EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is effective as of June 17,
1996 (the "Effective Date"), by and between Advance ParadigM, Inc. (the
"Company") and Xxxxxx Buys (the "Employee").
WHEREAS, the Company and Employee desire to enter into this Agreement
pursuant to which the Company will employ Employee in the capacity, for the
period and on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises 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 Chief Operating
Officer of Advance ParadigM Data Services, Inc., the Company's wholly owned
subsidiary, and, effective December 1, 1996, as Chief Information Officer of
the Company, to act in accordance with the terms and conditions hereinafter
set forth. During the term of this Agreement, Employee agrees that this
position will be his full-time employment, except as set forth in the
Noninterference Agreement dated as of June 17, 1994, by and between the
parties hereto (the "Noninterference Agreement"), and that he will devote his
reasonable best efforts and all of his business time, attention and skills to
the successful continuation of the business heretofore conducted by the
Company and that he will perform such duties, functions, responsibilities and
authority, as are commensurate with the position of Chief Operating Officer,
in connection with the foregoing as are from time to time delegated to
Employee by the Board of Directors of the Company.
2. TERM. The employment of Employee shall commence on the Effective
Date and shall end on the third anniversary thereof (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 One
Hundred Fifty Thousand Dollars ($150,000), with such increases therein as may
be determined by the Board from time to time in its sole discretion ("Base
Salary"), to be paid in biweekly installments in accordance with the
Company's salary payment practices in effect from time to time for senior
managers of the Company.
(b) BENEFIT PLANS. Employee shall be entitled to participate in any
health, accident, disability and life insurance programs, and any other fringe
benefit program (includinga 401(k) savings plan), which the Company may adopt
and implement for the benefit of the Company's employees.
(c) FRINGE BENEFITS. The Company shall provide Employee with the
fringe benefits listed on Exhibit "A" attached hereto.
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(d) EXPENSES. Employee shall be entitled to receive reimbursement
for all reasonable expenses incurred by him in connection with the fulfillment
of his 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) VACATION AND SICK LEAVE. During the Term of employment,
Employee shall be permitted to take vacations with such frequency and of such
duration as are consistent with the executive vacation 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. Employee shall also be entitled to
sick leave according to the sick leave policy which the Company may adopt
from time to time.
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 30th day after receipt of such notice by the Employee (the
"Disability Effective Date"), provided that, within the 30 days after such
receipt, the Employee shall not have returned to full-time performance of the
Employee's duties. For purposes of this Agreement, "Disability" means
disability which, at least 26 weeks after its commencement, is determined to
be total and permanent 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).
(b) CAUSE. The Company may terminate the Employee's employment
for "Cause." For purposes of this Agreement, "Cause" means:
(i) an act or acts of personal dishonesty taken by the Employee
at the expense of the Company,
(ii) a material violation or repeated violations by the Employee
of the Employee's obligations under Section 1 of this Agreement which are
demonstrably willful or deliberate on the Employee's part, or
(iii) the conviction of the Employee of a felony or
misdemeanor that adversely affects the Company's business, reputation or
standing in the community.
(c) NOTICE OF TERMINATION. Any termination by the Company for
Cause shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 9 of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice which
(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
(which date shall be not more than fifteen (15) days after the giving of
such notice).
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(d) 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
(i) the Employee's full Base Salary through the Date of
Termination at the rate in effect on the Date of Termination or, if higher,
at the highest rate in effect at any time from the 90-day period preceding
the Effective Date through the Date of Termination (the "Highest Base
Salary"), and
(ii) the product of any bonus or incentive plan paid to the
Employee for the last full fiscal year and a fraction, the numerator of
which is the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365, and
(iii) any compensation previously deferred by the Employee
(together with any accrued interest thereon) and not yet paid by the
Company and any accrued 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. anything in this Agreement to the contrary
notwithstanding, the Employee's family shall be entitled to receive benefits
at least equal to the most favorable benefits provided by the Company to
surviving families of employees of the Company under such plans, programs,
practices and policies relating to family death benefits, if any, in effect
at the time of Employee's death.
(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. Anything in this Agreement to the
contrary notwithstanding, the Employee shall be entitled after the Disability
Effective Date to receive disability and other benefits at least equal to the
most favorable of those 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 accordance with the most
favorable plans, programs, practices and policies of the Company in effect at
any time during the 90-day period immediately preceding the Effective Date
or, if more favorable to the employee and the Employee's family, as in effect
at any time thereafter with respect to other key employees of the Company and
their families.
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(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 Highest Base Salary through the
Date of Termination plus the amount of any compensation previously deferred
by the Employee (together with accrued interest thereon).
(D) OTHER THAN FOR CAUSE OR DISABILITY. If, during the Term, the
Company shall terminate the Employee's employment other than for Cause,
Disability, or death, the Company shall continue in accordance with the
Company's normal payroll procedures to pay Employee his Highest Base Salary
for a period of six (6) months from the Date of Termination or for the
remaining term of this Agreement, whichever period is shorter (the "Severance
Period"). In addition, upon such termination Employee shall receive (a) an
amount that equals the product of (i) the bonus paid to Employee for the last
fiscal year and (ii) a fraction, the numerator of which is the number of days
in the current fiscal year through the Date of Termination and the
denominator of which is 365; (b) any compensation previously deferred by
Employee (together with any accrued interest thereon) and not yet paid by the
Company; and (c) any accrued vacation pay not yet paid by the Company. Any
amounts payable to Employee under this Section 5(d) shall be reduced and
offset by the amount of any compensation received by Employee for other
employment during the Severance Period. During the Severance Period, Employee
shall use his best efforts to find employment consistent with the covenants
of Employee in the Noninterference Agreement and Sections 7 and 8 hereof.
During the Severance Period, or such longer period as any plan, program,
practice or policy may provide, the Company shall continue benefits to the
Employee and the Employee's family at least equal to those which would have
been provided to them in accordance with the plans, programs, practices and
policies described in Section 3(c) of this Agreement if the Employee's
employment had not been terminated or provide continuation coverage as set
forth under Part 6 of Title I of the Employee Retirement Income Security Act
of 1974, as amended, at the option of the Board of Directors of the Company.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Employee's continuing or future participation in any benefit,
bonus, incentive or other plans, programs, policies or practices, provided by
the Company and for which the Employee may qualify. Amounts which are vested
benefits or which the Employee is otherwise entitled to receive under any
plan, policy, practice or program of the Company at or subsequent to the Date
of Termination shall be payable in accordance with such plan, policy,
practice or program.
7. NONINTERFERENCE AGREEMENT. The terms and conditions of the
Noninterference Agreement entered into of even date herewith should be
incorporated herein and made part hereof by this reference. Employee and the
Company agree that the Company would suffer irreparable harm and incur
substantial damage if Employee were to breach the Noninterference Agreement.
8. CONFIDENTIALITY. For purposes of this Agreement, "Confidential
Information and Trade Secrets" shall mean all information, ideas, know how,
trade secrets, processes, computer code generated or developed, software or
programs and related documentation, methods, practices, fabricated
techniques, technical plans, customer lists, pricing techniques, marketing
plans, financial information and all other compilations of information which
relate to the Business of, and are owned by, the Company, which were not
known generally to others engaged in the Business of the Company and which
the Company has taken affirmative actions to protect from public disclosure
or which do not exist in the public domain. Employee acknowledges that,
during his term of employment with the Company, he shall have access to and
become familiar with Confidential Information and Trade Secrets that are
owned by the Company. Employee shall not use, in any way, or disclose any of
the Confidential Information and Trade Secrets, directly or indirectly,
either during the term of his employment or at anytime thereafter, except as
required in the course of his employment. All computer code, programs,
files, records, documents, information, data and similar items and
documentation relating to the Business of the Company, whether prepared by
Employee or otherwise, coming into Employee's possession, shall
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remain the exclusive property of the Company unless owned by Employee. The
obligations of this Section 8 are continuous and shall survive the
termination of Employee's employment with the Company.
9. 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 whendispatched by telegram or electronic facsimile
transfer (confirmed in writing by mail, registered or certified, return
receipt requested, postage prepaid, simultaneously dispatched) to the
addressees at the addresses specified below.
IF TO EMPLOYEE: Xx. Xxxxxx Buys
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
IF TO THE COMPANY: 000 X. Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxx
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.
10. ENTIRE AGREEMENT. Subject to Section 7 hereof, 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.
11. 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.
12. 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. Subject to the prior
written consent of Employee, 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.
13. SEVERABILITY. The parties hereto further agree that if at any time
it shall be determined that the restrictions contained in Section 7 or 8 are
unreasonable as to time or area, or both, by any court of competent
jurisdiction, the Company shall be entitled to enforce this Agreement for
such period of time and within such area as may be determined to be
reasonable by such court and the court shall have the authority to construe
reform and enforce the terms of this Agreement for the benefit of the Company
to the maximum extent possible. 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.
14. SURVIVAL. No termination of Employee's employment by any of the
parties hereto shall reduce or terminate Employee's covenants and agreements
in the Noninterference Agreement and Section 7 and 8 hereof.
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15. REMEDIES. Employee and the Company recognize that the services to
be rendered under this Agreement by Employee are special, unique, and of
extraordinary character, and that in the event of the breach by Employee of
the terms and conditions of the Noninterference Agreement and Sections 7 and
8 hereof, the Company shall be entitled, if it so elects, to institute and
prosecute proceedings in any court of competent jurisdiction, either in law
or in equity, to obtain damages for any breach thereof or to enforce the
specific performance thereof by Employee.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ADVANCE PARADIGM, INC.
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Xxx X. Xxxxxxx
Executive Vice President
EMPLOYEE
/s/ Xxxxxx Buys
------------------------------------
Xxxxxx Buys
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EXHIBIT "A"
FRINGE BENEFITS
1. INCENTIVE PLAN. The Employee shall be entitled to participate in the
annual executive incentive compensation plan. Subject to the discretion of
the Board of Directors of the Company or APS, the potential payout to the
Employee, if any, will be a subjective amount payable annually
2. CAR ALLOWANCE. Employee shall be provided a $500 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.
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