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EXHIBIT 10-T
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 Xxxxx X. Xxxxxxxx ("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").
2. Position and Responsibilities. The Company hereby employs
Employee to serve as Vice President and Treasurer. Employee shall have such
duties, responsibilities and authority as may, from time to time, be assigned
to Employee by more senior officers of the Company.
3. Compensation. As compensation for all services performed and
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 $12,500 (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. Car Allowance. The Company shall pay Employee a
minimum monthly car allowance in the amount of $750.00.
c. Bonus. Upon the execution date of this Agreement, as
additional compensation, Employee shall receive a cash signing bonus,
and a bonus 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 Company and any purchasers thereof, in the amount of
$75,000 (the "BONUS"). Notwithstanding anything herein that may be to
the contrary, the Bonus shall be deemed fully earned and payable upon
the execution of this Agreement.
d. 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
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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 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 Employee's Supervisor or 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
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(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
six (6) 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 twelve (12) 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 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 any material reduction of Employee's duties,
responsibilities and authority shall be deemed to constitute a
Termination Without Cause hereunder.
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. In addition, (I) if
the date of the notice or the effective date of any such termination
is on or before December 31, 1996, then Employee shall immediately pay
$75,000 to the Company, and (II) if the date of the notice or the
effective date of any such termination is after December 31, 1996 but
before October 31, 1997, then Employee shall immediately pay $50,000
to the Company (the amount to be paid, whether $75,000 or $50,000, the
"Payment"). The Company shall have the right to setoff the Payment
against any amounts the Company may otherwise owe to Employee;
provided, however, that to the extent the Payment is greater than any
amount setoff, Employee shall remain obligated to pay the balance of
the Payment to the Company. If
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Employee becomes obligated hereunder to make the Payment to the
Company and fails or refuses to do so, (x) such obligation shall bear
interest at the highest lawful rate (if no highest lawful rate is
established by law, at the rate of eighteen percent (18%) per annum),
and (y) Employee agrees to pay all reasonable attorneys' fees and
other costs incurred by the Company in connection with the collection
of such obligation. Any Payment to the Company, whether by the
payment of cash, the exercise of the setoff right or otherwise, shall
not extinguish any of the Company's other rights or Employee's
obligations hereunder, including but not limited to those set forth in
Sections 5 and 6 of this Agreement.
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
(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,
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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.
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.
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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, 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:
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:
Xxxxx X. Xxxxxxxx
0000 Xxxxxxxx
Xxxxxx, Xxxxx 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.
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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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Xxxxx X. Xxxxxxxx
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