WAIVER AND MODIFICATION
Exhibit
10.1
This
waiver and modification (this “Waiver”) is made and entered into by the
undersigned executive (the “Executive”) and Express Scripts, Inc. (“ESI”)
effective as of December 15, 2006.
RECITALS:
A. The
Executive
is an employee and executive officer of Express Scripts, Inc. (“ESI”), and is a
party to an Executive Employment Agreement with ESI (the “Employment
Agreement”).
B. On
December 12, 2006, ESI’s Board of Directors (the “Board”) authorized ESI to make
an offer to acquire all of the outstanding common stock of Caremark Rx, Inc.
(“Caremark”), which offer may be revised or adjusted by the Board or the
Transaction Committee of the Board (the “Offer”).
C. The
Executive
has received one or more Awards under the Express Scripts, Inc. 2000 Long Term
Incentive Plan, as amended (the “Plan”), each of which is subject to the
specific terms of such Award and the Plan.
D. Pursuant
to
Section 2(g)(iii) of the Plan a “Change in Control” is deemed to occur upon a
merger or certain other “Business Combinations” (as defined in the plan), unless
each of the conditions in Subsections (A), (B) and (C) of Section 2(g)(iii)
are
satisfied. The condition in Subsection 2(g)(iii)(A) is as follows:
“all
or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of, respectively, the
then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election
of
directors or other governing body, as the case may be, of the entity resulting
from such Business Combination (including, without limitation, an entity that
as
a result of such transaction owns the Company through one or more
subsidiaries)”.
E. Because
a
successful transaction resulting from the Offer could ultimately be structured
in a variety of ways, it is possible that a Business Combination could result
in
the stockholders of Caremark holding greater than 50% of the common stock of
the
surviving entity, even though ESI’s Board and management remain in control of
the surviving entity following such Business Combination, thus constituting
a
Change in Control under Section 2(g)(iii) of the Plan and the Employment
Agreement (which specifically adopts the Change in Control definition under
the
Plan).
NOW,
THEREFORE, in order to facilitate a possible transaction as described above,
and
for other good and valuable consideration, the parties hereby agree as
follows:
1. Any
Business
Combination involving ESI and Caremark resulting directly or indirectly from
the
Offer, after which at least a majority of the members of the board of directors
or other governing body of the entity resulting from such Business Combination
were members of the Board at the time of the execution of the initial agreement
setting forth the terms of the Business Combination, shall not constitute a
Change in Control under Section 2(g)(iii) of the Plan (including as it would
apply to the Employment Agreement).
2. The
appropriate agreement or notice with respect to each Award granted to the
Executive, and the Employment Agreement, are each hereby amended and modified
to
reflect the foregoing.
IN
WITNESS WHEREOF, this Waiver and Modification has been duly executed and
delivered as of the effective date set forth above.
Executive:
________________________________________
Name:_________________________________________
|
Express
Scripts, Inc.
By:__________________________________________
Name: _______________________________________
Title:
________________________________________
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