.
Section 2. Option Price. The Option is exercisable at
a price of $________ for each Share subject to it, which may be
representing shares of the Company's common stock having a fair
market value equal to the exercise price, or by delivery of such
shares and cash.
Section 3. Option Period. The Option is exercisable
in installments as follows: to the extent of 25% of the number
of shares originally covered thereby (adjusted as appropriate
pursuant to Section 10 of the Plan in the event of any changes in
capitalization or otherwise requiring an adjustment under
Section 10 of the Plan), at any time beginning on the first
anniversary hereof and ending ten years from the date hereof and
to the extent of an additional 25% of the number of shares
originally covered by the Option (adjusted as appropriate
pursuant to Section 10 of the Plan in the event of any changes in
capitalization or otherwise requiring an adjustment under
Section 10 of the Plan) on each subsequent anniversary hereof
until the Option is exercisable in full and ending in each case
ten (10) years from the date hereof. In addition, the Option may
become exercisable prior to the period set forth above in the
event of a change in control or certain other events involving
the Company, as provided in the Plan. In no instance may the
Option or any portion thereof be exercised later than ten years
from the date hereof.
Section 4. Transferability. The Option may not be
transferred by the Optionee except as expressly permitted by the
terms of the Plan.
EXHIBIT A-2
20
Section 5. Termination of Option. In the event that
the Optionee is dismissed by the Company for cause, or the
Optionee voluntarily terminates employment for any reason other
than death, disability, or retirement at the normal retirement
age, all rights under the Option and this Agreement shall expire
immediately. In the event of Optionee's death, the Optionee's
estate or heirs may exercise the Option in accordance with its
terms. In the event that the Optionee's employment with the
Company is terminated for any other reason, the Optionee may,
subject to and as provided by the Plan, exercise the Option to
the extent the Optionee was entitled to exercise the Option on
the date of termination.
IN WITNESS WHEREOF, this Stock Option Agreement has
been executed by the undersigned, thereunto duly authorized, as
of the date first above written.
BINDLEY WESTERN INDUSTRIES, INC.
By _______________________________
X________________________________
OPTIONEE
Please sign by the "X" and return to Xxx Xxxx in Indianapolis.
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