EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTION
COPY
This
Executive Employment Agreement (the “Agreement”) dated as of April 1, 2008 (the
“Effective Date”), by and between Express Scripts, Inc., a Delaware corporation
(the “Company”), and Xxxxxxx X. Xxxx (“Executive”).
ARTICLE
I
As used
herein, the following terms shall have the following meanings:
1.1 “Accrued Rights” has
the meaning set forth in Section 4.1.
1.2 “Annual Base Salary”
means the base salary set forth in Section 3.1 hereof.
1.3 “Annual Bonus” means
Executive’s annual bonus granted pursuant to the Annual Bonus Plan, as described
in Section 3.2 hereof.
1.4 “Annual Bonus Plan”
means the annual bonus program established for senior executives by the Board of
Directors of the Company (the “Board”) or by the Committee, as adopted or
amended from time to time.
1.5 “Bonus Potential”
means the maximum bonus amount Executive could receive pursuant to Section 3.2
hereof for achieving 100% of “base” or “targeted” performance goals established
by the Board or Committee under the Annual Bonus Plan with respect to the
applicable fiscal year; provided, however, in no event
shall Executive’s Bonus Potential for the year in which the Bonus Potential is
being determined (a) be less than 70% of Executive’s Annual Base Salary as in
effect on January 1 of such year or (b) take into account, or include in any
way, any increase in Executive’s bonus amount due to the Company exceeding its
“base” or “target” goals for such year (e.g., if Executive’s “base” or “target”
Bonus Potential is stated at $50,000, but Executive is eligible to receive more
than $50,000 if certain targets are exceeded then Executive’s Bonus Potential
for purposes of this definition is $50,000).
1.6 “Cause”
means:
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(a)
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any
act or acts by Executive, whether or not in connection with his or her
employment by the Company, constituting, or Executive’s conviction or plea
of guilty or nolo contendere (no contest) to, (i) a felony under
applicable law or (ii) a misdemeanor involving moral
turpitude;
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(b)
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any
act or acts of gross dishonesty or gross misconduct in the performance of
Executive’s duties hereunder;
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(c)
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any
willful malfeasance or willful misconduct by Executive in connection with
Executive’s duties hereunder or any act or omission which is materially
injurious to the financial condition or business reputation of the Company
or its affiliates; or
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(d)
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any
breach by Executive of the provisions of Sections 5.1 through 5.3 of this
Agreement, or of the terms and provisions of the Nondisclosure and
Noncompetition Agreement (as defined in Section 1.18
hereof).
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Notwithstanding
the foregoing, the event(s) described in clause (c) of this Section 1.6 shall
not be deemed to constitute “Cause” if such event is (i) primarily the result of
bad judgment or negligence on the part of Executive not rising to the level of
gross negligence; or (ii) primarily because of an act or omission believed by
Executive in good faith to have been in, or not opposed to, the interests of the
Company and its affiliates.
1.7 “Change in Control”
means a Change in Control as that term is defined in the Incentive Plan (as
defined in Section 1.16 hereof).
1.8 “Code” means the
Internal Revenue Code of 1986, as amended.
1.9 “Committee” means the
Compensation and Development Committee of the Board.
1.10 “Covered Payments”
means the amounts described in Section 6.12(a) hereof.
1.11 “Disability” has the
meaning ascribed to such term in the Incentive Plan.
1.12 “Effective Date” means
the date specified in the recitals to this Agreement.
1.13 “Employment Period”
means the Initial Employment Period (as defined in Section 1.17 hereof) plus any
additional Renewal Periods (as defined in Section 1.20 hereof).
1.14 “Excise Tax” means the
excise tax imposed by Section 4999 of the Code or any similar state or local tax
that may be imposed.
1.15 “Good Reason” means
the occurrence of any one or more of the following:
(a) Any
material breach by the Company of any of the provisions of this Agreement or any
material failure by the Company to carry out any of its obligations
hereunder;
(b) The
Company’s requiring Executive to be based at any office or location more than 50
miles from Xxx Xxxxxxx Xxx, Xxxxx Xxxxx, Xxxxxxxx (the “Current Headquarters”),
except for travel reasonably required in the performance of Executive’s
responsibilities to the extent substantially consistent with Executive’s
business travel obligations;
(c) Any
substantial and sustained diminution in Executive’s authority or
responsibilities from those described in Section 2.3 hereof; provided, however,
notwithstanding the foregoing, (i) in the event a Change in Control shall occur
which results in the Company becoming a subsidiary of another pharmacy benefit
management company (“PBM”), or which is in the form of a merger in which the
surviving corporation or entity is a PBM (x) so long as Executive is
offered a position as an officer of the parent PBM (or surviving corporation or
entity) with duties and responsibilities which are not inconsistent in any
material adverse respect with his or her duties and responsibilities immediately
prior to such Change in Control, and such position is based at an office or
location not more than 50 miles from the Current Headquarters, such change in
position shall not constitute Good Reason, but (y) if Executive is not offered a
position as an officer of the parent PBM or surviving corporation or entity as
described in (x), a substantial and sustained diminution in Executive’s
authority or responsibility shall be deemed to have occurred; or (ii) in the
event a Change in Control shall occur which results in the Company becoming a
subsidiary of a non-PBM or is in the form of a merger in which the surviving
corporation or entity is not a PBM, failure to receive an offer to serve as an
officer of the non-PBM parent or surviving corporation or entity shall not
constitute Good Reason provided Executive’s duties subsequent to the Change in
Control are not inconsistent in any material adverse respect with his or her
duties immediately prior to the Change in Control, and such position is based at
an office or location not more than 50 miles from the Current
Headquarters;
(d) The
failure by the Company to continue to provide Executive with substantially
similar perquisites or benefits Executive enjoyed in the aggregate under the
Company’s benefit programs (other than long-term incentive compensation
programs), such as any of the Company’s pension, savings, vacation, life
insurance, medical, health and accident, or disability plans in which he or she
was participating at the time of any such discontinuation (or, alternatively, if
such plans are amended, modified or discontinued, substantially similar
equivalent benefits thereto in the aggregate), or the taking of any action by
the Company which would directly or indirectly cause such benefits to be no
longer substantially equivalent in the aggregate to the benefits in effect
immediately prior to taking such action; provided, that any
amendment, modification or discontinuation of any plans or benefits referred to
in this subsection (d) hereof that generally affect substantially all other
domestic salaried employees of the Company who were eligible to participate, and
participated, in the affected Company benefit program(s) shall not be deemed to
constitute Good Reason; and
(e) The
timely delivery by the Company to the Executive of notice under Section 2.2,
indicating that the Company does not desire to renew this Agreement for an
additional Renewal Period, unless the Employment Period during which such notice
is delivered is scheduled to end after the Executive has attained the age of
65;
provided that the
events described in Section 1.15 (a), (b), (c) or (d) above shall only
constitute Good Reason if the Company fails to cure such event within 30 days
after receipt from Executive of written notice of the event which constitutes
Good Reason; and provided further that, “Good Reason” shall cease to exist for
an event on the 120th day following the later of its occurrence or Executive’s
knowledge thereof, unless Executive has given the Company written notice thereof
prior to such date.
1.16 “Incentive Plan” means
the Express Scripts, Inc. 2000 Long-Term Incentive Plan, as amended from time to
time.
1.17 “Initial Employment
Period” has the meaning set forth in Section 2.2 hereof.
1.18 “Nondisclosure and
Noncompetition Agreement” means the Form of Nondisclosure and
Noncompetition Agreement entered into by and between Executive and the Company
dated as of April 1, 2008.
1.19 “Payment Cap” means
the maximum amount described in Section 6.12(b) hereof.
1.20 “Renewal Period” has
the meaning set forth in Section 2.2 hereof.
1.21 “Retirement” means the
voluntary termination of employment by Executive on or after attaining age 59
1/2.
1.22 “Severance Benefit”
means a severance payment in an amount equal to:
(a) eighteen
(18) months of Executive’s Annual Base Salary as in effect immediately prior to
the Termination Date, plus
(b) an
amount equal to one hundred fifty percent (150%) of the product of (i)
Executive’s Bonus Potential for the year in which the Termination Date occurs
(the “Termination Year”), multiplied by (ii) the average percentage of the Bonus
Potential earned by the Executive for the three (3) full years immediately
preceding the Termination Year, (or such shorter period if Executive was
employed by the Company for less than three (3) full years and received, or was
eligible to receive, a bonus during such period), which product shall be
prorated for the portion of the Termination Year in which Executive was employed
by the Company; provided, however, that such product shall not be prorated if
the Termination Date occurs within one year following a Change in Control Date
(as defined in the Incentive Plan). Notwithstanding anything to the
contrary herein, neither the three-year average percentage of Bonus Potential
described in (ii) above, nor the percentage of Bonus Potential for any single
year used to compute such three-year average, may exceed 100%; provided,
however, that there shall be no such 100% maximum for the three year average, or
for any single year, if the Termination Date occurs within one year following a
Change in Control Date.
1.23 “Tax Reimbursement
Payment” means the payment described in Section 6.12(c)
hereof.
1.24 “Termination Date”
means the effective date of termination of Executive’s employment as determined
in accordance with Section 4.5 hereof.
1.25 “Welfare Benefit” has
the meaning set forth in Section 4.2.
ARTICLE
II
ARTICLE
III
ARTICLE
IV
(a) The
Annual Base Salary through the Termination Date;
(b) Reimbursement
for any unreimbursed business expenses properly incurred by Executive in
accordance with Company policy prior to the Termination Date; and
(c) Such
employee benefits, if any, to which Executive may be entitled under the employee
benefit plans of the Company, including rights with respect to any restricted
stock, stock option and other equity awards or any deferred compensation,
subject to the terms and conditions of the applicable plan, award, agreement or
notice, if relevant (the amounts described in clauses (a) through (c) hereof
being referred to as the “Accrued Rights”).
Following
such termination of Executive’s employment hereunder pursuant to this Section
4.1, Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
(a) If
the Employment Period and Executive’s employment under this Agreement is
terminated by the Company prior to the scheduled expiration of the Employment
Period other than for Cause or Disability, or Executive terminates his or her
employment prior to the end of the Employment Period for Good Reason, Executive
shall be entitled to receive:
(i) The
Accrued Rights;
(ii) Any
Annual Bonus earned for a previously completed fiscal year but unpaid as of the
Termination Date, which Annual Bonus shall be payable to the extent the
corporate bonus pool is approved by the Committee;
(iii) A
Severance Benefit pursuant to the terms and conditions set forth in Section
4.2(b) below; and
(iv) The
Company will reimburse the Executive for Executive’s cost of continuing medical
insurance under COBRA, or, following the expiration of the COBRA period,
equivalent medical insurance coverage, for Executive, Executive’s spouse and any
eligible dependents of Executive until the earlier of (A) eighteen (18) months
after the Termination Date, or (B) such time as Executive becomes eligible for
group insurance from another employer (the “Welfare Benefit”).
(b) The
Company shall pay the Severance Benefit, without interest thereon, in eighteen
(18) substantially equal monthly installments, which installments shall be
payable on the first day of each month, with the first installment payable in
the first full month commencing fifteen (15) days after the Termination
Date. Notwithstanding the foregoing, in the event that Executive is
determined to be a specified employee in accordance with Section 409A of the
Code and the regulations and other guidance issued thereunder for purposes of
the Severance Benefit, the Severance Benefit shall begin on the first payroll
date which is more than six months following the date of his or her separation
from service; provided, that this sentence shall apply only to the extent
required to avoid Executive's incurrence of any additional tax or interest under
Section 409A of the Code or any regulations or Treasury guidance promulgated
thereunder. Payment of the Severance Benefit is subject to deductions
for customary withholdings, including, without limitation, federal, state and
local withholding taxes, social security taxes and Medicare taxes. Executive
shall not be under any duty to mitigate damages in order to be eligible to
receive the Severance Benefit.
(c) Notwithstanding
the foregoing, Executive agrees that payment of the Severance Benefit is
contingent upon the following:
(i) In
the event of breach by Executive of Sections 5.1 through 5.3 hereof (or any
breach of any agreements in the release described in Section 4.2(c)(ii) below,
or in the Nondisclosure and Noncompetition Agreement), Executive shall reimburse
the Company for all compensation or other amounts previously paid, allocated,
accrued, delivered or provided by the Company to Executive pursuant to Section
4.2 (a)(ii) hereof and the Company shall be entitled to discontinue the future
payment, delivery, allocation, accrual or provision of the Severance Benefit,
the Welfare Benefit, and such other compensation, including any deferred or
equity compensation, as reflected in the terms of any plan, notice or agreement
evidencing such other compensation, except to the extent prohibited by
applicable law.
(ii) No
later than thirty (30) days after the Termination Date, Executive must execute
and deliver a general release releasing all claims against the Company (other
than those specifically described in the below proviso) in such form and
containing such terms as the Company may reasonably prescribe; provided, however, that it
shall not be a condition to the Executive’s receipt of the Severance Benefit
that the Executive release the Company from any of the following:
(A) the
obligations of the Company described in Article IV of the Agreement;
or
(B) any
vested rights that the Executive may have with respect to any benefits, rights
or entitlements under the terms of any employee benefit programs of the Company
to which the Executive is or will be entitled by virtue of his or her employment
with the Company or any of its subsidiaries, and nothing in the release will
prohibit or be deemed to restrict the Executive from enforcing his or her rights
to any such benefits, rights or entitlements; or
(C) the
Executive’s right to indemnification to the extent provided in the Company’s
Certificate of Incorporation and/or bylaws.
Following
such termination of Executive’s employment hereunder pursuant to this Section
4.2, Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
(a) In
the event either party elects not to extend the Employment Period pursuant to
Section 2.2, unless Executive’s employment is earlier terminated pursuant to
Sections 4.1 through 4.3, Executive’s term of employment hereunder (whether or
not Executive continues as an employee of the Company thereafter) shall be
deemed to close on the close of business on the day immediately preceding the
next scheduled Anniversary Date and Executive shall be entitled to receive the
Accrued Rights, plus any Annual Bonus earned for a previously completed fiscal
year (including a fiscal year which ends on the on the Termination
Date) but unpaid as of the Termination Date, which Annual Bonus shall be payable
to the extent the corporate bonus pool is approved by the
Committee.
(b) Unless
the parties otherwise agree in writing executed subsequent to the Effective
Date, continuation of Executive’s employment with the Company beyond the
expiration of the Employment Period shall be deemed an employment at-will and,
subject only to Section 6.1, shall not be deemed to extend any of the provisions
of this Agreement and Executive’s employment may thereafter be terminated at
will by either Executive or the Company.
Following
such termination of Executive’s employment hereunder pursuant to this Section
4.4, Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
ARTICLE
V
For the
purposes of this Article V, all references to the Company shall include the
Company and its affiliates.
(a) Executive
acknowledges and recognizes the highly competitive nature of the businesses of
the Company and its affiliates and accordingly agrees as follows:
(i) During
the period of Executive’s employment with the Company and, for a period of two
(2) years after termination of Executive’s employment (the
“Nonsolicit Period”), Executive will not, whether on Executive’s own behalf or
on behalf of or in conjunction with any person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise whatsoever (“Person”), directly or indirectly solicit or assist in
soliciting in competition with the Company, the business of any client or
prospective client:
(1) with
whom Executive had personal contact or dealings on behalf of the Company during
the one (1) year period preceding Executive’s termination of
employment;
(2) with
whom employees reporting to Executive have had personal contact or dealings on
behalf of the Company during the one (1) year immediately preceding the
Executive’s termination of employment; or
(3) for
whom Executive had direct or indirect responsibility during the one (1) year
immediately preceding Executive’s termination of employment.
(ii) During
the Nonsolicit Period, Executive will not, whether on Executive’s own behalf or
on behalf of or in conjunction with any Person, directly or
indirectly:
(1) solicit
or encourage any employee of the Company or its affiliates to leave the
employment of the Company or its affiliates; or
(2) hire
any such employee who was employed by the Company or its affiliates as of the
date of Executive’s termination of employment with the Company or who left the
employment of the Company or its affiliates coincident with, or within one year
prior to or after, the termination of Executive’s employment with the
Company.
(iii) During
the Nonsolicit Period, Executive will not, directly or indirectly, solicit, or
encourage to cease to work with the Company or its affiliates, any consultant
then under contract with the Company or its affiliates.
(iv) During
the period of Executive’s employment with the Company and, for a period of (18)
months after termination of Executive’s employment for any reason (the
“Noncompete Period”), Executive will not directly or indirectly:
(1) engage
in any business that is, or will be, engaged wholly or primarily in the business
of manufacturing, purchasing, selling or supplying in the United States any
product or service manufactured, purchased, sold, supplied or provided by the
Company or its affiliates, and which is or will be directly in competition with
the business of the Company or its affiliates (including, without limitation,
businesses which the Company or its affiliates have specific plans to conduct in
the future and as to which Executive is aware of such planning) in the United
States (a “Competitive Business”);
(2) enter
the employ of, or render any services to, any Person (or any division or
controlled or controlling affiliate of any Person) who or which engages in a
Competitive Business;
(3) acquire
a financial interest in, or otherwise become actively involved with, any
Competitive Business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or consultant;
or
(4) interfere
with, or attempt to interfere with, business relationships (whether formed
before, on or after the date of this Agreement) between the Company or any of
its affiliates and customers, clients, suppliers, partners, members or investors
of the Company or its affiliates.
(v) Notwithstanding
anything to the contrary herein, Executive may, directly or indirectly own,
solely as an investment, securities of any Person engaged in the business of the
Company or its affiliates which are publicly traded on a national or regional
stock exchange or on the over-the-counter market if Executive (i) is not a
controlling person of, or a member of a group which controls, such Person and
(ii) does not, directly or indirectly, own 5% or more of any class of
securities of such Person.
(a) Executive
acknowledges that the identity of the clients and customers of the Company, the
prices, terms and conditions at, or upon which, the Company sells its products
or provides its services and other non-public, proprietary or confidential
information relating to the business, financial and other affairs of the Company
(including, without limitation, any idea, product, trade secret, know-how,
research and development, software, databases, inventions, processes, formulae,
technology, designs and other intellectual property; creative or conceptual
business or marketing plan, strategy or other material developed for the Company
by Executive; or information concerning finances, investments, profits, pricing,
costs, products, services, vendors, customers, clients, partners, investors,
personnel, compensation, recruiting, training, advertising, sales, marketing,
promotions, government and regulatory activities and approvals -- concerning the
past, current or future business, activities and operations of the Company or
its affiliates and/or any third party that has disclosed or provided any of same
to the Company on a confidential basis) (hereinafter collectively referred to as
“Confidential Information”) are valuable, special unique assets of the Company
and that such Confidential Information, if disclosed to others, may result in
loss of business or other irreparable and consequential damage to the
Company.
(b) Executive
shall hold in fiduciary capacity, for the benefit of the Company, all
Confidential Information and shall not, at any time during the Employment Period
or thereafter (i) retain or use for the benefit, purposes or account of
Executive of any other Person, or (ii) disclose, divulge, reveal, communicate,
share, transfer or provide access to any Person outside the Company (other than
its professional advisers who are bound by confidentiality obligations), any
Confidential Information, without the prior written authorization of the
Company.
(c) Notwithstanding
the foregoing, the term Confidential Information shall not include information
(i) generally known to the public or the trade other than as a result of
Executive’s breach of this covenant or any breach of other confidentiality
obligations by third parties, (ii) made legitimately available to Executive by a
third party without breach of any confidentiality obligation, (iii) the release
of which is deemed by the Board to be in the best interest of the Company, or
(iv) the disclosure of which is required by applicable law; provided that
Executive shall give prompt written notice to the Company of such legal
requirement, disclose no more information than is so required, and cooperate
with any attempts by the Company to obtain a protective order or similar
treatment.
(d) Notwithstanding
anything herein to the contrary, any party to this Agreement (and any employee,
representative, or other agent of any party to this Agreement) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure. However, any such
information relating to the tax treatment or tax structure is required to be
kept confidential to the extent necessary to comply with any applicable federal
or state securities laws.
(e) Upon
termination of Executive’s employment with the Company for any reason, Executive
shall (i) cease and not thereafter commence use of any Confidential Information
or intellectual property (including without limitation, any patent, invention,
copyright, trade secret, trademark, trade name, logo, domain name or other
source indicator) owned or used by the Company or its affiliates, (ii)
immediately destroy, delete, or return to the Company, at the Company’s option,
all originals and copies in any form or medium (including memoranda, books,
papers, plans, computer files, letters and other data) in Executive’s possession
or control (including any of the foregoing stored or located in Executive’s
office, home, laptop or other computer, whether or not Company property) that
contain Confidential Information or otherwise relate to the business of the
Company or its affiliates, except that Executive may retain only those portions
of any personal notes, notebooks and diaries that do not contain any
Confidential Information, and (iii) notify and fully cooperate with the Company
regarding the delivery or destruction of any other Confidential Information of
which Executive is or becomes aware.
ARTICLE
VI
To the
Company:
Express
Scripts, Inc.
Xxx
Xxxxxxx Xxx
Xxxxx
Xxxxx, XX 00000
Attention:
Chief Executive Officer
To
Executive:
Xxxxxxx
X. Xxxx
0000
Xxxxxxxx Xxxxx
Xxx Xxxx,
XX 00000
or such
other address or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending party.
6.9 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without regard to conflicts
of laws principles thereof; provided, however, that issues
related to the Incentive Plan or any grants thereunder shall be resolved in
accordance with the laws of the State of Delaware.
(a) Notwithstanding
anything to the contrary herein (or any other agreement entered into by and
between Executive and the Company or any incentive arrangement or plan offered
by the Company), in the event that any amount or benefit paid or distributed to
Executive pursuant to this Agreement, taken together with any amounts or
benefits otherwise paid or distributed to Executive by the Company or any of its
subsidiaries (collectively, the “Covered Payments”), would constitute an “excess
parachute payment” as defined in Section 280G of the Code, and would thereby
subject Executive to an Excise Tax, the provisions of this Section 6.12 shall
apply.
(b) If
the aggregate present value (as determined for purposes of Section 280G of the
Code) of the Covered Payments exceeds the amount which can be paid to Executive
without Executive incurring an Excise Tax, but is less than 125% of such amount,
then the amounts payable to Executive under this Agreement (or any other
agreement by and between Executive and the Company or pursuant to any incentive
arrangement or plan offered by the Company) may, in the discretion of the
Company, be reduced (but not below zero) to the maximum amount which may be paid
hereunder without Executive becoming subject to the Excise Tax (such reduced
payments to be referred to as the “Payment Cap”). In the event Executive
receives reduced payments and benefits as a result of application of this
Section 6.12, Executive shall have the right to designate which of the payments
and benefits otherwise set forth herein (or any other agreement between
Executive and the Company or any incentive arrangement or plan offered by the
Company) will be received in connection with the application of the Payment Cap,
subject to the following sentence. Reduction shall first be made from
payments and benefits which are determined not to be nonqualified deferred
compensation for purposes of Section 409A of the Code, and then shall be made
(to the extent necessary) out of payments and benefits which are subject to
Section 409A of the Code and which are due at the latest future
date.
(c) If
the aggregate present value of all Covered Payments is equal to or exceeds 125%
of the amount which can be paid to Executive without Executive incurring an
Excise Tax, Executive shall be entitled to receive an additional amount (the
“Tax Reimbursement Payment”) such that the net amount retained by Executive with
respect to such Covered Payments, after deduction of any Excise Tax on the
Covered Payments and any federal, state and local income tax and Excise Tax on
the Tax Reimbursement Payment provided for by this Section 6.12, but before
deduction for any federal, state or local income or employment tax withholding
on such Covered Payments, shall be equal to the amount of the Covered
Payments. Such additional amount may be paid by the Company directly
to the applicable taxing authority. The Tax Reimbursement Payment
shall be paid in the calendar year following the date of the Change in
Control.
(d) Immediately
upon a Change in Control, the Company shall notify Executive of any modification
or reduction as a result of the application of this Section 6.12. In the event
Executive and the Company disagree as to the application of this Section 6.12,
the Company shall select a law firm or accounting firm from among those
regularly consulted (during the twelve-month period immediately prior to the
Change in Control that resulted in the characterization of the Covered Payments
as parachute payments) by the Company, and such law firm or accounting firm
shall determine, at the Company’s expense, the amount to which Executive shall
be entitled hereunder (and pursuant to any other agreements, incentive
arrangements or plans), taking into consideration the application of this
Section 6.12, and such determination shall be final and binding upon Executive
and the Company.
* * * *
*
IN
WITNESS WHEREOF, the parties hereto have executed this Executive Employment
Agreement as of the date first above written.
THIS
CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE
PARTIES.
| EXPRESS SCRIPTS, INC. | |||
| By: | /s/ Xxxxxx Xxx | ||
| Name: Xxxxxx Xxx | |||
|
Title:
Chairman, President and Chief Executive
Officer
|
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| EXECUTIVE | |||
| /s/ Xxxxxxx X. Xxxx | |||
| Name: Xxxxxxx X. Xxxx | |||