EXHIBIT A FIRST AMENDMENT TO THE MARK THIERER EMPLOYMENT AGREEMENT
Exhibit 10.15
EXHIBIT A
FIRST AMENDMENT TO THE
XXXX XXXXXXX EMPLOYMENT AGREEMENT
XXXX XXXXXXX EMPLOYMENT AGREEMENT
WHEREAS, Xxxx Xxxxxxx (the “Executive”) and SXC Health Solutions Corporation and its
subsidiary, SXC Health Solution, Inc. (collectively, the “Company”) executed an employment
agreement (“Agreement”) effective as of June 30, 2008;
WHEREAS, the Board of Directors of the Company (the “Board”), through its Compensation
Committee (the “Committee”), has determined that the Agreement should be amended to fully
satisfy the requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”);
WHEREAS, the Committee and Executive desire to amend the Agreement to fully satisfy the
requirements of Section 409A; and
WHEREAS, the Committee and Executive desire to execute such amendment on or before December 31,
2008 to comply with the effective date of the final Treasury regulations under Section 409A.
NOW, THEREFORE, BE IT RESOLVED, in accordance with the foregoing recitals, the Agreement is
amended as follows:
| 1. | Subsection 5.2(a)(ii) of the Agreement shall be amended by adding the following parenthetical at the end thereof: |
“(payable at the same time other members of the Senior Executive Team are paid their
respective incentive compensation bonuses which shall be in no event later than March 15 following
the close of the Company’s fiscal year).”
| 2. | Subsection 5.2(c) of the Agreement shall be deleted in its entirety and replaced with the following: |
“(c) Termination by Company Without Cause/Resignation for Good Reason. If the
Triggering Event was a Termination by the Company Without Cause (that is not a Termination Arising
Out of a Change of Control) or a Resignation for Good Reason, then Executive shall be entitled to
receive (i) Executive’s Annual Base Compensation and accrued but unpaid vacation through the date
thereof; (ii) payment of Executive’s Target Incentive Compensation Bonus for the year in which the
termination occurred, if any, pro rated to Executive’s date of termination (payable at the same
time other members of the Senior Executive Team are paid their respective incentive compensation
bonuses which shall be in no event later than March 15 following the close of the Company’s fiscal
year); and (iii) the Severance Benefit. For purposes of this Subsection 5.2(c), any payment or
benefit that the Executive receives shall be treated as a “separate payment” for the application of
Section 409A of the Internal Revenue Code (“Code”). If the Executive receives any payment or
benefit due to his Termination by the Company Without Cause or Resignation for Good Reason, Company
will determine if the involuntary separation
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from service exception of Treasury regulation §1.409A-1(b)(9)(iii) applies, and, if it does
apply, Executive shall receive that portion of the Severance Benefit which satisfies the
involuntary separation from service exception within thirty (30) days of Executive signing a
Separation Agreement and General Release similar to that attached hereto as Exhibit A. If the
Compensation Committee determines that the Executive is a Specified Employee then his Severance
Benefit due under this paragraph (c) shall be made no earlier than the six (6) month anniversary of
the Triggering Event or upon the death of the Executive if earlier, pursuant to Section 409A of the
Code with regard to that portion of the Severance Benefit that does not satisfy the involuntary
separation from service exception to Treasury regulation §1.409A-1(b)(9)(iii). Executive’s
entitlement to the benefits provided in subsections 5.2(c)(ii) and (iii) are contingent on
Executive signing a Separation Agreement and General Release provided by the Company.”
| 3. | Subsection 5.2(d) of the Agreement shall be deleted in its entirety and replaced with the following: |
“(d) Termination Arising Out of a Change of Control. If the Triggering Event was a
Termination Arising Out of a Change of Control, then Executive shall be entitled to receive (i)
Executive’s Annual Base Compensation and accrued but unpaid vacation through the date thereof; (ii)
payment of Executive’s Target Incentive Compensation Bonus for the year in which the termination
occurred, if any, pro rated to Executive’s date of termination (payable at the same time other
members of the Senior Executive Team are paid their respective incentive compensation bonuses which
shall be in no event later than March 15 following the close of the Company’s fiscal year); and
(iii) the Change of Control Severance Benefit. Executive’s entitlement to the benefits provided in
subsections 5.2(d) (ii) and (iii) is contingent on Executive signing a Separation Agreement and
General Release provided by the Company within a reasonable period of time following the date the
Separation Agreement and General Release is provided to Executive. The Change of Control Severance
Benefit shall be paid within thirty (30) days from the date the executed Separation Agreement and
General Release is received by the Company. Notwithstanding the foregoing to the contrary, if the
Compensation Committee determines that the Executive is a Specified Employee then his Change of
Control Severance Benefit due under this paragraph (d) shall be made no earlier than the six (6)
month anniversary of the Triggering Event or upon the death of the Executive, if earlier, pursuant
to Section 409A of the Code.
| 4. | Subsection 5.4(h) of the Agreement shall be amended to read as follows: |
“
‘Total Disability’ means the Executive (a) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period of not less than 12
months, or (b) is by reason of any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a continuous period of not less than
12 months, receiving income replacement benefits for a period of not less than three months under
an accident and health plan which covers the Executive. Subject to the provisions of Section 409A
and the Treasury regulations issued thereunder, any determination of whether the Executive
satisfies the definition of ‘Total Disability’ shall be made by the Compensation Committee, based
upon medical evidence from a physician selected by the Compensation Committee. Any determination of
whether the Executive satisfies the definition of ‘Total Disability’ for purposes of this Agreement
shall not be construed as a determination for any other purpose.
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| 5. | Subsection 6.10(a) of the Agreement shall be amended by deleting the following sentence: |
“In particular, to the extent Executive becomes entitled to receive a payment or a benefit
upon an event that does not constitute a permitted distribution event under Code section
409A(a)(2), then notwithstanding anything to the contrary in this Agreement, such payment or
benefit will be made or provided to Executive on the earlier of (i) the date which is 6 months
after the effective date of Executive’s separation from service with Company, or (ii) the date of
Executive’s death.”
| 6. | Subsection 6.10(c) of the Agreement shall be amended by adding the full sentence at the end of such paragraph: |
“Notwithstanding anything in this subsection to the contrary, the Gross-Up Payment shall be
made by the Company no later than the end of the Executive’s taxable year that immediately follows
the taxable year in which such Executive remits his Excise Tax.”
IN WITNESS WHEREOF, the Chairman of the Committee and Executive hereby adopt this First Amendment
to the Agreement, which Amendment is effective as of June 30, 2008.
COMPANY:
SXC HEALTH SOLUTIONS CORPORATION
and SXC HEALTH SOLUTIONS, INC.
and SXC HEALTH SOLUTIONS, INC.
By:
|
/s/ Xxxxxxxx X. Xxxxx | 12/23/2008 | ||||
| Date | ||||||
| of the Company’s Board of Directors | ||||||
| EXECUTIVE: | ||||||
By:
|
/s/ Xxxx Xxxxxxx | 12/23/2008 | ||||
| Xxxx Xxxxxxx | Date | |||||
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