EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is effective as of December 1,
1996 (the "Effective Date"), by and between Advance ParadigM, Inc. (the
"Company"), and Xxxxxx X. Xxxxxxx, Xx. (the "Employee").
WHEREAS, Employee is a senior manager of the Company and is expected to
make significant contributions to the profitability, growth and financial
strength of the Company;
WHEREAS, the Company desire to assure both the present and future
continuity of management of the Company and desire to establish certain minimum
compensation rights of the Employee; and
WHEREAS, the Company and Employee desire to enter into this Agreement
pursuant to which the Company will employ Employee in the capacity, for the
period and on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs Employee and
Employee hereby accepts such employment in the capacity of Executive Vice
President of the Company and as President and Chief Executive Officer of Advance
ParadigM Clinical Services, Inc., the Company's wholly-owned subsidiary, to act
in accordance with the terms and conditions hereinafter set forth. During the
term of this Agreement, Employee agrees that these positions will be his full-
time employment, that he will devote his best efforts and all of his business
time, attention and skills to the business of the Company and that he will
perform such duties, functions, responsibilities and authority in connection
with the foregoing as are from time to time delegated to Employee by the Board
of Directors of the Company.
2. TERM. The employment of Employee shall commence on the date hereof
and shall end on the third anniversary hereof (the "Term").
3. COMPENSATION. In consideration of the services to be rendered by
Employee to the Company hereunder, the Company hereby agrees to pay or otherwise
provide Employee the following compensation and benefits, it being understood
that the Company shall have the right to deduct therefrom all taxes which may be
required to be deducted or withheld therefrom under any provision of applicable
law (including but not limited to Social Security payments, income tax
withholding and other required deductions now in effect or which may become
effective by law any time during the Term):
(a) SALARY. Employee shall receive an annual salary of One Hundred
Seventy-Five Thousand Dollars ($175,000), with such increases therein as may be
determined by the Board from time to time in its sole discretion ("Base
Salary"), to be paid in equal installments not less frequently than monthly in
accordance with the Company's salary payment practices in effect from time to
time for senior managers of the Company. The Base Salary may be reviewed by the
Board from time to determine any increases to the Base Salary; provided that the
annual increase shall be, at a minimum $10,000.
(b) BONUS PAYMENTS. In addition to the Base Salary, Employee shall
be entitled to receive, and the Company shall pay, bonuses to the Employee under
the Company's executive incentive compensation plan as approved by the Board of
Directors.
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(c) BENEFIT PLANS. Employee shall be entitled to participate in any
health, accident, disability and life insurance programs, and any other fringe
benefit program (including a 401(k) savings plan), which the Company has adopted
or may adopt and implement for the benefit of the Company's employees.
Notwithstanding the foregoing, however, nothing contained herein shall be
construed as an obligation of the Company to implement any such program, or, if
implemented, to maintain any such program for any period of time for any
employee.
(d) FRINGE BENEFITS. The Company shall provide Employee with an
automobile allowance of $700 per month and shall provide a country club
membership at a country club that is mutually acceptable to the Employee and the
Company.
(e) EXPENSES. Employee shall be entitled to receive reimbursement
for all reasonable expenses incurred by him in connection with the fulfillment
of his duties hereunder; PROVIDED, HOWEVER, that Employee has complied with all
policies and procedures relating to the reimbursement of such expenses as shall,
from time to time, be established by the Company.
(f) VACATION AND SICK LEAVE. During the Term of employment, Employee
shall be permitted to take vacations with such frequency and of such duration as
are consistent with the executive vacation policies of the Company in effect on
the date of this Agreement so long as the absence of Employee does not interfere
in any material respect with the performance by Employee of Employee's duties
hereunder. In any event, Employee shall be entitled to not less than 20
business days of vacation during each of the fiscal years ending during the Term
of employment. Employee shall also be entitled to sick leave according to the
sick leave policy which the Company may adopt from time to time.
(g) QUALIFIED STOCK OPTION TO EMPLOYEE. As further consideration for
Employee's continuing employment by the Company under the terms of this
Agreement, subject to the terms and conditions of the Company's 1993 Incentive
Stock Option Plan ("ISOP"), the Company has granted to Employee an options set
forth below:
(i) On October 7, 1996, Employee was granted an incentive option to
purchase 37,500 shares of the Common Stock of the Company with an exercise price
of $9.00 per share. The option is subject to and granted under the ISOP. The
option shall vest and become exercisable as to twenty percent (20%) of the total
shares on each of the first five anniversaries of the date of grant; provided,
however, that immediately prior to the consummation of any sale to or merger
with an outside entity gaining 50% or greater ownership of the Company, the
options shall become, without further act or deed, exercisable as to 100% of the
shares.
(ii) On December 23, 1996, Employee was granted an incentive option to
purchase 20,000 shares of the Common Stock of the Company with an exercise price
of $12.75 per share. The option is subject to and granted under the ISOP. The
option shall vest and become exercisable as to 33-1/3% of the total shares
represented thereby on each of the first three anniversaries of the date of
grant; provided however that immediately prior to the consummation of any sale
to or merger with an outside entity gaining 50% or greater ownership of the
Company, the option shall become without further act or deed exercisable as to
100% of the shares.
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4. TERMINATION
(a) DEATH OR DISABILITY. This Agreement shall terminate automatically
upon the Employee's death. If the Company determines in good faith that the
Disability of the Employee has occurred (pursuant to the definition of
"Disability" set forth below), it may give to the Employee written notice of its
intention to terminate the Employee's employment. In such event, the Employee's
employment with the Company shall terminate effective on the 30th day after
receipt of such notice by the Employee (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the Employee shall not
have returned to full-time performance of the Employee's duties. For purposes
of this Agreement, "Disability" means disability which, at least 26 weeks after
its commencement, is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Employee or the
Employee's legal representative (such agreement as to acceptability not to be
withheld unreasonably).
(b) CAUSE. The Company may terminate the Employee's employment for
"Cause." For purposes of this Agreement, "Cause" means:
(i) an act or acts of personal dishonesty taken by the Employee at
the expense of the Company,
(ii) a material violation or repeated violations by the Employee of
the Employee's obligations under Section 1 of this Agreement which are
demonstrably willful or deliberate on the Employee's part and which are not
remedied in a reasonable period of time after receipt of written notice
from the Company, or
(iii) the conviction of the Employee of a felony.
(c) GOOD REASON. The Employee's employment may be terminated by the
Employee for Good Reason. For purposes of this Agreement, "Good Reason" means:
(i) the assignment to the Employee of any duties inconsistent in any
respect with the Employee's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 1 of this Agreement, or any other action by the
Company which results in a diminution in such position, authority, duties
or responsibilities, excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Employee;
(ii) any material failure by the Company to comply with any of the
provisions of Section 3 of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given
by the Employee;
(iii) the Company's requiring the Employee's services to be
performed at any office or location more than thirty-five (35) miles from
the location where the Employee was employed immediately preceding the
Effective Date, except for travel reasonably required in the performance of
the Employee's responsibilities;
(iv) any purported termination by the Company of the Employee's
employment otherwise than as expressly permitted by this Agreement.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause or by
the Employee for Good Reason shall be communicated by Notice of Termination to
the other
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party hereto given in accordance with Section 10 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) sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee'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 fifteen (15) days after the giving of such
notice).
(e) DATE OF TERMINATION. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; PROVIDED, HOWEVER, that
(i) if the Employee's employment is terminated by the Company other
than for Cause or Disability, the Date of Termination shall be the date on
which the Company notifies the Employee is such termination, and
(ii) if the Employee's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the
Employee or the Disability Effective Date, as the case may be.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION
(a) DEATH. If the Employee's employment is terminated by reason of
the Employee's death, this Agreement shall terminate without further obligations
to the Employee's legal representatives under this Agreement, other than those
obligations accrued or earned and vested (if applicable) by the Employee as of
the Date of Termination, including, for this purpose
(i) the Employee's full Base Salary through the Date of
Termination at the rate in effect on the Date of Termination or, if
higher, at the highest rate in effect at any time from the 90-day
period preceding the Date of Termination (the "Highest Base Salary"),
(ii) the product of the Annual Bonus paid to the Employee for
the last full fiscal year and a fraction, the numerator of which is
the number of days in the current fiscal year through the Date of
Termination, and the denomination of which is 365, and
(iii) any compensation previously deferred by the Employee
(together with any accrued interest thereon) and not yet paid
by the Company and any accrued vacation pay not yet paid by the
Company (such amounts specified in clauses (i), (ii) and (iii) are
hereinafter referred to as "Accrued Obligations").
All such Accrued Obligations shall be paid to the Employee's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary notwithstanding, the
Employee's family shall be entitled to receive benefits at least equal to the
most favorable benefits provided by the Company to surviving families of
employees of the Company under such plans, programs, practices
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and policies relating to family death benefits, if any, in effect at the time
of Employee's death.
(b) DISABILITY. If the Employee's employment is terminated by reason of
the Employee's Disability, this Agreement shall terminate without further
obligations to the Employee, other than those obligations accrued or earned and
vested (if applicable) by the Employee as of the Date of Termination, including
for this purpose, all Accrued Obligations. All such Accrued Obligations shall
be paid to the Employee in lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary notwithstanding, the
Employee shall be entitled after the Disability Effective Date to receive
disability and other benefits at least equal to the most favorable of those
provided by the Company to disabled employees or their families in accordance
with such plans, programs, practices and policies of the Company in effect at
any time during the 90-day period immediately preceding the Effective Date or,
if more favorable to the Employee and the Employee's family, as in effect at any
time thereafter with respect to other key employees of the Company and their
families.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If the Employee's employment shall
be terminated for Cause, the Company's obligations to the Employee shall
terminate other than the obligation to pay to the Employee the Highest Base
Salary through the Date of Termination plus the amount of any compensation
previously deferred by the Employee (together with accrued interest thereon).
If the Employee terminates employment other than for Good Reason, the Company's
obligations to the Employee shall terminate, other than those obligations
accrued or earned and vested (if applicable) by the Employee through the Date of
Termination, including for this purpose, all Accrued Obligations. All such
Accrued Obligations shall be paid to the Employee in a lump sum in cash within
30 days of the Date of Termination.
(d) GOOD REASON; OTHER THAN FOR CAUSE OR DISABILITY. If, during the Term,
the Company shall terminate the Employee's employment other than for Cause,
Disability, or death or if the Employee shall terminate his employment for Good
Reason, the Company shall continue in accordance with the Company's normal
payroll procedures to pay Employee his Highest Base Salary for a period of one-
year from the Date of Termination or for the remaining term of this Agreement,
whichever period is shorter (the "Severance Period"). Any amounts payable to
Employee under this Section 5(d) shall be reduced and offset by the amount of
any compensation received by Employee for other employment during the Severance
Period. During the Severance Period Employee shall use his best efforts to find
employment consistent with the covenants of Employee in Sections 8 and 9
hereof. During the Severance Period, or such longer period as any plan,
program, practice or policy may provide, the Company shall continue benefits to
the Employee and the Employee's family at least equal to those which would have
been provided to them in accordance with the plans, programs, practices and
policies described in Section 3(c) of this Agreement if the Employee's
employment had not been terminated.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Employee's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company and for which the Employee may qualify, nor shall anything herein limit
or otherwise affect such rights as the Employee may have under any stock option
or other agreement with the Company. Amounts which are vested benefits or which
the Employee is otherwise entitled to receive under any plan, policy, practice
or program of the Company at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program.
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7. FULL SETTLEMENT. Except as provided in Section 5(d) hereof, the
Employee shall not be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Employee under any of
the provisions of this Agreement. The Company agrees to pay, to the full extent
permitted by law, all legal fees and expenses which the employee may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the
Company or others of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance thereof, plus in
each case interest at the applicable Federal rate provided for in Section
7872(f)(2) of the Internal Revenue Code of 1986, as amended.
8. RESTRICTIVE COVENANTS. Employee and the Company agree that the
Company would suffer irreparable harm and incur substantial damage if Employee
were to enter into Competition (as defined herein) with the Company. Therefore,
in order for the Company to protect its legitimate business interests, Employee
agrees as follows:
(a) Without the prior written consent of the Company, Employee shall
not during the period of employment with the Company, directly or indirectly,
invest or engage in any business that is Competitive (as defined herein) with
the pharmacy benefit management business (including without limitation clinical,
formulary/rebate, mail order or claim processing services), disease management,
telephonic case management or demand management or other business in which the
Company has been actively engaged during the Term of Employee's employment (the
"Business") or accept employment or render services to a Competitor (as defined
herein) of the Company as a director, officer, agent, employee, independent
contractor or consultant, or solicit or attempt to solicit or accept business
that is Competitive with the Business of the Company, except that Employee may
own up to one percent (1%) of any outstanding class of securities of any company
registered under Section 12 of the Securities and Exchange Act of 1934.
(b) Without the prior written consent of the Company, for a period of
two (2) years from the Date of Termination for Cause or for a period of one (1)
year from the Date of Termination for any reason other than Cause, Employee
shall not, either directly or indirectly, (i) invest or engage in any business
that is Competitive with the Business of the Company, except that Employee may
own up to one percent (1%) of any outstanding class of securities of any company
registered under Section 12 of the Securities and Exchange Act of 1934, as
amended, (ii) accept employment with or render services to a Competitor of the
Company as a director, officer, agent, employee, independent contractor or
consultant or (iii) solicit, attempt to solicit or accept business competitive
with the Business of the Company from any of the customers of the Company at the
time of his termination or within twelve (12) months prior thereto or from any
person or entity whose business the Company was soliciting at such time. In the
event the Company is obligated to make payments to Employee during the Severance
Period pursuant to Section 5(d) hereof, on the day immediately following the
termination of the Company's obligation to make such payments, clauses (i) and
(ii) of this Section 8(b) shall be without further force and effect.
(c) Upon termination of his employment with the Company, and for a
period of twelve (12) months thereafter, Employee shall not, either directly or
indirectly, solicit business, directly or indirectly from any person or entity
to whom the Company has sold its services, nor shall the Employee contact,
communicate with, or solicit in any manner whatsoever the employment of an
employee of the Company.
(d) The Company and Employee agree that the consideration for
Employee's post-employment covenant not to compete is the overall consideration
provided for the benefit of Employee pursuant to this Agreement, including but
not limited to the continued employment of Employee. The primary purpose of
this covenant is the Company
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legitimate interest in protecting its economic welfare and business goodwill.
The Company and Employee further agree that this covenant shall in no way be
construed as a mere limitation on competition nor shall it be construed as a
restraint on Employee's right to engage in a common calling.
(e) Employee acknowledges that the foregoing limitations are
reasonable and properly required for the adequate protection of the Business of
the Company and that in the event any such limitation is found to be
unreasonable by a court of competent jurisdiction, Employee agrees to the
reduction of such limitation to the extent it shall appear reasonable to such
court.
(f) For purposes of this Agreement, a business or activity is in
"Competition" or "Competitive" with the Business of the Company if it involves,
and a person or entity is a "Competitor," if that person or entity is engaged
in, or about to become engaged in, the same business as the Business of the
Company or any segments thereof in the continental United States of America.
9. CONFIDENTIALITY. For purposes of this Agreement, "Confidential
Information and Trade Secrets" shall mean all information, ideas, know how,
trade secrets, processes, computer software or programs and related
documentation, methods, practices, fabricated techniques, technical plans,
customer lists, pricing techniques, marketing plans, financial information and
all other compilations of information which relate to the Business of, and are
owned by, the Company, which were not known generally to others engaged in the
Business of the Company and which the Company has taken affirmative actions to
protect from public disclosure or which do not exist in the public domain.
Employee acknowledges that, during his term of employment with the Company, he
shall have access to and become familiar with Confidential Information and Trade
Secrets that are owned by the Company. Employee shall not use, in any way, or
disclose any of the Confidential Information and Trade Secrets, directly or
indirectly, either during the term of his employment or at anytime thereafter,
except as required in the course of his employment. All files, records,
documents, information, data and similar items and documentation relating to the
Business of the Company, whether prepared by Employee or otherwise, coming into
Employee's possession, shall remain the exclusive property of the Company unless
owned by Employee. The obligations of this Section 9 are continuous and shall
survive the termination of Employee's employment with the Company.
10. NOTICES. Any notice or other communication required or permitted to
be given hereunder shall be in writing and deemed to have been given when
delivered in person or when dispatched by telegram or electronic facsimile
transfer (confirmed in writing by mail, registered or certified, return receipt
requested, postage prepaid, simultaneously dispatched) to the addresses at the
addresses specified below:
If to Employee: Xxxxxx X. Xxxxxxx, Xx.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxxxx
Xxxxxx, Xxxxx & Bockius
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Phone No.: 202/000-0000
Fax No.: 202/000-0000
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If to the Company: Advance ParadigM, Inc.
000 X. Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Phone No.: 972/000-0000
Fax No.: 972/000-0000
or to such other address or fax number as either party may from time to time
designate in writing to the other.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto relating to the subject matter hereof, and supersedes
all prior agreements and understandings, whether oral or written, with respect
to the same. No modification, alteration, amendment or recision of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by the parties hereto.
12. GOVERNING LAW. This Agreement and the rights and duties of the
parties hereunder shall be governed by, construed under and enforced in
accordance with the laws of the State of Maryland.
13. ASSIGNMENT. This Agreement shall inure to the benefit or and be
binding upon the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns. Subject to the prior written
consent of Employee, the rights, duties and obligations under this Agreement are
assignable by the Company to a successor of all or substantially all of the
business or assets of the Company. The rights, duties and obligations of
Employee under this Agreement shall not be assignable.
14. SEVERABILITY. The parties hereto further agree that if at any time it
shall be determined that the restrictions contained in Section 8 or 9 are
unreasonable as to time or area, or both, by any court of competent
jurisdiction, the Company shall be entitled to enforce this Agreement for such
period of time and within such area as may be determined to be reasonable by
such court and the court shall have the authority to construe reform and enforce
the terms of this Agreement for the benefit of the Company to a maximum extent
possible. It is the intent of the parties hereto that the provisions hereof be
enforceable to the fullest extent permitted by applicable law. This Agreement
may be enforced by the Company or any of its affiliates engaged in the Business.
15. SURVIVAL. No termination of Employee's employment by any of the
parties hereto shall reduce or terminate Employee's covenants and agreements in
Section 8 and 9 hereto.
16. REMEDIES. Employee and the Company recognize that the services to be
rendered under this Agreement by Employee are special, unique, and of
extraordinary character, and that in the event of a breach by Employee of the
terms and conditions of Sections 8 and 9 hereof, the Company shall be entitled,
if it so elects, to institute and prosecute proceedings in any court of
competent jurisdiction, either in law or in equity, to obtain damages for any
breach thereof or to enforce the specific performance thereof by Employee, or to
enjoin Employee from performing services for any other person, firm, or
corporation engaged in activities Competitive with the Business of the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
ADVANCE PARADIGM, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and CEO
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------
Xxxxxx X. Xxxxxxx, Xx.
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