EXHIBIT 10.33
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of April
30, 2002 (the "Effective Date"), by and between AdvancePCS (the "Company") and
Xxx X. Xxxxxx (the "Employee"). For purposes of this Agreement, the Company and
its affiliates shall collectively be referred to as the "Companies".
WHEREAS, the Company and Employee desire to enter into this Agreement
pursuant to which the Company will employ Employee in the capacity of Executive
Vice President, Chief Financial Officer for the period and on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the promises 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, Chief Financial Officer of the Company, or other comparable position
and title, with such duties, functions, responsibilities and authority as are
typically consistent with such position and title and in accordance with the
terms and conditions hereinafter set forth. During the term of this Agreement,
Employee agrees that this position shall be her full-time employment; she shall
comply with the covenants of this Agreement; she shall devote her best efforts
and all of her business time, attention and skills to the successful
continuation of the business of the Company.
2. TERM. The employment of Employee shall commence on the Effective
Date and shall continue through the third anniversary thereof and for
consecutive two-year periods thereafter; provided, that either party may deliver
notice of non-renewal at least 90 days prior to the third anniversary date or
the two-year incremental anniversary date, as the case may be, and the Agreement
shall terminate upon such upcoming anniversary date (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 Four
Hundred Twenty-Five Thousand Dollars ($425,000) with such increases thereto as
may be determined and paid by the Company ("Base Salary") in accordance with the
Company's salary payment practices and policies in effect from time to time for
senior managers of the Company.
(b) ADDITIONAL COMPENSATION. In addition to the Base Salary,
Employee shall be entitled to receive the compensation set forth in Exhibit A
attached hereto.
(c) BENEFIT PLANS. Employee shall be entitled to participate
in any health, accident, disability and life insurance programs, and any other
fringe benefit program, which the Company may adopt and implement for the
benefit of the Company's employees.
(d) EXPENSES. Employee shall be entitled to receive
reimbursement for all reasonable expenses incurred by Employee in connection
with the fulfillment of Employee's 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.
(e) PAID TIME OFF. During the Term of employment, Employee
shall be permitted to take time off with such frequency and of such duration as
are consistent with the executive paid time off 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.
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 90th day after
receipt of such notice by the Employee (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the Employee could not
have (as determined by the process set forth below) and shall not have returned
to the performance of the essential functions of the Employee's position with or
without reasonable accommodations (as defined in Title I of the American's with
Disabilities Act) ("Reasonable Accommodations"). For purposes of this Agreement,
"Disability" means Employee's incapacity due to physical or mental illness,
which is determined 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), to prevent
Employee's substantial and continuous performance of the essential functions of
her position with or without Reasonable Accommodations for a period of more than
12 weeks after its commencement or for an aggregate of sixteen weeks in any
12-month period.
(b) CAUSE. The Company may terminate the Employee's employment
for "Cause." For purposes of this Agreement, "Cause" means:
(i) a significant act or acts of personal dishonesty
taken by the Employee at the expense of the Company, or
(ii) a material violation by the Employee of the
Employee's obligations under this Agreement which Employee fails to
cure within a reasonable period of time after receiving notice thereof,
or
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(iii) the indictment of the Employee of a felony, or
(iv) failure of the employee to substantially perform
her duties and responsibilities which Employee fails to cure within a
reasonable period of time after receiving notice thereof; or
(v) breach of Employee's representation set forth in
Section 11 of this Agreement.
(c) WITHOUT CAUSE. The Company may, at its option, terminate
Employee's employment without Cause at any time upon written notice to Employee.
(d) BY EMPLOYEE FOR GOOD REASON. During the Term of
Employment, the Employee's employment hereunder may be terminated by the
Employee for Good Reason upon thirty (30) days prior written notice by Employee
to the Company. For purposes of this Agreement, "Good Reason" shall mean,
without the Employee's consent, any of the following conditions that remain
uncured for a reasonable period of time after notice to the Company by Employee:
(i) the assignment to the Employee of any duties
inconsistent in any material respect with the Employee's position,
authority, duties or responsibilities as contemplated by Section 1 of
this Agreement, excluding for this Section 4(d) any isolated and
inadvertent action not taken in bad faith and which is remedied by the
Company within ten (10) days after receipt of a notice thereof given by
the Employee;
(ii) a material diminution in the Employee's
reporting relationship such that she would not report directly to the
Company's Chief Executive Officer or Chairman of the Board;
(iii) any failure by the Company to comply with any
of the provisions of Section 3 of this Agreement other than an isolated
and inadvertent failure not taken in bad faith and which is remedied by
the Company within ten (10) days after receipt of notice thereof given
by the Employee; or
(iv) any purported termination by the Company of the
Employee's employment otherwise than as expressly permitted by this
Agreement.
(e) NOTICE OF TERMINATION. Any termination by the Company or
Employee shall be communicated by Notice of Termination to the Employee hereto
given in accordance with Section 12 of this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice which
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(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.
The failure by the Employee or Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of
the basis for termination shall not waive any right of such party
hereunder or preclude such party from asserting such fact or
circumstance in enforcing his or its rights hereunder.
(f) 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 of 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 the
obligation to pay the Employee
(i) the Base Salary through the Date of Termination
at the rate in effect on the Date of Termination (the "Base Salary"),
(ii) the amount equal to the target bonus for the
fiscal year in which the Date of Termination occurs multiplied by the
fraction, the numerator of which will be the number of months of
Employee's employment during such fiscal year and the denominator of
which will be 12, and
(iii) any compensation previously deferred by the
Employee (together with accrued interest, if any, thereon) and not yet
paid by the Company and any accrued
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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.
(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 a lump sum in cash within 30 days
of the Date of Termination. Employee shall be entitled after the Disability
Effective Date to receive disability benefits provided by the Company to
disabled employees or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, in effect on the
Disability Effective Date.
(c) CAUSE. 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 portion of Base Salary earned and the
balance of paid time off earned by Employee through the Date of Termination plus
the amount of any compensation previously deferred by the Employee, if any,
consistent with Company policy.
(d) GOOD REASON; OTHER THAN FOR CAUSE, DISABILITY OR DEATH.
(i) If the Company shall terminate the Employee's
employment (other than for Cause or Disability and except if
the Employee's employment is terminated as a result of her
death) or if, during the Term, the Employee shall terminate
her employment for Good Reason, the Company shall continue in
accordance with the Company's normal payroll procedures to pay
Employee: (A) Base Salary for a period of twelve (12) months
following the Date of Termination and (B) an amount equal to
the target bonus for the fiscal year in which the Date of
Termination occurs ("Target Bonus").
(ii) If the Company shall consummate a Change of
Control transaction (as defined below) which results in the
termination of Employee's employment with the Company within
one-year prior to or one-year following the consummation of
the Change of Control transaction, the Company shall continue
in accordance with the Company's normal payroll procedures to
pay Employee: (A) Base Salary for a period of two years
following the Date of Termination and (B) in each such year,
an amount equal to the Target Bonus.
(iii) Subject to any limitations imposed by law, the
terms of the Company's plans, programs and policies, or the
terms of any option agreements, during the one-year or
two-year period following termination (as defined in the
preceding clauses (i) and (ii) of this Section 5(d)), the
Company shall continue
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benefits for Employee and her family at least equal to those
which would have been provided in accordance with Section 3(c)
of this Agreement if the Employee's employment had not been
terminated.
(iv) "CHANGE OF CONTROL" shall mean (A) a sale of a
majority of the Common Stock of the Company, (B) a sale of
substantially all of the assets of the Company, (C) a merger
in which the Company is not to be the surviving corporation;
provided, however, that any transaction between the Company
and any affiliate of the Company shall not be deemed to
constitute a Change of Control under this Section 5(d), or (D)
individuals who constitute the Board of Directors of the
Company on any day (the "INCUMBENT BOARD") cease for any
reason other than their deaths or the expiration of the Class
B-1 and Class B-2 board seats (as defined in the Company's
Amended and Restated Certificate of Incorporation) to
constitute at least a majority of the Incumbent Board on the
following day (which day shall be the day on which a "change
of control" shall be deemed to have occurred), provided that
any individual becoming a director subsequent to the date of
this Agreement whose election or nomination for election was
approved by a vote of not less than two-thirds of the
Incumbent Board (excluding the Class B-1 and Class B-2
Directors) shall be considered, for purposes of this section,
as though such person were a member of the Incumbent Board.
(v) In the event that the benefits provided for in
this Agreement or otherwise payable to the Employee constitute
"parachute payments" within the meaning of Section 280G of the
Internal Revenue Code ("the Code") and will be subject to the
excise tax imposed by Section 4999 of the Code, the Employee
shall receive a payment from the Company sufficient to pay
such excise tax, plus an additional payment from the Company
sufficient to pay the excise tax and federal and state income
and employment taxes arising from the payments made by the
Company to Employee pursuant to this sentence. Unless the
Company and the Employee otherwise agree in writing, the
determination of Employee's excise tax liability and the
amount required to be paid under this Section 5(d)(v) shall be
made in writing by the independent auditors who are primarily
used by the Company immediately prior to the Change of Control
(the "Accountants"). For purposed of making the calculations
required by this Section 5(d)(v), the Accountants may make
reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G
and 4999 of the Code. The Company and the Employee shall
furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a
determination under this Section. The Company shall bear all
costs the Accountants reasonably may incur in connection with
any calculations contemplated by this Section 5(d)(v).
(e) STOCK OPTIONS. Except as otherwise provided herein,
Employee shall have ninety (90) days from the Date of Termination to exercise
any vested but unexercised options previously granted to Employee to purchase
shares of the Common Stock of the Company. Any
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such exercise will be in accordance with the terms and conditions of the
applicable stock option plan and stock option agreement.
6. CONFIDENTIALITY. Employee acknowledges that, during the course of
Employee's performance of services for the Company, Employee will acquire
knowledge with respect to the business operations, including, by way of
illustration, the Companies' existing and contemplated services, products, trade
secrets, ideas, know how, research and development, formulas, models,
compilations, processes, computer code generated or developed, software or
programs and related documentation, business and financial methods or practices,
plans, pricing, operating margins, marketing, merchandising and selling
techniques and information, customer lists, details of customer agreements,
sources of supply, employee compensation and benefit plans, patient records and
data, and other confidential information relating to the Companies' policy,
operating strategy, expansion strategy or business strategy (all of such
information herein referred to as the "Confidential Information"); provided,
that the term Confidential Information shall not include information which is
generally known to the public or the industry other than as a result of
Employee's breach. Employee shall not use, in any way, or disclose any of the
Confidential Information, directly or indirectly, either during the term of
Employee's employment or at anytime thereafter, except as required in the course
of Employee's employment. Employee acknowledges that all computer code,
programs, files, records, documents, information, data and similar items and
documentation relating to the business of the Companies (including all copies
thereof), whether prepared by Employee or otherwise, are the exclusive property
of the Companies and, upon termination of Employee's employment with the Company
(for whatever reason), Employee shall not take, but shall leave with the
Company, all such computer code, programs, files, records, documents,
information, data and similar items and documentation relating to the business
of the Companies (including all copies thereof). The obligations of this Section
6 are continuous and shall survive the termination of Employee's employment with
the Company.
7. RESTRICTIONS ON COMPETITIVE EMPLOYMENT. During the term of
Employee's employment and for the twelve-month period following termination of
Employee's employment, or such longer period as the Company shall make payments
to Employee under Section 5(d) of this Agreement (the "RESTRICTED PERIOD"),
Employee will not, become engaged in, render services to, permit Employee's name
to be used in connection with, own, manage, operate, control, be employed by,
participate in, consult with, or be connected in any manner, whether as an
officer, director, employee, agent, consultant, stockholder (other than as the
holder of less than 2% of the aggregate outstanding shares of a class of equity
securities publicly traded on a national securities exchange or quotation
system) or other capacity with the ownership, management, operation or control
of, any business or enterprise substantially engaged or about to become engaged
substantially in the Business of the Companies. The Business of the Companies
includes, but is not limited to, all those products and services that are
presently or hereafter marketed by the Companies that are significant lines of
business for the Companies, or that are in the development stage at the time of
termination of Employee's employment and are actually marketed by the Companies
and/or their affiliates thereafter, as well as, the following businesses: (i)
the pharmacy benefit management business; (ii) formulary management and rebate
administration services; (iii) the distribution of specialty pharmaceuticals;
(iv) disease state
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management services; (v) the prescription discount card business; (vi) medical
or prescription claim informatics business; and (vii) services to or on behalf
of any pharmaceutical or biotech manufacturer that relate to the foregoing
clauses (i) through (vi). These restrictions do not preclude Employee from
seeking employment in the health care industry outside the narrow lines
described above. In the event this Agreement expires and is neither renewed nor
replaced, and Employee's employment terminates when no employment agreement is
in effect, then Employee's obligations under this Section 7 shall continue, at
the Company's option, for up to one year provided that the Company shall
continue to cause Employee to receive the amounts specified in Section 5(d) of
this Agreement.
8. NONINTERFERENCE. Employee agrees that during the term of Employee's
employment and for the twelve month period following the termination of
Employee's employment by the Company, or such longer period as the Company shall
make payments to Employee under Section 5(d) of this Agreement, Employee shall
not, directly or indirectly, whether as principal, agent, officer, employee,
investor, consultant, stockholder, or otherwise, alone or in association with
any other person:
(a) Induce or attempt to influence, directly or indirectly,
any employee of the Companies to terminate his employment with the Companies,
(b) Disparage the good name or reputation of the Companies or
business of the Companies or engage in any conduct that brings the Companies or
the Companies' business into public ridicule or disrepute; or
(c) Solicit, induce or encourage any customer, prospective
customer, consultant, independent contractor or supplier of the Companies for
the purpose of offering products or services that, directly or indirectly,
compete or interfere with the Business of the Companies. For purposes of this
section, "prospective customer" shall mean any party who has had contact with
the Companies within the six-month period immediately preceding termination of
employment hereunder.
9. INVENTIONS AND PATENTS. Employee agrees that all inventions, ideas,
innovations, improvements or discoveries relating to the Business of the
Companies or the Companies' method of conducting business (including new
contributions, improvements, ideas and discoveries, whether patentable or
copyrightable or not) conceived or made by Employee during Employee's employment
with the Company shall be, and hereby are, assigned to the Company. Employee
will promptly disclose such inventions, ideas, innovations or improvements to
Employee's supervisor or Chief Executive Officer of the Company and perform all
actions reasonably requested by Employee's supervisor or Chief Executive Officer
to establish and confirm such ownership. The expense of securing any such
patents shall be borne by the Company.
10. INDEMNIFICATION. The Company shall maintain, for the benefit of the
Employee, director and officer liability insurance in form at least as
comprehensive as, and in an amount that is at least equal to, that maintained by
the Company on the Effective Date. In
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addition, the Employee shall be indemnified by the Company against liability as
an officer and director of the Company and any subsidiary or affiliate of the
Company to the maximum extent permitted by applicable law. The Employee's rights
under this Section 10 shall continue so long as he may be subject to such
liability, whether or not this Agreement may have terminated prior thereto.
11. NO CONFLICTS. Employee represents to the Company that Employee has
neither entered into nor is bound by any agreement or obligation, whether
written or verbal, direct or indirect, that prohibits or impedes Employee's
ability to perform Employee's obligations hereunder, including without
limitation any agreement not to compete or agreement to solicit health plan
payors.
12. 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 overnight mail or certified mail, return
receipt requested, postage prepaid, simultaneously dispatched) to the addressees
at the addresses specified below.
IF TO EMPLOYEE: 0000 Xxxxx Xxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
IF TO THE COMPANY: AdvancePCS
0000 Xxxxx X'Xxxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
or to such other address or fax number as either party may from time to time
designate in writing to the other.
13. ARBITRATION. Any dispute or controversy between the Company and the
Employee, whether arising out of or relating to this Agreement, the breach of
this Agreement, or otherwise, shall be settled by arbitration administered by
the American Arbitration Association ("AAA") in accordance with its Commercial
Arbitration Rules then in effect and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Any
arbitration shall be held before a single arbitrator who shall be selected by
the mutual agreement of the Company and the Employee, unless the parties are
unable to agree to an arbitrator, in which case, the arbitrator will be selected
under the procedures of the AAA. The arbitrator shall have the authority to
award any remedy or relief that a court of competent jurisdiction could order or
grant, including, without limitation, the issuance of an injunction. However,
either party may, without inconsistency with this arbitration provision, apply
to any court having jurisdiction over such dispute or controversy and seek
interim provisional, injunctive or other equitable relief until the arbitration
award is rendered or the controversy is otherwise resolved. Except as necessary
in
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court proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company and the Employee. The Company and the
Employee acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision included in
this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision. The arbitration
proceeding shall be conducted in Dallas County, Texas or such other location to
which the parties may agree. The Company shall pay the costs of any arbitrator
appointed hereunder.
14. REPRESENTATIONS.
(a) The Company represents and warrants that (i) the execution
of this Agreement has been duly authorized by the Company, (ii) the
execution, delivery and performance of this Agreement by the Company
does not and will not violate any law, regulation, order, judgment or
decree or any agreement, plan or corporate governance document of the
Company and (iii) upon the execution and delivery of this Agreement by
the Employee, this Agreement shall be the valid and binding obligation
of the Company, enforceable in accordance with its terms, except to the
extent enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the effect of general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
(b) The Employee represents and warrants to the Company that
(i) the execution, delivery and performance of this Agreement by the
Employee does not and will not violate any law, regulation, order
judgment or decree or any agreement to which the Employee is a party or
by which he is bound, (ii) the Employee is not a party to or bound by
any employment agreement, noncompetition agreement or confidentiality
agreement with any other person or entity that would interfere with
this Agreement or his performance of services hereunder, and (iii) upon
the execution and delivery of this Agreement by the Company, this
Agreement shall be the valid and binding obligation of the Employee,
enforceable in accordance with its terms, except to the extent
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and by the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law).
15. SURVIVAL. No termination of Employee's employment (for whatever
reason) shall reduce or terminate Employee's covenants and agreements in
Sections 6, 7, 8 and 9 hereof and the Company's obligations in Section 5 and 10.
16. PAYMENT OBLIGATIONS. Except as provided in this Section 16, the
Company's obligations to pay the Employee the compensation and other benefits as
provided in this Agreement shall be absolute and unconditional and shall not be
affected by circumstances, including without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against the Employee. All amounts payable by the Company hereunder
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shall be paid without notice or demand. The foregoing notwithstanding, the
Company's obligations to pay Employee the compensation and benefits set forth in
Section 5(d) hereof shall cease in the event (i) Employee initiates formal
adversarial proceedings against the Company or (ii) the Company seeks injunctive
relief for a breach of Section 7 hereof.
17. 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.
18. 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 Texas.
19. ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns. 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.
20. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision in any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein except that
any court having jurisdiction shall have the power to reduce the duration, area
or scope of such invalid, illegal or unenforceable provision and, in its reduced
form, it shall be enforceable. 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.
21. REMEDIES. The parties to this Agreement shall be entitled to
enforce their respective rights under this Agreement specifically, to recover
damages (including, without limitation, reasonable fees and expenses of counsel)
by reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their respective favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach or
threatened breach of the provisions of this Agreement and that any party may in
their respective sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce or prevent any violations of the provisions of this Agreement.
Such injunction or decree shall be available without the posting of any bond or
other security.
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22. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, with the same effect as if the parties had signed the
same document. All such counterparts shall be deemed an original, shall be
construed together and shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ADVANCEPCS
By:
-----------------------------------------
Xxxxx X. Xxxxxxx, Chairman and CEO
EMPLOYEE
--------------------------------------------
Xxx X. Xxxxxx
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EXHIBIT "A"
FRINGE BENEFITS
1. Stock Options. Employee shall be granted an incentive stock option (the
"Option") to purchase 160,000 shares of the Common Stock (the "Shares") of
the Company. The Option shall be subject to approval by the Company's
Compensation Committee of the Board of Directors and granted pursuant to
the provisions of the Company's Amended and Restated Incentive Stock Option
Plan (the "Plan"). The Option shall vest and become exercisable as to 20%
of the shares on each of the first five anniversaries of the date of grant;
provided that the option shares that would have vested in 2006 and 2007
shall vest and become exercisable if the Company meets certain financial
performance targets set by the Board of Directors for FY03, FY04 and FY05.
The Option shall vest in full upon a Change of Control transaction as
defined in Section 5(d) hereof.
2. Incentive Bonus. Employee will be entitled to participate in the Company's
Management Incentive Program for an annual bonus based on the Company's
audited financial performance for the fiscal year as well as Employee's
individual contribution to the Company. Employee's target bonus shall be
65% of the Base Salary. Any Annual Bonus payable with respect to a fiscal
year shall be subject to the approval of the Compensation Committee of the
Board of Directors and shall be paid in accordance with Company's normal
payroll practices.
3. Car Allowance. Employee shall be provided an $800.00 per month car
allowance. At year-end, the value of this benefit will be reported as
required by the IRS regulations on Employee's Form W-2.
4. Financial Counseling. The Company shall reimburse you for the cost of
executive financial counseling services, using the financial planner of
your choice, in an amount not to exceed $10,000 per year.
5. Interest Free Loan. Employee shall be entitled to an interest-free loan of
up to $200,000 to be applied to a new home purchase, with the principal of
such loan subject to repayment to be reduced by 50% on the second
anniversary of the Effective Date, and the balance to be forgiven on the
third anniversary of employment. Employee will execute a promissory note
evidencing the loan substantially in the form of Exhibit B attached hereto.
6. Relocation. Employee shall be entitled to the relocation benefits set forth
below:
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EXECUTIVE RELOCATION PROGRAM ELEMENTS
TYPE OF ASSISTANCE
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-HOUSE HUNTING TRIP 2 trips 7 days for employee and spouse/partner
-RETURN TRIPS 2 return trips
-TEMPORARY LODGING 120 day Temporary Lodging and one time household
set-up @$500. 10 days rental car if necessary.
-TRIP HOME TO ASSIST WITH 1 trip
HOUSEHOLD MOVE
-MISCELLANEOUS MOVING One month of base salary up to $20,000
ALLOWANCE
HOME SALE ASSISTANCE Home Buyout with 60-day mandatory marketing
period. Includes payment of real estate
commission and closing costs.
HOME SALE INCENTIVE 3% of selling price if sold within 90 day period
($25,000 cap) (No tax assistance)
EQUITY ADVANCE At the time of guaranteed offer up to 90%
NEW HOME CLOSING COSTS Reimbursement non-recurring closing costs up to
3% of the purchase price
HOUSEHOLD GOODS SHIPMENT Company paid van line service. Shipment of up to
3 cars
FINAL MOVE/TRAVEL Reimbursement for airfare or mileage, meals and
lodging and rental car if auto has shipped.
LEASE CANCELLATION Not to exceed 3 month's rent
PAYBACK AGREEMENT Employee is responsible for repayment of
relocation benefits if employee leaves within 12
months
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