EXHIBIT 10.16
EXECUTIVE SEVERANCE AGREEMENT
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This Executive Severance Agreement (the "Agreement") is made and entered
into as of this _28_ day of June, 1996, by and between Option Care, Inc., a
Delaware corporation (the "Company") and Xxxxx X. Xxxxxx, an individual residing
in the State of Illinois (the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board"), recognizes
that the possibility of a Change in Control (as hereinafter defined in Section
1.1), exists and that the possibility of or the occurrence of a Change in
Control may result in significant distractions of its key management personnel
because of the uncertainties inherent in such a situation; and
WHEREAS, the Board has determined that it is essential and in the best
interest of the Company and its shareholders that the Company be able to receive
and rely upon Executive's advice without concern that the Executive might be
distracted by the personal uncertainties and risks associated with a Change in
Control; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Company, particularly in the event of the occurrence of a Change in Control, and
for other good and valuable consideration, the Company and the Executive desire
to enter into this Agreement; and
WHEREAS, the Company and Executive each hereby acknowledge that this
Agreement is not intended to be, and shall not be construed as, an express or
implied contract of employment between the Company and the Executive;
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
SECTION 1
DEFINITIONS
1.1 Definitions. In addition to terms which may be defined within
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specific Sections of this Agreement, the following terms shall have the
following meanings when used herein with initial capital letters:
(a) "AFFILIATE" shall mean, as to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the specified Person, within the
meaning of such terms as used in Rule 405 under the Securities Act of 1933, as
amended, or any successor rule.
(b) "APPLICABLE ANNUAL EARNINGS" shall mean the sum of the Executive's
Base Salary, plus 100% of the Executive's Bonus for personal services on behalf
of the Company for the calendar year in which the Termination occurs (except
that if Executive is subject to a Constructive Termination for Good Reason
because his Base Salary or Bonus is reduced, then the current annual Base Salary
and Bonus used to determine Applicable Annual Earnings shall be the annual Base
Salary in effect or Bonus, as applicable, immediately prior to such Constructive
Termination for Good Reason). Applicable Annual Earnings shall include
Executive's current annual Base Salary and Bonus whether or not paid on a
deferred basis, including, without limitation, amounts contributed by or on
behalf of Executive under a Company sponsored plan, such as (i) a plan described
in Section 125 or 401(k) of the Internal Revenue Code of 1986, as amended, or
(ii) any "excess benefit plan" as defined in the Employee Retirement Income
Security Act of 1974, as amended. Notwithstanding the preceding provisions of
this paragraph, Applicable Annual Earnings do not include any income
attributable to stock options, stock appreciation rights, performance awards,
dividend credits, and restricted stock granted under, and dividends on shares
acquired pursuant to, any stock option plan, restricted stock plan or
performance unit plan.
(c) "BASE SALARY" shall mean the sum of the Executive's current annual
base salary, including, if applicable, any car allowance, club dues or other
payments paid to or on behalf of the Executive by the Company determined, in
each case, using the highest rate in effect up to and including the Termination
Date and whether or not actually paid.
(d) "BONUS" means an amount paid to Executive on an annual basis which is
equal to forty percent (40%) of the Executive's then current Base Salary.
(e) "CAUSE" shall mean that a majority of the Company's Board of Directors
(the "Board") shall have determined that the Executive (i) willfully and
continually failed to substantially perform his duties with the Company (other
than a failure resulting from Executive's incapacity due to illness, physical or
mental disability or other incapacity) and such failure continues for a period
of thirty (30) days after the Board has given written notice to Executive
providing a reasonable description of the basis for the determination that
Executive has failed to perform his duties, (ii) has been convicted of a felony,
(iii) engaged in conduct constituting willful malfeasance in connection with his
employment which is materially and demonstrably injurious to the Company and its
subsidiaries taken as a whole. No act, or failure to act, on Executive's part,
shall be considered "willful" for purposes of (i) or (iii) above unless he has
acted or failed to act with an absence of good faith and without a reasonable
belief that his action or failure to act was in the best interests of the
Company. Notwithstanding anything contained in this Agreement to the contrary,
no failure to perform by Executive after Notice of Termination (as herein
defined) is given by Executive shall constitute Cause for purposes of this
Agreement. No determination of Cause shall be final until the Executive and his
legal advisors are given an opportunity to meet with the Board, contest the
basis for termination, and demonstrate that Executive's continued employment is
in the best interests of the Company.
(f) "CONSTRUCTIVE TERMINATION FOR GOOD REASON" shall mean a termination of
employment with the Company by the Executive pursuant to the provisions of
Section 2.2.
(g) CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" shall be deemed to have occurred as of the date that one or more of the
following occurs:
(i) Individuals who, as of the date hereof, constitute the entire
Board of Directors of the Company ("Incumbent Directors") cease for any
reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date hereof whose
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election, or nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the then Incumbent Directors
shall be considered as though such individual was an Incumbent Director,
but excluding, for this purpose any such individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest, as such terms are used in Rule 14a-11 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or other
actual or threatened solicitation of proxies or consents by or on behalf of
any Person other than the Board; provided, further, that in the event
Kapoor (as herein defined) at any time determines to achieve representation
on the Company's Board of Directors approximately equal to his then
ownership percentage of the Company's common stock, his implementation of
such determination through the election of Kapoor Affiliates as directors
of the Company shall not be deemed to be a Change in Control and such
Kapoor Affiliates shall constitute Incumbent Directors;
(ii) The stockholders of the Company shall approve (A) any merger,
consolidation or recapitalization of the Company (or, if the capital stock
of the Company is affected, any subsidiary of the Company), or any sale,
lease, or other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Company (each of the foregoing being
an "Acquisition Transaction") where (1) the stockholders of the Company
immediately prior to such Acquisition Transaction would not immediately
after such Acquisition Transaction beneficially own, directly or
indirectly, shares or other ownership interests representing in the
aggregate eighty percent (80%) or more of (a) the then outstanding common
stock or other equity interests of the corporation or other entity
surviving or resulting from such merger, consolidation or recapitalization
or acquiring such assets of the Company, as the case may be (the "Surviving
Entity") (or of its ultimate parent corporation or other entity, if any),
and (b) the Combined Voting Power (as herein defined) of the then
outstanding Voting Securities (as herein defined) of the Surviving Entity
(or of its ultimate parent corporation or other entity, if any) or (2) the
Incumbent Directors at the time of the initial approval of such Acquisition
Transaction would not immediately after such
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Acquisition Transaction constitute a majority of the Board of Directors, or
similar managing group, of the Surviving Entity (or of its ultimate parent
corporation or other entity, if any), or (B) any plan or proposal for the
liquidation or dissolution of the Company; or
(iii) Any Person, other than Kapoor, shall be or become the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of securities of the Company representing in
the aggregate more than fifty percent (50%) of either (A) the then
outstanding shares of common stock of the Company ("Common Shares") or (B)
the Combined Voting Power of all then outstanding Voting Securities of the
Company.
(h) "COMBINED VOTING POWER" shall mean the aggregate votes entitled to be
cast generally in the election of the Board of Directors, or similar managing
group, of a corporation or other entity by holders of then outstanding Voting
Securities of such corporation or other entity.
(i) "DISABILITY" shall mean (i) the inability of Executive for a period of
six consecutive months to perform his duties, because of illness, physical or
mental disability or other incapacity, or (ii) at such earlier time as Executive
submits satisfactory medical evidence that he has an illness, physical or mental
disability or other incapacity which is expected to prevent him from returning
to the performance of his work duties for six months or longer.
(j) "EMPLOYEE BENEFITS" means the perquisites, benefits and service credit
for benefits as provided under any and all employee retirement income and
welfare benefit policies, plans, programs or arrangements in which the Executive
is entitled to participate which provide group or other life, health,
medical/hospital, or other insurance (whether funded by actual insurance or
self-insured by the Company), disability, salary continuation, expense
reimbursement, and other similar employee benefit policies, plans, programs or
arrangements that may now exist or any equivalent successor policies, plans,
programs or arrangements that may be adopted hereafter by the Company, providing
perquisites, benefits and service credit for benefits at least as great in the
aggregate as are payable thereunder prior to a Change in Control; provided,
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however, that the term "Employee Benefits" shall not include any stock option,
stock purchase, stock appreciation, savings, pension, supplemental executive
retirement or other retirement income or welfare benefit, deferred compensation,
incentive compensation, or similar plans.
(k) "KAPOOR" shall mean Xxxx X. Xxxxxx, a resident of the State of
Illinois or any Person who or which is an Affiliate of Kapoor.
(l) "NOTICE OF TERMINATION" shall mean a notice which indicates the
specific termination provisions in this Agreement relied upon as a basis for
Termination. For purposes of this Agreement, no purported Termination of
employment shall be effective without such Notice of Termination.
(m) "PERSON" shall mean any individual, entity (including, without
limitation, any corporation, partnership, Company, joint venture, association or
governmental body) or group (as defined in Sections 14(d)(3) or 15(d)(2) of the
Exchange Act and the rules and regulations thereunder); provided, however, that
Person shall not include the Company, any of its subsidiaries, any employee
benefit plan of the Company or any of its majority-owned subsidiaries or any
entity organized, appointed or established by the Company or such subsidiaries
for or pursuant to the terms of any such plan.
(n) "SEVERANCE BENEFITS" shall mean the compensation and other benefits
set forth in Sections 3 and 5, as applicable.
(o) "SEVERANCE PERIOD" shall mean a period of twelve (12) months
commencing with the date of consummation of a Change in Control, or, if
applicable, the period prior to a Change of Control as provided in Section 7.2.
(p) "TERMINATION" shall have the meaning provided in Section 3.1.
(q) "TERMINATION DATE" shall mean, in the case of the Executive's death,
his date of death, in the case of the Executive voluntarily terminating his
employment with the Company other than for Constructive Termination for Good
Reason, his last day of employment with the Company, and in all other cases, the
date specified in the Notice of Termination subject to the following:
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(i) If the Executive's employment is terminated by the Company, the
date specified in the Notice of Termination shall be at least thirty (30)
days after the date the Notice of Termination is given to the Executive,
provided, however, that in the case of Disability, the Executive shall not
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have returned to the full-time performance of his duties during such period
of at least thirty (30) days; or
(ii) If the Executive's employment is terminated for Constructive
Discharge for Good Reason, the date specified in the Notice of Termination
shall not be more than sixty (60) days after the date the Notice of
Termination is given to the Company.
(r) "VOTING SECURITIES" shall mean all securities of a corporation or
other entity having the right under ordinary circumstances to vote in an
election of the Board of Directors, or similar managing group, of such
corporation or other entity.
SECTION 2
TERMINATION FOLLOWING A CHANGE IN CONTROL
2.1. Termination by the Company. On or after the occurrence of a Change in
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Control, if the Executive's employment is terminated by the Company during the
Severance Period for any reason other than (i) the Executive's death or (ii) for
Cause, the Executive shall be entitled to the Severance Benefits as provided by
Sections 3 and 5, as applicable.
2.2 Constructive Termination for Good Reason. Upon the occurrence during
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the Severance Period of one or more of the following events (regardless of
whether any other reason, other than Cause, for termination exists or has
occurred, including, without limitation, the Executive's acceptance and/or
commencement of other employment), the Executive may, within ninety (90) days
after the occurrence of any of the following events, terminate his employment
with the Company and become entitled to the Severance Benefits as provided by
Sections 3 and 5, as applicable (the election of the Executive to terminate his
employment under this Section 2.2 shall constitute "Constructive Termination for
Good Reason"):
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(a) failure to maintain the Executive in the office or the position,
or a substantially equivalent office or position (other than the office of
director of the Company), of or with the Company which the Executive held
immediately prior to a Change in Control;
(b) a significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities or duties attached to the
position with the Company which the Executive held immediately prior to the
Change in Control (other than service as a director), a reduction in the
aggregate of the Executive's Base Salary and Bonus received from the
Company, or the termination or denial of the Executive's rights to Employee
Benefits or a reduction in the scope or value thereof, except for any such
termination or denial, or reduction in the scope or value, of any Employee
Benefits applicable generally to all recipients of or participants in such
Employee Benefits;
(c) the determination by the Executive (which determination will be
conclusive and binding upon the parties hereto provided it has been made in
good faith and in all events will be presumed to have been made in good
faith unless otherwise shown by the Company by clear and convincing
evidence) that a change in circumstances has occurred following a Change in
Control, including without limitation a change in the scope of the business
or other activities for which the Executive was responsible immediately
prior to the Change in Control, which has rendered the Executive
substantially unable to carry out, or has caused the Executive to suffer a
substantial reduction in, any of the authorities, powers, functions,
responsibilities, or duties attached to the position held by the Executive
immediately prior to the Change in Control (other than as a director of the
Company), which situation is not remedied within five (5) calendar days
after written notice to the Company from the Executive of such
determination;
(d) the liquidation, dissolution, merger, consolidation, or
reorganization of the Company or transfer of all or substantially all of
its business and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or otherwise)
to which
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all or substantially all of the Company's business and/or assets have been
transferred (directly or by operation of law) assumes all duties and
obligations of the Company under this Agreement;
(e) The Company relocates its principal executive offices, or
requires the Executive to have the Executive's principal location of work
changed, to any location which is in excess of 25 miles from the location
thereof immediately prior to the Change in Control, or requires the
Executive to travel away from the Executive's office in the course of
discharging the Executive's responsibilities or duties hereunder at least
20% more (in terms of aggregate days in any calendar year or in any
calendar quarter when annualized for purposes of comparison to any prior
year) than was required of the Executive in any of the two full years, or
such shorter period of time as the Executive may have held his position
with the Company, immediately prior to the Change in Control without, in
either case, the Executive's prior written consent; and/or
(f) without limiting the generality or effect of the foregoing, any
material breach of this Agreement by the Company or any successor thereto.
2.3. Executive's Other Rights. A termination by the Company pursuant to
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Section 2.1 or by the Executive pursuant to Section 2.2 will not affect any
rights which the Executive may have pursuant to any other agreement, policy,
plan, program or arrangement of the Company providing Employee Benefits or any
rights attributable to stock options, stock appreciation rights, performance
awards, dividend credits and restricted stock, if any, granted to the Executive
under, and dividends on shares acquired pursuant to, any stock option plan,
restricted stock plan, performance unit plan, or other similar plan, which
rights will be governed by the terms of such plans.
SECTION 3
RIGHTS AND BENEFITS UPON TERMINATION
3.1. Termination Payments. In the event Executive shall become entitled to
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receive the rights and benefits described in
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this Section as a result of the termination by the Company under Section 2.1 or
a Constructive Termination for Good Reason under Section 2.2 within the
Severance Period (hereinafter collectively referred to as a "Termination"), the
Company agrees to provide or cause to be provided to Executive the following
rights and benefits:
(a) The Company shall pay to the Executive in a lump sum, by certified
check, within ten (10) "business days" (which for purposes of this Agreement
shall mean any day other than Saturday, Sunday, or public holiday under the laws
of the State of Illinois) after the Termination Date, or, at the election of
Executive, in twelve (12) equal monthly installments, an amount equal to the
aggregate of the following:
i. The sum of:
(i) The Executive's proportionate amount of the Base Salary
through the Termination Date, to the extent not theretofore paid; plus
(ii) Any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid.
ii. An amount equal to two hundred percent (200%) of the Executive's
Applicable Annual Earnings.
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(b) For the balance of the Severance Period, but in no event for less than
one year, the Company will arrange to provide the Executive with all Employee
Benefits substantially similar to those which the Executive was receiving or
entitled to receive immediately prior to the Termination Date, except that the
level of any such Employee Benefits to be provided to the Executive may be
reduced in the event of a corresponding reduction applicable generally to all
recipients of or participants in such Employee Benefits, and the Severance
Period will be considered service with the Company for the purpose of
determining service credits and benefits due and payable to the Executive under
the Company's retirement income, supplemental executive retirement, and other
benefit plans of the Company applicable to the Executive, the Executive's
dependents, or the Executive's beneficiaries immediately prior to the
Termination Date. If and to the extent that any benefit described in the
immediately preceding sentence is not or cannot be paid or provided under any
policy, plan program or arrangement of the Company, then the Company will itself
pay or provide for the payment of such Employee Benefits to the Executive, and,
if applicable, the Executive's dependents and Beneficiaries.
3.2 Bonus Payment. In the event (a) of a Change of Control shall be
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consummated during calendar year 1996, or (b) a Termination in 1996 during the
Severance Period or in 1997 but prior to payment of the Bonus for calendar year
1996, then, within thirty (30) days of any such event, the Company shall pay to
Executive one hundred percent (100%) of the Bonus which would be payable to
Executive for 1996, which Bonus the Company and Executive agree shall be equal
to $90,000.
SECTION 4
MITIGATION
4.1 No Duty to Mitigate. In no event shall the Executive be obligated to
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seek other employment or take any other action by way of mitigation of the
amount 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.
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SECTION 5
ADDITIONAL PAYMENTS
In addition to the amounts payable to the Executive pursuant to Section 3,
the Company shall make the following payments to the Executive to the extent
applicable:
5.1. Change of Control Bonus. In the event a Change of Control is
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consummated while this Agreement is in effect (the "Transaction"), the Company
agrees to pay to Executive within thirty (30) days of the consummation of the
Transaction, the sum of One Hundred Fifty Thousand Dollars ($150,000) in partial
recognition of the Executive's efforts to bring about the Transaction and of the
value added to the Company during the Executive's tenure with the Company.
5.2. Excise Tax Payment.
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(a) Notwithstanding anything contained in this Agreement to the
contrary, in the event that any payment or distribution to or for the benefit of
the Executive, 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 (a "Payment" or "Payments"), would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"), or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with
any interest and penalties, are collectively referred to as the "Excise Tax"),
then the Executive shall be entitled to receive an additional payment (a "Gross-
Up Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) a determination shall be made as to whether and when a Gross-Up
Payment is required pursuant to this Section 5.2(b) and the amount of such Gross
Up Payment, such determination to be made within fifteen (15) business days of
the Termination Date, or such other time as requested by the Company or by the
Executive (provided the Executive reasonably believes that any of the Payments
may be subject to the Excise Tax). Such determination
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shall be made by a national independent accounting firm selected by the
Executive (the "Accounting Firm"). All fees, costs and expenses (including, but
not limited to, the cost of retaining experts) of the Accounting Firm shall be
borne by the Company and the Company shall pay such fees, costs and expenses as
they become due. The Accounting Firm shall provide detailed supporting
calculations, acceptable to the Executive, both to the Company and the
Executive. The Gross-Up Payment, if any, as determined pursuant to this Section
5.2 shall be paid by the Company to the Executive within five (5) business days
of the receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by the Executive with respect to a
Payment or Payments, it shall furnish the Executive with an unqualified opinion
that no Excise Tax will be imposed with respect to any such Payment or Payments.
Any such initial determination by the Accounting Firm of the Gross-Up Payment
shall be binding upon the Company and the Executive subject to the application
of Section 5.2(c).
(c) As a result of the uncertainty on the application of Sections 4999 and
280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof)
will be paid which should not have been paid (an "Overpayment") or a Gross-Up
Payment (or a portion thereof) which should have been paid will not have been
paid (an "Underpayment"). An Underpayment shall be deemed to have occurred upon
notice (formal or informal) to the Executive from any governmental taxing
authority that the tax liability of the Executive (whether in respect of the
then current taxable year of the Executive or in respect of any prior taxable
year of the Executive) may be increased by reason of the imposition of the
Excise Tax on a Payment or Payments with respect to which the Company has failed
to make a sufficient Gross-Up Payment. An Overpayment shall be deemed to have
occurred upon a "Final Determination" (as hereinafter defined) that the Excise
Tax should not be imposed upon a Payment or Payments with respect to which the
Executive has previously received a Gross-Up Payment. A Final Determination
shall be deemed to have occurred when the Executive has received from the
applicable governmental taxing authority a refund of taxes or other reduction in
his tax liability by reason of the Overpayment and upon either (i) the date of
determination as made by, or an agreement is entered into with, the governmental
taxing authority which finally and conclusively binds that Executive and such
taxing authority, or in the event that a claim
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is brought before a court of competent jurisdiction, the date upon which a final
determination has been made by such court and either all appeals have been taken
and finally resolved or the time for all appeals has expired or (ii) the
expiration of the statute of limitations with respect to the Executive's
applicable tax return. If an Underpayment occurs, the Executive shall promptly
notify the Company and the Company shall pay to the Executive at least five (5)
business days prior to the date on which the applicable governmental taxing
authority has requested payment, an additional Gross-up Payment equal to the
amount of the Underpayment plus any interest and penalties imposed on the
Underpayment. If an Overpayment occurs, the amount of the Overpayment shall be
treated as a loan by the Company to the Executive and the Executive shall,
within ten (10) business days of the occurrence of such Overpayment, pay to the
Company the amount of the Overpayment plus interest at an annual rate equal to
the rate provided for in Section 1274(b)(2)(B) of the Code from the date the
Gross-Up Payment (to which the Overpayment relates) was paid to the Executive.
(d) Notwithstanding anything contained in this Agreement to the contrary,
in the event it is determined that an Excise Tax will be imposed on any Payment
or Payments, the Company shall pay to the applicable governmental taxing
authorities as Excise Tax withholding, the amount of the Excise Tax that the
Company has actually withhold from the Payment or Payments.
SECTION 6
LEGAL FEES AND EXPENSES
6.1. Retention of Counsel. It is the intent of the Company that the
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Executive not be required to incur legal fees and the related expenses
associated with the interpretation, enforcement or defense of the Executive's
rights to compensation upon a Termination by litigation or otherwise because the
cost and expense thereof would substantially detract from the benefits intended
to be extended to the Executive hereunder. Accordingly, if it should appear to
the Executive that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes
or threatens to take any action to declare the Agreement to pay Executive
compensation upon a Termination void or unenforceable, or institutes any
litigation
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or other action or proceeding designed to deny, or to recover from, the
Executive the benefits provided or intended to be provided to the Executive
hereunder, the Company irrevocably authorizes the Executive from time to time to
retain counsel of the Executive's choice, at the expense of the Company as
hereinafter provided, to advise and represent the Executive in connection with
any such interpretation, enforcement or defense, including without limitation
the initiation or defense of any litigation or other legal action, whether by or
against the Company or any Company director, officer, stockholder, or other
person affiliated with the Company, in any jurisdiction.
6.2. Waiver of Conflict. Notwithstanding any existing or prior attorney-
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client relationship between the Company and such counsel, the Company
irrevocably consents to the Executive's entering into an attorney-client
relationship with such counsel, and in that connection the Company and the
Executive agree that a confidential relationship will exist between the
Executive and such counsel.
6.3. Reimbursement of Expenses of Counsel. Without regard to whether the
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Executive prevails in whole or in part, in connection with any of the foregoing,
the Company will pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by the Executive in connection
with any of the matters set forth in this Section 6.
SECTION 7
EMPLOYMENT RIGHTS;
TERMINATION PRIOR TO CHANGE IN CONTROL
7.1. No Right to Employment. Nothing expressed or implied in this
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Agreement will create any right or duty on the part of the Company or the
Executive to have the Executive remain in the employ of the Company prior to or
following any Change in Control, it being acknowledged and agreed by and between
the Company and the Executive that the Executive's employment with the Company
is and shall continue to be terminable "at will" by either party.
7.2. Termination Prior to Change in Control. Any termination by the
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Company of the employment of the Executive, other than for death or Cause, or
the removal of the Executive from any office or
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position in the Company, other than for Cause, following the commencement of any
discussion with a third person that results in a Change in Control within 90
calendar days after such termination or removal shall be deemed to be a
Termination of the Executive's employment after a Change in Control for purposes
of this Agreement.
SECTION 8
TERM
8.1. Term. The term of this Agreement shall be deemed to commence and be
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effective as of the date of this Agreement and shall, subject to Section 8.2,
continue to and including July 1, 1997. At any time within sixty (60) days of
the end of such term or any renewal terms, the parties hereto may renew this
Agreement in writing for additional terms of one year, or such other period as
the parties may agree.
8.2. Termination for Death, Disability or Outside of the Severance Period.
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Except with respect to the provisions of this Agreement that provide for
payments to be made to Executive after a Termination, or that impose obligations
upon the Company or grant rights that may be exercised by Executive after a
Termination, this Agreement shall terminate automatically without further action
by either of the parties hereto upon the death or Disability of Executive or the
termination of Executive's employment with the Company for any reason or no
reason that do not occur in the Severance Period, in accordance with Executive's
status as an employee at will.
SECTION 9
MISCELLANEOUS
9.1. Representation by Executive. Executive hereby represents and warrants
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to the Company that there are no agreements or understandings that would make
unlawful his execution or delivery of this Agreement.
9.2. Notices. All notices, renewals and other communications required or
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permitted under this Agreement must be in writing and shall be deemed to have
been given if delivered or mailed, by certified mail, first class postage
prepaid, to the parties at the
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addresses set forth beneath their respective signatures to this Agreement, as
the same may be changed in writing form time to time.
9.3. Entire Agreement. The parties expressly agree that this Agreement is
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contractual in nature and not a mere recital, and that it contains all the terms
and conditions of the agreement between the parties with respect to the matters
set forth herein. All prior negotiations, agreements, arrangements,
understandings and statements between the parties relating to the matters set
forth herein that have occurred at any time or contemporaneously with the
execution of this Agreement are superseded and merged into this completely
integrated Agreement. The Recitals set forth above shall be deemed to be part of
this Agreement.
9.4. Governing Law. This Agreement was negotiated and is performable in
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Lake County, Illinois and shall be governed by the laws of the State of Illinois
without giving effect to principles of conflicts of law.
9.5. Severability. If any provision of the Agreement is held to be
------------
illegal, invalid or unenforceable under any present or future law, such
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom, and in lieu of
such provision, there shall be added automatically as a part of this Agreement,
a legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible, and the Company and
Executive hereby request the court or any arbitrator to Company and Executive
hereby request the court or any arbitrator to whom disputes relating to this
Agreement are submitted to reform the otherwise unenforceable covenant in
accordance with the proceeding provision.
9.6. Counterparts. This Agreement may be executed in multiple identical
------------
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute but one and the same instrument. In making proof of
this Agreement, it shall be necessary to produce or account for more than one
counterpart executed by the party sought to be charged with performance
hereunder.
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9.7. Assignment and Delegation. All rights, covenants and agreements of
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the Company set forth in this Agreement shall unless otherwise provided herein,
be binding upon and inure to the benefit of the Company's respective successors
and assigns. All rights, covenants and agreements of Executive set forth in this
Agreement shall, unless otherwise provided herein, not be assignable by
Executive, and shall be considered personal to Executive for all purposes.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first set forth above.
OPTION CARE, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Title: Chairman of the Board
----------------------------
Notice Address:
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
/s/ Xxxxx X. Xxxxxx
----------------------------------
XXXXX X. XXXXXX
Notice Address:
0000 Xx. Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
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