EXHIBIT 10-E
TERMINATION BENEFITS AGREEMENT
This Termination Benefits Agreement ("Agreement") is made and entered
into as of July 1, 1996 by and between Priority Healthcare Corporation, an
Indiana corporation (hereinafter referred to as the "Corporation") and Xxxxxx X.
Xxxxx, a resident of the State of Indiana (hereinafter referred to as
"Employee").
W I T N E S S E T H
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WHEREAS, Employee is now serving as President and Chief Operating
Officer of the Corporation; and
WHEREAS, the Corporation believes that Employee has made valuable
contributions to the productivity and profitability of the Corporation; and
WHEREAS, the Corporation desires to encourage Employee to continue to
make such contributions and not to seek or accept employment elsewhere; and
WHEREAS, the Corporation, therefore, desires to assure Employee of
certain benefits in case of any termination or significant redefinition of the
terms of his employment with the Corporation subsequent to any Change in Control
of the Corporation;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained and the mutual benefits herein provided, the
Corporation and Employee hereby agree as follows:
1. The term of this Agreement shall be from the date hereof through
December 31, 1998; provided, however, that such term shall be automatically
extended for an additional year on December 31, 1996 and on December 31 of each
year thereafter unless either party hereto gives written notice to the other
party not to so extend prior to November 30 of the year for which notice is
given, in which case no further automatic extension shall occur and the term of
this Agreement shall end on December 31 three (3) years subsequent to the date
of the latest preceding automatic extension. Notwithstanding the foregoing, if a
Change in Control of the Corporation (as defined in Section 2 below) shall occur
prior to the expiration of the original term or any extensions of the term of
this Agreement, then the term of this Agreement shall automatically become a
term of three (3) years commencing on the date of any such Change in Control.
2. As used in this Agreement, "Change in Control" of the Corporation
means, but only after the Corporation has a class of equity securities
registered under Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"):
(A) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act as in effect from time to time) of twenty-five percent
(25%) or more of either (i) the then outstanding shares of common stock of
the Corporation or (ii) the combined voting power of the then outstanding
voting securities of the Corporation entitled to vote generally in the
election of directors; provided, however, that the following acquisitions
shall not constitute an acquisition of control: (i) any acquisition
directly from the Corporation (excluding an acquisition by virtue of the
exercise of a conversion privilege), (ii) any acquisition by the
Corporation, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any corporation
controlled by the Corporation, (iv) any acquisition by any corporation
pursuant to a reorganization, merger or consolidation, if, following such
reorganization, merger or consolidation, the conditions described in
clauses (i), (ii) and (iii) of subsection (C) of this Section 2 are
satisfied, (v) any acquisition by any Person in connection with a spin off
of the Corporation's common stock by its parent, Bindley Western
Industries, Inc., (vi) any acquisition by Xxxxxxx X. Xxxxxxx or (vii) upon
the death of Xxxxxxx X. Xxxxxxx, any acquisition triggered by his death by
operation of law, by any testamentary bequest or by the terms of any trust
or other contractual arrangement established by him;
(B) Individuals who, as of the date hereof, constitute the Board of
Directors of the Corporation (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board of Directors of the
Corporation (the "Board"); provided, however, that any individual becoming
a director subsequent to the date hereof whose election, or nomination for
election by the Corporation's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent
Board, 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 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened
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solicitation of proxies or consents by or on behalf of a Person other than
the Board; or
(C) Approval by the shareholders of the Corporation of a
reorganization, merger or consolidation, in each case, unless, following
such reorganization, merger or consolidation, (i) more than sixty percent
(60%) of, respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or consolidation and
the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively,
of the outstanding Corporation common stock and outstanding Corporation
voting securities immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation, of the
outstanding Corporation stock and outstanding Corporation voting
securities, as the case may be, (ii) no Person (excluding the Corporation,
any employee benefit plan or related trust of the Corporation or such
corporation resulting from such reorganization, merger or consolidation and
any Person beneficially owning, immediately prior to such reorganization,
merger or consolidation, directly or indirectly, twenty-five percent (25%)
or more of the outstanding Corporation common stock or outstanding voting
securities, as the case may be) beneficially owns, directly or indirectly,
twenty-five percent (25%) or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
reorganization, merger or consolidation or the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such
reorganization, merger or consolidation were members of the Incumbent Board
at the time of the execution of the initial agreement providing for such
reorganization, merger or consolidation; or
(D) Approval by the shareholders of the Corporation of (i) a complete
liquidation or dissolution of the Corporation or (ii) the sale or other
disposition of all or substantially all of the assets of the Corporation,
other than to a corporation
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with respect to which following such sale or other disposition (a) more
than sixty percent (60%) of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the outstanding
Corporation common stock and outstanding Corporation voting securities
immediately prior to such sale or other disposition in substantially the
same proportion as their ownership, immediately prior to such sale or other
disposition, of the outstanding Corporation common stock and outstanding
Corporation voting securities, as the case may be, (b) no Person (excluding
the Corporation and any employee benefit plan or related trust of the
Corporation or such corporation and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or
indirectly, twenty-five percent (25%) or more of the outstanding
Corporation common stock or outstanding Corporation voting securities, as
the case may be) beneficially owns, directly or indirectly, twenty-five
percent (25%) or more of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (c) at least a majority of the
members of the board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial agreement or
action of the Board providing for such sale or other disposition of assets
of the Corporation.
(E) Before the Corporation has a class of equity securities
registered under Section 12 of the Exchange Act, a "Change in Control" of
the Corporation for purposes of this Agreement shall mean a change in
control of Bindley Western Industries, Inc. A change in control of Bindley
Western Industries, Inc. shall be determined in the same manner as a change
in control of the Corporation under the foregoing subsections (A) through
(D) of this Section 2, except that "Bindley Western Industries, Inc." shall
be substituted for "Corporation" in each of said subsections. The parties
hereto agree that the sale or other disposition of all or substantially all
of the assets of the Bindley Western Drug Company division of Bindley
Western
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Industries, Inc. shall not constitute a sale or other disposition of all or
substantially all of the assets of Bindley Western Industries, Inc. under
subsection (D) of this Section 2.
3. The Corporation shall provide Employee with the benefits set
forth in Section 6 of this Agreement upon any termination of Employee's
employment by the Corporation following a Change in Control for any reason
except the following:
(A) Termination by reason of Employee's death.
(B) Termination by reason of Employee's "disability". For purposes
hereof, "disability" shall be defined as Employee's inability by reason of
illness or other physical or mental disability to perform the duties
required by his employment for any consecutive One Hundred Eighty (180) day
period, provided that notice of any termination by the Corporation because
of Employee's "disability" shall have been given to Employee prior to the
resumption by him of the performance of such duties.
(C) Termination upon Employee reaching his normal retirement date,
which for purposes of this Agreement shall be deemed to be the end of the
month during which employee reaches sixty-five (65) years of age.
(D) Termination for "cause". As used in this Agreement, the term
"cause" means fraud, dishonesty, theft of corporate assets, or other gross
misconduct by Employee. Notwithstanding the foregoing, Employee shall not
be deemed to have been terminated for cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of
the Corporation's Board at a meeting called and held for the purpose (after
reasonable notice to him and an opportunity for him, together with his
counsel, to be heard before such Board), finding that, in the good faith
opinion of such Board, Employee was guilty of conduct constituting "cause"
and specifying the particulars thereof in detail.
4. The Corporation shall also provide Employee with the benefits set
forth in Section 6 of this Agreement upon any termination of Employee's
employment with the Corporation at Employee's option after a Change in Control
followed by the happening of any one of the following events:
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(A) Without Employee's express written consent, the assignment of
Employee to any duties which, in Employee's reasonable judgment, are
materially inconsistent with his positions, duties, responsibilities or
status with the Corporation immediately prior to the Change in Control or a
substantial reduction of his duties or responsibilities which, in
Employee's reasonable opinion, does not represent a promotion from his
position, duties or responsibilities immediately prior to the Change in
Control.
(B) A reduction by the Corporation in Employee's salary from the level
of such salary immediately prior to the Change in Control or the
Corporation's failure to increase (within twelve (12) months of Employee's
last increase in base salary) Employee's base salary after a Change in
Control in an amount which at least equals, on a percentage basis, the
average percentage increase in base salary for all executive and senior
officers of the Corporation effected in the preceding twelve (12) months.
(C) The failure by the Corporation to continue in effect any
incentive, bonus or other compensation plan in which Employee participates,
including but not limited to the Corporation's stock option plans, unless
an equitable arrangement (embodied in an ongoing substitute or alternative
plan), with which Employee has consented, has been made with respect to
such plan in connection with the Change in Control, or the failure by the
Corporation to continue Employee's participation therein, or any action by
the Corporation which would directly or indirectly materially reduce
Employee's participation therein.
(D) The failure by the Corporation to continue to provide Employee
with benefits substantially similar to those enjoyed by Employee or to
which Employee was entitled under any of the Corporation's principal
pension, profit sharing, life insurance, medical, dental, health and
accident, or disability plans in which Employee was participating at the
time of a Change in Control, the taking of any action by the Corporation
which would directly or indirectly materially reduce any of such benefits
or deprive Employee of any material fringe benefit enjoyed by Employee or
to which Employee was entitled at the time of the Change in Control, or the
failure by the Corporation to provide Employee with the number of paid
vacation and sick leave days to which Employee is
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entitled on the basis of years of service or position with the Corporation
in accordance with the Corporation's normal vacation policy in effect on
the date hereof.
(E) The Corporation's requiring Employee to be based anywhere other
than the metropolitan area where the Corporation office at which he was
based immediately prior to the Change in Control was located, except for
required travel on the Corporation's business in accordance with the
Corporation's past management practices.
(F) Any failure of the Corporation to obtain the assumption of the
obligation to perform this Agreement by any successor as contemplated in
Section 10 hereof.
(G) Any failure by the Corporation or its shareholders, as the case
may be, to reappoint or reelect Employee to a corporate office held by him
immediately prior to the Change in Control or his removal from any such
office including any seat held at such time on the Corporation's Board of
Directors.
(H) The effectiveness of a resignation, tendered at any time, either
before or after a Change in Control and regardless of whether formally
characterized as voluntary or otherwise, by Employee of any corporate
office held by him immediately prior to the Change in Control or of any
seat held at such time on the Corporation's Board of Directors, at the
request of the Corporation or at the request of the person obtaining
control of the Corporation in such Change in Control.
(I) Any purported termination of the Employee's employment which is
not effected pursuant to a Notice of Termination satisfying the
requirements of Section 5 hereof (and, if applicable, Section 3(D) hereof);
and for purposes of this Agreement, no such purported termination shall be
effective.
(J) Any request by the Corporation that Employee participate in an
unlawful act or take any action constituting a breach of Employee's
professional standard of conduct.
(K) Any breach by the Corporation of any of the provisions of this
Agreement or any failure by the Corporation to carry out any of its
obligations hereunder.
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Notwithstanding anything in this Section 4 to the contrary, Employee's right to
terminate Employee's employment pursuant to this Section 4 shall not be affected
by Employee's incapacity due to physical or mental illness.
5. Any termination of Employee's employment with the Corporation as
contemplated by Section 3 hereof (except subsection 3(A)) or by Employee as
contemplated by Section 4 hereof shall be communicated by written "Notice of
Termination" to the other party hereto. Any "Notice of Termination" given by
Employee pursuant to Section 4 or given by the Corporation in connection with a
termination as to which the Corporation believes it is not obligated to provide
Employee with benefits set forth in Section 6 hereof shall indicate the specific
provisions of this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for such
termination.
6. Subject to the conditions and exceptions set forth in Section 3
and Section 4 hereof, the following benefits, less any amounts required to be
withheld therefrom under any applicable federal, state or local income tax,
other tax, or social security laws or similar statutes, shall be paid to
Employee upon any termination of his employment with the Corporation subsequent
to a Change in Control:
(A) Within thirty (30) days following such a termination, Employee
shall be paid, at his then-effective salary, for services performed through
the date of his termination. In addition, any earned but unpaid amount of
any bonus or incentive payment shall be paid to Employee within thirty (30)
days following the termination of his employment.
(B) Within thirty (30) days following such a termination, Employee
shall be paid a lump sum payment of an amount equal to two and nine-tenths
(2.9) times Employee's "Base Amount." For purposes hereof, Base Amount is
defined as Employee's average includable compensation paid by the
Corporation for the five (5) most recent taxable years ending before the
date on which the Change in Control occurs. The definition, interpretation
and calculation of the dollar amount of Base Amount shall be in a manner
consistent with and as required by the provisions of Section 280G of the
Internal Revenue Code of 1986, as amended ("Code"), and the regulations and
rulings of the Internal Revenue Service promulgated thereunder.
(C) (i) In the event that any payment or benefit (within the meaning
of Section 280G(b)(2) of the Code)
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paid or payable to the Employee or for his benefit pursuant to the terms of
this Agreement or otherwise in connection with, or arising out of, his
employment with the Corporation or a change in ownership or effective
control of the Corporation or of a substantial portion of its assets (a
"Payment" or "Payments"), would be subject to the excise tax imposed by
Section 4999 of the Code or any interest, penalties, additional tax or
similar items are incurred by the Employee with respect to such excise tax
(such excise tax, together with any such interest, penalties, additional
tax or similar items are hereinafter collectively referred to as the
"Excise Tax"), then the Employee will be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Employee of all taxes (including any interest, penalties, additional tax or
similar items imposed with respect thereto and the Excise Tax) including
any Excise Tax imposed upon the Gross-Up Payment, the Employee retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(ii) An initial determination as to whether a Gross-Up Payment is
required pursuant to this Agreement and the amount of such Gross-Up Payment
shall be made at the Corporation's expense by an accounting firm selected
by the Corporation and reasonably acceptable to the Employee which is
designated as one of the five largest accounting firms in the United States
(the "Accounting Firm"). The Accounting Firm shall provide its
determination (the "Determination"), together with detailed supporting
calculations and documentation to the Corporation and the Employee within
ten days of the Termination Date if applicable, or such other time as
requested by the Corporation or by the Employee and if the Accounting Firm
determines that no Excise Tax is payable by the Employee with respect to a
Payment or Payments, it shall furnish the Employee with an opinion
reasonably acceptable to the Employee that no Excise Tax will be imposed
with respect to any such Payment or Payments. Within ten days of the
delivery of the Determination to the Employee, the Employee shall have the
right to dispute the Determination (the "Dispute"). The Gross-Up Payment,
if any, as determined pursuant to this subsection 6(c)(ii) shall be paid by
the Corporation to the Employee within five days of the receipt of the
Accounting Firm's Determination. The existence of the Dispute shall not in
any way affect the Employee's right to receive the Gross-Up Payment in
accordance with the Determination. If there is no Dispute, the
Determination shall be binding, final and
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conclusive upon the Corporation and the Employee subject to the application
of subsection 6(c)(iii) below.
(iii) As a result of the uncertainty in 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 "Excess
Payment") 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 (a) upon notice (formal or informal) to
the Employee from any governmental taxing authority that the Employee's tax
liability (whether in respect of the Employee's current taxable year or in
respect of any prior taxable year) may be increased by reason of the
imposition of the Excise Tax on a Payment or Payments with respect to which
the Corporation has failed to make a sufficient Gross-Up Payment, (b) upon
a determination by a court, (c) by reason of determination by the
Corporation (which shall include the position taken by the Corporation,
together with its consolidated group, on its federal income tax return) or
(d) upon the resolution of the Dispute to the Employee's satisfaction. If
an Underpayment occurs, the Employee shall promptly notify the Corporation
and the Corporation shall promptly, but in any event, at least five days
prior to the date on which the applicable government taxing authority has
requested payment, pay to the Employee an additional Gross-Up Payment equal
to the amount of the Underpayment plus any interest, penalties, additional
taxes or similar items imposed on the Underpayment. An Excess Payment
shall be deemed to have occurred upon a "Final Determination" (as
hereinafter defined) that the Excise Tax shall not be imposed upon a
Payment or Payments (or portion thereof) with respect to which the Employee
had previously received a Gross-Up Payment. A "Final Determination" shall
be deemed to have occurred when the Employee has received from the
applicable government taxing authority a refund of taxes or other reduction
in the Employee's tax liability by reason of the Excise Payment and upon
either (x) the date a determination is made by, or an agreement is entered
into with, the applicable governmental taxing authority which finally and
conclusively binds the Employee and such taxing authority, or in the event
that a claim 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
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resolved or the time for all appeals has expired or (y) the statute of
limitations with respect to the Employee's applicable tax return has
expired. If an Excess Payment is determined to have been made, the amount
of the Excess Payment shall be treated as a loan by the Corporation to the
Employee and the Employee shall pay to the Corporation on demand (but not
less than 10 days after the Final Determination of such Excess Payment and
written notice has been delivered to the Employee) the amount of the Excess
Payment plus interest at an annual rate equal to the Applicable Federal
Rate provided for in Section 1274(d) of the Code from the date the Gross-Up
Payment (to which the Excess Payment relates) was paid to the Employee
until the date of repayment to the Corporation.
(iv) Notwithstanding anything contained in this Agreement to the
contrary, in the event that, according to the Determination, an Excise Tax
will be imposed on any Payment or Payments, the Corporation shall pay to
the applicable government taxing authorities as Excise Tax withholding, the
amount of the Excise Tax that the Corporation has actually withheld from
the Payment or Payments.
(D) Employee acknowledges and agrees that payment in accordance with
subsections 6(A), 6(B) and 6(C) shall be deemed to constitute a full
settlement and discharge of any and all obligations of the Corporation to
Employee arising out of his employment with the Corporation and the
termination thereof, except for any vested rights Employee may then have
under any insurance, pension, supplemental pension, thrift, employee stock
ownership, or stock option plans sponsored or made available by the
Corporation.
7. The Corporation is aware that upon the occurrence of a Change in
Control the Board of Directors or a shareholder of the Corporation may then
cause or attempt to cause the Corporation to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the
Corporation to institute, or may institute, litigation seeking to have this
Agreement declared unenforceable, or may take or attempt to take other action to
deny Employee the benefits intended under this Agreement. In these
circumstances, the purpose of this Agreement could be frustrated. It is the
intent of the Corporation that Employee not be required to incur the expenses
associated with the enforcement of his rights under this Agreement by litigation
or other legal action, nor be bound to negotiate any settlement of his rights
hereunder, because the cost and expense of such legal action or settlement would
substantially detract from the
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benefits intended to be extended to Employee hereunder. Accordingly, if
following a Change in Control it should appear to Employee that the Corporation
has failed to comply with any of its obligations under this Agreement or in the
event that the Corporation or any other person takes any action to declare this
Agreement void or unenforceable, or institutes any litigation or other legal
action designed to deny, diminish or to recover from Employee the benefits
entitled to be provided to the Employee hereunder, and that Employee has
complied with all of his obligations under this Agreement, the Corporation
irrevocably authorizes Employee from time to time to retain counsel of his
choice, at the expense of the Corporation as provided in this Section 7, to
represent Employee in connection with the initiation or defense of any
litigation or other legal action, whether such action is by or against the
Corporation or any director, officer, shareholder, or other person affiliated
with the Corporation, in any jurisdiction. Notwithstanding any existing or
prior attorney-client relationship between the Corporation and such counsel, the
Corporation irrevocably consents to Employee entering into an attorney-client
relationship with such counsel, and in that connection the Corporation and
Employee agree that a confidential relationship shall exist between Employee and
such counsel. The reasonable fees and expenses of counsel selected from time to
time by Employee as hereinabove provided shall be paid or reimbursed to Employee
by the Corporation on a regular, periodic basis upon presentation by Employee of
a statement or statements prepared by such counsel in accordance with its
customary practices, up to a maximum aggregate amount of One Hundred Thousand
Dollars ($100,000). Any legal expenses incurred by the Corporation by reason of
any dispute between the parties as to enforceability of or the terms contained
in this Agreement as provided by this Section 7, notwithstanding the outcome of
any such dispute, shall be the sole responsibility of the Corporation, and the
Corporation shall not take any action to seek reimbursement from Employee for
such expenses. Notwithstanding any limitation contained in this Section 7 to
the contrary, Employee shall be entitled to payment or reimbursement of legal
expenses in excess of One Hundred Thousand Dollars ($100,000) if the expenses
were incurred as a result of a dispute under this Agreement in which Employee
obtains a final judgment in his favor from a court of competent jurisdiction or
his claim is settled by the Corporation prior to the rendering of a judgment by
such a court.
8. Employee is not required to mitigate the amount of benefit
payments to be made by the Corporation pursuant to this Agreement by seeking
other employment or otherwise, nor shall the amount of any benefit payments
provided for in this Agreement be reduced by any compensation earned by Employee
as a result of employment by another employer or which might have been earned by
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Employee had Employee sought such employment, after the date of termination of
his employment with the Corporation or otherwise.
9. In order to induce the Corporation to enter into this Agreement,
Employee hereby agrees as follows:
(A) He will keep confidential and not improperly divulge for the
benefit of any other party any of the Corporation's confidential
information and business secrets including, but not limited to,
confidential information and business secrets relating to such matters as
the Corporation's finances, operations and customer lists. All of the
Corporation's confidential information and business secrets shall be the
sole and exclusive property of the Corporation.
(B) For a period of two years after Employee's employment with the
Corporation ceases, Employee shall not either on his own account or for any
other person, firm or company solicit or endeavor to cause any employee of
the Corporation to leave his employment or to induce or attempt to induce
any such employee to breach any employment agreement with the Corporation.
In the event of a breach or threatened breach by Employee of the provisions of
this Section 9, the Corporation shall be entitled to an injunction restraining
Employee from committing or continuing such breach. Nothing herein contained
shall be construed as prohibiting the Corporation from pursuing any other
remedies available to it for such breach or threatened breach including the
recovery of damages from Employee. The covenants of this Section 9 shall run
not only in favor of the Corporation and its successors and assigns, but also in
favor of its subsidiaries and their respective successors and assigns and shall
survive the termination of this Agreement.
10. The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation, by agreement
in form and substance satisfactory to Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession had taken
place. Failure of the Corporation to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Employee to compensation from the Corporation in the same amount
and on the same terms as Employee would be entitled hereunder if he were to
terminate his employment pursuant to Section 4 hereof, except that for purposes
of implementing the foregoing, the date on which succession becomes effective
shall be deemed the date of
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termination of Employee's employment with the Corporation. As used in this
Agreement, "Corporation" shall mean corporation as hereinbefore defined and any
successor to the business or assets of it as aforesaid which executes and
delivers the agreement provided for in this Section 10 or which otherwise
becomes bound by all of the terms and provisions of this Agreement by operation
of law.
11. Should Employee die while any amounts are payable to him
hereunder, this Agreement shall inure to the benefit of and be enforceable by
Employee's executors, administrators, heirs, distributees, devisees and legatees
and all amounts payable hereunder shall be paid in accordance with the terms of
this Agreement to Employee's devisee, legatee or other designee or if there be
no such designee, to his estate.
12. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Employee:
Xxxxxx X. Xxxxx
_________________________
_________________________
If to the Corporation:
Priority Healthcare Corporation
00000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
or to such other address as any party may have furnished to the other party in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. The validity, interpretation, and performance of this Agreement
shall be governed by the laws of the State of Indiana. The parties agree that
all legal disputes regarding this Agreement will be resolved in Indianapolis,
Indiana, and irrevocably consent to service of process in such City for such
purpose.
14. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by Employee and the Corporation. No waiver by any party hereto at any
time of any
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breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or any
prior or subsequent time. No agreements or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
any party which are not set forth expressly in this Agreement.
15. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
16. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together will constitute
one and the same Agreement.
17. This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder, except as provided in Section
10 and Section 11 above. Without limiting the foregoing, Employee's right to
receive payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer by
his Will or by the laws of descent and distribution as set forth in Section 11
hereof, and in the event of any attempted assignment or transfer contrary to
this Section 17, the Corporation shall have no liability to pay any amount so
attempted to be assigned or transferred.
Any benefits payable under this Agreement shall be paid solely from
the general assets of the Corporation. Neither Employee nor Employee's
beneficiary shall have interest in any specific assets of the Corporation under
the terms of this Agreement. This Agreement shall not be considered to create
an escrow account, trust fund or other funding arrangement of any kind or a
fiduciary relationship between Employee and the Corporation.
-15-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
PRIORITY HEALTHCARE CORPORATION
("Corporation")
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, Chairman
of the Board and Chief
Executive Officer
/S/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx ("Employee")
-16-
