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EXHIBIT 10-S
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated and effective as of
November __, 1996, is entered into by and between FoxMeyer Health Corporation,
a Delaware corporation (the "COMPANY"), and Xxxxxx X. Xxxxxxx ("EMPLOYEE").
In consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. Employment. The Company hereby agrees to employ Employee, and
Employee hereby agrees to be employed by the Company, beginning on the date of
this Agreement through and including October 31, 1998 (the "TERM OF
EMPLOYMENT"). Notwithstanding the foregoing, the term of this Agreement shall
be automatically renewed for successive one year terms unless the Company
provides Employee with six (6) months prior written notice of its intent not to
renew this Agreement.
2. Position and Responsibilities. The Company hereby employs Employee
to serve as Senior Vice President. Employee shall have such duties,
responsibilities and authority as may, from time to time, be assigned to
Employee by the Chief Executive Officers of the Company.
3. Compensation. As compensation for all services performed or to be
performed by Employee under this Agreement, the Company shall compensate
Employee as follows:
a. Base Salary. The Company shall pay Employee a minimum
monthly base salary of $18,750 (as may be adjusted from time to time,
the "MONTHLY BASE SALARY"). During the term of this Agreement,
Employee's Monthly Base Salary shall be reviewed periodically to
determine whether such salary shall be adjusted in accordance with the
duties and responsibilities of Employee and his performance thereof,
but no adjustment shall reduce Employee's base salary below the
minimum Monthly Base Salary set forth above.
b. Annual Bonus. The Company shall pay Employee a minimum
annual bonus in the amount of $100,000 (the "Bonus"), which shall be
payable no later than November 30 of each year, commencing on November
30, 1997. The Bonus shall be in addition to Employee's Monthly Base
Salary, the Initial Bonus (as defined in Section 3(d) below) and any
amounts that may be paid to Employee under any Performance Incentive
Plan or other similar plan implemented by the Company.
c. Car Allowance. The Company shall pay Employee a minimum
monthly car allowance in the amount of $1,500.
d. Initial Bonus. Upon the execution date of this Agreement,
Employee shall receive the following additional compensation in
respect of Employee's decision to be employed by the Company and
thereby forego any additional compensation and severance benefits to
which he is or may be entitled from FoxMeyer Corporation, FoxMeyer
Drug
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Company and any purchasers thereof (which may exceed $400,000), and
for coordinating the separation and relocation of the Company
(collectively, the "INITIAL BONUS"):
(i) The Company shall pay Employee a cash signing bonus in
the amount of $300,000; and
(ii) The Company shall assign to Employee a fifty percent
(50%) interest in all amounts received by the Company
from the proceeds of any sale of any assets of or
interests in Alumet Partnership ("Alumet"), including
but not limited to the Company's partnership interest
in Alumet and/or any land, minerals or leases owned or
leased by Alumet and/or any royalty payments
therefrom. The assignment shall be executed and
delivered on the date hereof in the form of the
Assignment attached hereto as Exhibit A.
The Initial Bonus shall be deemed fully earned and payable upon the
execution of this Agreement.
e. Benefits, Incentives and Perquisites. Employee shall be
entitled to participate in the incentive, stock option and employee
benefit plans of the Company, including but not limited to a
Performance Incentive Plan to be implemented by the Company, and the
perquisites enjoyed by other employees with similar or same titles of
the Company as presently in effect or as they may be modified from
time to time, provided that the Company may not reduce the benefits
provided to Employee pursuant to Employee's life insurance, accidental
death and dismemberment, long-term disability and business travel
accident insurance during the term of this Agreement.
4. Termination. This Agreement may be terminated upon the following
terms:
a. Termination Upon Death. If Employee dies during the Term
of Employment, this Agreement shall terminate immediately.
b. Termination Upon Disability. The Company shall have the
right to terminate this Agreement upon the "Disability" of Employee by
providing ten (10) days written notice to Employee. "DISABILITY" as
used in this section shall mean any illness or any impairment of mind
or body that (i) renders it impossible or impracticable for Employee
to perform his duties and responsibilities hereunder for a continuous
period of at least six (6) months or (ii) is likely to prevent
Employee from performing his duties and responsibilities hereunder for
more than nine (9) months during any eighteen (18) month period, each
as determined in good faith by a physician selected by the Board of
Directors. The Company's selection of a physician shall be subject to
Employee's approval, which shall not be unreasonably withheld. Any
refusal without reasonable cause by Employee to submit to a medical
examination for the purpose of certifying Disability under this
section shall be deemed to constitute conclusive evidence of
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Employee's Disability. In the event of termination upon Disability,
Employee shall continue to receive the Monthly Base Salary in effect
at the time of termination (reduced by any amounts payable to
Employee as disability benefits under any Company plan, social
security or otherwise) for the remainder of the Term of Employment.
c. Termination for Cause. The Company shall have the right to
terminate this Agreement, and have no further obligation to Employee
under this Agreement, for "Cause" after giving written notice of
termination to Employee. "CAUSE" as used in this section shall mean:
(i) misconduct or negligence in the performance by Employee
of his duties and responsibilities hereunder;
(ii) the failure by Employee to follow any reasonable
directive of the Company's Chief Executive Officers in
carrying out his duties or responsibilities hereunder;
(iii) the failure by Employee to substantially achieve agreed
upon goals and objectives;
(iv) the theft or misappropriation of funds or the disclosure
of trade secrets or other confidential or proprietary
information in violation of Section 6 of this Agreement; or
(v) the conviction of Employee for (A) a crime involving an
act or acts of dishonesty or moral turpitude or (B) a felony.
d. Termination without Cause. The Company shall have the
right to terminate Employee's employment at any time without Cause
("TERMINATION WITHOUT CAUSE"). In the event of a Termination Without
Cause of Employee's employment, and provided that Employee complies
with Section 5 hereof, the Company agrees to provide Employee with:
(i) At Employee's option, (x) a single lump sum severance
payment equal to the amount of the total compensation that
would otherwise be paid by the Company to Employee during the
twelve (12) month period commencing on the effective date of
Termination Without Cause or (y) monthly severance payments
in the amount of Employee's total annual compensation during
the twelve (12) month period commencing on the effective date
of Termination Without Cause, divided by twelve (12), for a
period of twenty-four (24) months; and
(ii) For a period of six months commencing on the effective
date of Termination Without Cause, medical and dental
benefits coverage, less any
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amount that Employee is required to pay to receive such
medical and dental coverage had termination of his employment
not occurred.
Without in any way limiting the generality of what may be
deemed to constitute a Termination Without Cause hereunder, it is
hereby agreed that the following shall be deemed to constitute a
Termination Without Cause hereunder:
(I) Both Abbey X. Xxxxxx and Xxxxxx X. Xxxxxx no longer being
Chief Executive Officer or Chairman of the Board of the
Company; or
(II) Following the acquisition by any person or entity or
affiliated group of persons or entities (other than Abbey X.
Xxxxxx, Xxxxxx X. Xxxxxx or entities affiliated with either
of them) of more than fifty percent (50%) of the then
outstanding shares of common stock of the Company, (A) any
termination of Employee's employment for any reason (other
than death, Disability or the acts referred to in Sections
4(c)(iv) and (v)) or (B) any material reduction of Employee's
duties, responsibilities and authority;
provided, however, that either of the foregoing events shall
constitute a Termination Without Cause only if Employee remains
employed by the Company for a period of three (3) months after the
occurrence of such event.
e. Termination by Employee. Employee shall be entitled to
terminate his employment with the Company at any time. If Employee's
terminates his employment for Good Reason (as such term is defined
below), such termination shall be deemed a Termination Without Cause
under Section 4(d) of this Agreement. If Employee terminates without
Good Reason, Employee shall no longer be entitled to any form of
compensation, including but not limited to any Monthly Base Salary,
benefits, incentives, perquisites or vacation.
Without in any way limiting the generality of what may be
deemed to constitute a Good Reason hereunder, it is hereby agreed that
a termination by Employee shall be deemed for Good Reason if it is as
a result of or follows:
(i) A breach by the Company of this Agreement (including but
not limited to as a result of or following rejection of this
Agreement under any debtor relief or similar law);
(ii) A reduction in Employee's Monthly Base Salary as in
effect on the date hereof or as may be increased from time to
time;
(iii) The taking of any action by the Company that could be
deemed to constitute a Termination Without Cause; or
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(iv) The mandatory transfer of the permanent residence of
Employee to another geographic location more than 40 miles
from Dallas, Texas, except for required travel on Company
business to an extent substantially consistent with
Employee's prior business travel obligations.
5. Nondisclosure.
a. Employee acknowledges that during the course of the
performance of his services for the Company he will acquire
confidential and proprietary information with respect to the Company's
business operations (the "CONFIDENTIAL INFORMATION"). Employee agrees
that during the term of this Agreement and thereafter, Employee shall
not divulge any Confidential Information to any person, directly or
indirectly, except to the Company, its directors, officers, agents and
representatives and its subsidiaries and affiliated companies, or as
may reasonably be necessary in connection with his duties on behalf of
the Company or unless required by law.
b. Employee acknowledges that all documents, written
information, records, data, computer information and material, tapes,
film, maps and other material of any kind relating to Confidential
Information, including, without limitation, memoranda, notes,
sketches, records, reports, manuals, business plans and notebooks
(collectively, "MATERIALS") in Employee's possession or under his
control during the term of his employment hereunder are and shall
remain the property of the Company and agrees that if his relationship
with Company is terminated (for whatever reason), he shall not take
with him but shall leave with the Company all Materials and any copies
thereof or, if such Materials are not on the premises of the Company,
he shall return the same to the Company immediately upon his
termination.
c. This Section 5 shall survive any termination of this
Agreement and shall continue to bind Employee in accordance with its
terms. The existence of any claim or cause of action by Employee
against the Company whether predicated on this Agreement or otherwise,
shall not constitute a defense to the Company's enforcement of the
covenants contained in this Agreement.
6. Remedies. In the event that Employee breaches any of the provisions
of Section 5 above, in addition to any legal rights and remedies that the
Company may have to enforce the provisions of this Agreement, the Company shall
have no further obligations to Employee under this Agreement. In the event of
such a breach, Employee agrees that any and all proceeds, funds, payments and
proprietary interests of every kind and description arising from, or
attributable to, such breach shall be the sole and exclusive property of the
Company and the Company shall be entitled to recover any additional actual
damages incurred as a result of such breach.
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7. Injunctive Relief. Notwithstanding anything contained in this
Agreement to the contrary, in the event of a breach of the provisions of
Section 5 above, the Company shall, in
addition to any other remedies available under law, be entitled to an
injunction enjoining Employee or any person or persons acting for or with
Employee in any capacity whatsoever from violating any of the terms thereof.
8. Severability. If any provision of this Agreement shall for any
reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision was never contained herein and the remaining
provisions of this Agreement shall remain in full force and effect.
9. Waiver and Limitation. Any waiver by either party of a provision or
a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any other provision or subsequent breach of any provision
hereof.
10. Taxes. Employee shall be responsible for the payment of all
individual taxes on all amounts paid or benefits provided to him under this
Agreement. All compensation paid to Employee shall be subject to any
withholdings as from time to time may be required to be made pursuant to law,
government regulations or order, or by agreement with, or consent of, Employee.
11. No Funding. The right of Employee under this Agreement shall be
that of a general creditor of the Company and Employee shall have no preferred
claims on, or any beneficial ownership in, the assets of the Company.
12. Entire Agreement. Except as expressly provided herein, this
Agreement, the assignment attached hereto as Exhibit A, and the agreements,
documents and compensation, incentive and option plans referred to herein,
contain the entire agreement between the parties hereto relating to the subject
matter hereof and supersede any and all other prior or contemporaneous
employment, compensation, incentive or retirement agreements, either oral or in
writing, between the parties.
13. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
legatees, legal representatives, successors and assigns. Employee may not
assign any of his rights or responsibilities under this Agreement.
14. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally,
mailed by certified mail (return receipt requested) or sent by overnight
delivery service, cable, telegram, facsimile transmission or telex to the
parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice:
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a. if to the Company:
FoxMeyer Health Corporation
Attention: Abbey X. Xxxxxx
000 Xxxx Xxxx, Xxx 000
Xxxxxxxxxxx Xxxxx, Xxx Xxxx 00000
b. if to Employee:
Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
15. Headings. Section and subsection headings used in this Agreement
have been inserted solely for convenience of reference and do not constitute a
part of this Agreement and are not intended to affect the interpretation of any
provision of this Agreement.
16. Amendments. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
17. Governing Law. This Agreement and all performance hereunder shall
be governed by and construed in accordance with the laws of the State of Texas
without regard to the principles of conflict of laws thereof.
18. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date and year first above written.
FOXMEYER HEALTH CORPORATION
By:
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Abbey X. Xxxxxx
Chief Executive Officer
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Xxxxxx X. Xxxxxxx
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EXHIBIT A
FORM OF ASSIGNMENT
