EMPLOYMENT AGREEMENT
EXHIBIT 10.12
This Employment Agreement (“Agreement”) is effective as of the ___ day of October 2007, by and
between Xxxx Xxxx (“Executive”) and SXC Health Solutions, Inc. (collectively, the “Company”).
RECITALS
A. The Company wishes to continue to employ Executive, and Executive wishes to continue
to be employed by the Company, as its Senior Vice President, Finance and Chief Financial
Officer, and
Executive desires to continue employment with the Company under the terms and conditions set
forth in
this Agreement.
B. Executive acknowledges that as a member of the Company’s senior management team,
Executive is one of the persons charged with responsibility for the implementation of the
Company’s
business plans, and that Executive is one of only a few Executives who will have regular
access to
confidential and/or proprietary information relating to the Company. Further, Executive
acknowledges
that Executive’s covenants to the Company hereinafter set forth are being made in partial
consideration of
the Company’s willingness to employ Executive under the terms and conditions set forth in
this
Agreement. As a condition of that employment, the Company requires that this Agreement be
entered into
pursuant to which Executive furnishes the Company with, among other things, certain covenants
of
Executive, including Executive’s covenant not to compete with the businesses of the Company
for a
reasonable period of time.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual agreements
herein contained and other good and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties hereby agree as follows:
ARTICLE I
EMPLOYMENT RELATIONSHIP
EMPLOYMENT RELATIONSHIP
1.1 Employment. Subject to the terms and conditions of this Agreement, the Company
hereby agrees to employ or continue to employ to serve as Senior Vice President, Finance and Chief
Financial Officer, and Executive hereby accepts such employment, and agrees to perform his duties
and responsibilities to the best of Executive’s abilities in a diligent, trustworthy, businesslike
and efficient manner.
1.2 Duties. The Executive shall be the Company’s Senior Vice President, Finance and
Chief Financial Officer and shall participate as a member of the Company’s Senior Executive Team.
In addition, Executive shall be responsible for, among other things, managing the financial growth
and development of the company, driving strategic mergers and acquisitions, managing investor and
analyst relations, directing and overseeing the Company’s internal finance and accounting
activities, and such other duties as may be reasonable requested by the Company, and such other
duties as may be reasonably requested by the Company. Executive shall report to the Company’s
CEO. Executive shall perform his duties under this Agreement at the Company’s facilities in Lisle,
Illinois or any subsequent location of the Company’s primary administrative operations.
1.3 Exclusive Employment. While employed by the Company hereunder, Executive covenants
to the Company that he/she will devote his/her entire business time, energy, attention and skill to
the Company (except for permitted vacation periods and reasonable periods of illness or other
incapacity), and use his/her good faith best efforts to promote the interests of the Company. The
foregoing shall not be construed as prohibiting Executive from spending such time as may be
reasonably necessary to attend to Executive’s personal affairs and investments so long as such
activities do not conflict or interfere with Executive’s obligations and/or timely performance of
his/her duties to the Company.
1.4 Executive Representations and Warranties as to Employability.
Executive hereby represents and warrants to the Company that:
(a) The execution, delivery and performance by Executive of this Agreement and any
other agreements contemplated hereby to which Executive is a party do not and shall not
conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Executive is a party or by which he/she is
bound;
(b) Executive is not a party to or bound by any employment agreement, non-competition
agreement or confidentiality agreement with any other person or entity (or if a party to
such an agreement, Executive has disclosed the material terms thereof to the Board prior to
the execution hereof and promptly after the date hereof shall deliver a copy of such
agreement to the Board);1
(c) The Company has not requested, directly or indirectly, expressly or implicitly,
that Executive use or disclose the trade secrets or other confidential information of any
prior employer or other third party, and Executive warrants that he will not use or
disclose such information;
(d) Upon the execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of Executive, enforceable in accordance with its
terms; and
(e) Executive hereby acknowledges and represents that he/she has been given the
opportunity to consult with independent legal counsel regarding Executive’s rights and
obligations under this Agreement and that he/she fully understands the terms and conditions
contained herein.
ARTICLE II
PERIOD OF EMPLOYMENT
PERIOD OF EMPLOYMENT
2.1 Employment Period. Executive’s employment hereunder shall commence on the date
this Agreement is executed, and shall continue hereunder until the date fixed by the provisions of
Section 2.2 hereof, subject to the early termination provisions of Article V hereof (the
“Employment Period”).
2.2 Initial Term of Employment Period and Extension Terms. The Employment Period shall
initially continue for a term commencing on the date this Agreement is executed, above, and ending
on December 31, 2008 (the “Initial Term”). The Employment Period shall be automatically extended
for successive one (1) calendar year periods following the expiration of the Initial Term (each
period being hereinafter referred to as an “Extension Term”) upon the same terms and conditions
provided for herein unless either party provides the other party with advance written notice of its
or Executive’s intention not to extend the Employment Period; provided, however, that such notice
must be delivered by the non-extending party to the other party not later than sixty (60) days
prior to the expiration of the Initial
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Term or any Extension Term, as the case may be. If the Employment Period is not extended as a
result of notice to Executive by the Company, and Executive’s employment with the Company
terminates as a result thereof, then Executive’s termination shall be a treated as a Termination
by the Company Without Cause.
ARTICLE III
COMPENSATION
COMPENSATION
3.1 Annual Base Compensation. During the Employment Period the Company shall pay to
Executive, at minimum, an annual base salary (the “Annual Base Compensation”) in the amount of two
hundred fifty seven thousand and 00/100 dollars ($257,000). The Annual Base Compensation shall be
paid in regular installments in accordance with the Company’s regular payroll practices, and shall
be subject to all required federal, state and local withholding taxes. Executive’s Annual Base
Compensation shall be reviewed annually by the Company’s Chairman and CEO and the SXC Compensation
Committee.
3.2 Executive Incentive Compensation Bonus. In respect of each calendar year falling
within the Employment Period, Executive shall be eligible to earn an incentive compensation bonus,
depending upon the achievement of the Company’s and Executive’s performance objectives (the
“Incentive Compensation Bonus”). The amount of the Incentive Compensation Bonus shall be targeted
at fifty percent (50%) of the Executive’s Annual Base Compensation, with the specific percentage
determined by the Company’s Board of Directors after the close of the Company’s fiscal year
(December 31). The Incentive Compensation Bonus, if any, shall be paid to Executive at the same
time other members of the Senior Executive Team are paid their respective incentive compensation
bonuses. If the Executive’s employment terminates during the calendar year due to a Change In
Control (5.4.d) or Termination Without Cause (5.4.c), the Executive shall receive a pro rata amount
of the Incentive Compensation Bonus that Executive would have received if Executive remained
employed throughout the calendar year. If the Executive’s employment terminates during the calendar
year for any other reason, then no Incentive Compensation bonus shall be paid for that calendar
year. To the extent practicable, the Company will notify Executive of Executive’s performance
objectives for the year in January of that year.
3.3 Expenses. During the Employment Period, Executive shall be entitled to
reimbursement of all business expenses reasonably incurred in the performance of Executive’s duties
for the Company, including reasonable travel-related expenses, upon submission of all receipts and
accounts with respect thereto, and approval by the Company thereof, in accordance with the then
current business expense reimbursement policies of the Company.
3.4 Vacation. Executive shall be entitled to accrue over the course of the calendar
year twenty (20) days of paid vacation time in accordance with the Company’s then current vacation
policy; provided that unused vacation may be used by Executive in the following calendar year only
in accordance with and as permitted by the Company’s then current vacation policies in effect from
time to time. Nothing in this Agreement shall cause Executive to forfeit any accrued but unused
paid vacation time Executive had prior to entering into this Agreement.
3.5 Insurance. During the Employment Period Executive shall be eligible to
participate in the Company’s insurance programs on terms and conditions no less
favorable than those made available generally to other similarly situated
Executives, as
such programs may be revised from time to time.
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3.6 Retirement Plan. Executive shall be eligible to participate in the Company’s
deferred compensation plans, including its 401(k) plan.
3.7 Grant of Stock Options
a. Executive shall be permitted to participate in the Company’s Stock Option Plan
in the same manner as the Company’s other Senior Vice Presidents, with future
annual
grants based on Executive’s performance as determined by the Company’s Chief
Executive Officer.
b. Except as otherwise provided in Section 5.2(e) of this Agreement, once vested,
the Options shall have a five (5) year life.
c. Upon a Change of Control (defined below), all of the Options shall vest.
d. Upon a Termination without Cause (defined below), all unvested options that
would otherwise vest within the twelve (12) month period commencing on the effective
date of
Executive’s termination, will immediately vest.
3.8 Other Fringe Benefits. During the Employment Period, Executive shall be entitled
to receive such of the Company’s other fringe benefits as are being provided to other Executives of
the Company on the Senior Executive Team.
3.9 Vehicle Allowance. Executive shall receive a monthly payment of Five Hundred and
00/100 dollars ($500.00) for Executive’s use of a personal automobile for business use (“Vehicle
Allowance”). The Vehicle Allowance shall be subject to all required federal, state, and local
withholding.
ARTICLE IV
COVENANTS OF EXECUTIVE
COVENANTS OF EXECUTIVE
4.1 Covenants Regarding Developments. Executive agrees as follows with regard to
any developments that relate to the Company’s business or Confidential and Proprietary Information
(defined below), or that Executive conceives, makes, develops or acquires, including, but not
limited to, any trade secrets, discoveries, inventions, improvements, ideas, programs, formulas,
diagrams, designs, plans and drawings, whether or not reduced to writing, patented, copyrighted or
trademarked (“Developments”):
(a) Executive shall promptly and fully disclose all Developments to the Company, and
shall prepare, maintain, and make available to the Company adequate and current written
records of such Developments and all modifications, research, and studies made or undertaken
by Executive with respect thereto.
(b) All Developments and related records shall become and remain the exclusive property
of the Company and, to the extent Executive has any rights thereto, Executive hereby assigns
all such rights, title, and interest to the Company.
(c) Upon request by the Company, Executive, at any time, whether during or after
Executive’s employment by the Company, shall execute, acknowledge and deliver to the Company
all assignments and other documents which the Company deems necessary or desirable to: (i)
vest the Company with full and exclusive right, title, and interest to such Developments,
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and (ii) enable the Company to file and prosecute an application for, or acquire, maintain
or enforce, all letters of patent, trademark registrations, and copyrights covering such
Developments.
(d) The foregoing provisions regarding assignments do not apply to any
Developments for which no equipment, supplies, facility or trade secret information of the
Company was used, and which were developed entirely on Executive’s own time, unless the
Developments: (i) relate to the Company’s business or to its actual or demonstrably
anticipated research or development, or (ii) result from any work performed by Executive
for the Company.
4.2 Ownership and Covenant to Return Documents, etc. Executive agrees that all
Company
work product and all documents or other tangible materials (whether originals, copies or
abstracts),
including without limitation, price lists, quotation guides, outstanding quotations, books,
records,
manuals, files, sales literature, training materials, customer records, correspondence,
computer disks or
print-out documents, contracts, orders, messages, phone and address lists, invoices and
receipts, and all
objects associated therewith, which in any way relate to the business or affairs of the
Company either
furnished to Executive by the Company or are prepared, compiled or otherwise acquired by
Executive
during the Employment Period, shall be the sole and exclusive property of the Company.
Executive shall
not, except for the use of the Company, use, copy or duplicate any of the aforementioned
documents or
objects, nor remove them from the facilities of the Company, nor use any information
concerning them
except for the benefit of the Company, either during the Employment Period or thereafter.
Executive
agrees that Executive will deliver all of the aforementioned documents and objects that may
be in
Executive’s possession to the Company on the termination of Executive’s employment with the
Company, or at any other time upon the Company’s request.
4.3 Nondisclosure Covenant. Executive recognizes that by virtue of Executive’s
employment
with the Company, Executive will be granted otherwise prohibited access to trade secrets and
other
confidential and proprietary information that is not known to its competitors or within the
industry
generally, that was developed by the Company over a long period of time and/or at substantial
expense,
and which is confidential in nature or otherwise of great competitive value to the Company.
This
information (“Confidential and Proprietary Information”) includes, but is not limited to, the
Company’s trade secrets; information relating to the Company’s production practices and
methods of
doing business; sales, marketing, and service strategies, programs, and procedures; contract
expiration
dates, customers and prospective customers, including, but not limited to, their
particularized
requirements and preferences, and the identity, authority, and responsibilities of their key
contact persons;
payment methods; service and product costs; pricing structures and incentive plans; vendors;
financial
position and business plans; computer programs and databases; research projects; new product
and
service developments; and any other information of the Company or any of its vendors or
customers that
the Company informs Executive, or which Executive should know by virtue of Executive’s
position or
the circumstances in which Executive learned it, is to be kept confidential. Confidential and
Proprietary
Information does not include information that is (i) in the public domain (except as a result
of a breach of
this Agreement or Executive’s obligations under a statutory or common law obligation) or (ii)
obtained by
Executive from a third party subsequent to the termination of Executive’s employment with the
Company
(except where the third party obtains the information in violation of a contractual
obligation, a statutory or
common law obligation). Executive agrees that during the Employment Period and at all times
thereafter
(a) Executive will not disclose, use or permit others to use any Confidential and Proprietary
Information,
or otherwise make use of any of it for Executive’s own purposes or the purposes of another,
except as
required in the course of Executive’s employment for the benefit of the Company or as required
by law,
and (b) Executive will take all reasonable measures, in accordance with the Company’s
policies,
procedures, and instructions, to protect the Confidential and Proprietary Information from any
accidental
or unauthorized disclosure or use.
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4.4 Noninterference Covenant. Executive agrees that during the Employment Period and
for the Restricted Period, Executive will not, for any reason, directly or indirectly solicit,
hire, or otherwise do any act or thing which may induce any other Executive of the Company (who is
employed by the Company at the end of the Executive’s employment with the Company) to leave the
employ of the Company. “Restricted Period” means (i) the Employment Period and (ii) the two (2)
year period following the termination of Executive’s employment.
4.5 Covenant of Nonsolicitation of Customers. Executive acknowledges the Company’s
legitimate interest in protecting its customers for a reasonable period of time following the
termination of Executive’s employment. Accordingly, Executive agrees that during the Restricted
Period, Executive will not: (a) directly or indirectly, solicit or accept business from, or provide
products or services to, any Customer, where such business, products or services would be
competitive with the Company’s business, products or services, or (b) do any act or thing which may
interfere with or adversely affect the relationship (contractual or otherwise) of the Company with
any Customer or vendor of the Company or induce any such Customer or vendor to cease doing business
with the Company. For purposes of this paragraph, the term “Customer” means (i) a customer of the
Company to which Executive sold or provided the Company’s products or services at any time during
the two (2) year period immediately preceding the termination of Executive’s employment, (ii) any
entity for which Executive orchestrated, developed, supervised, coordinated or participated in
marketing strategy, marketing plans and marketing campaigns on behalf of the Company at any time
during the two (2) year period immediately preceding the termination of Executive’s employment, or
(iii) any entity as to which Executive acquired Confidential and Proprietary Information at any
time during Executive’s employment with the Company.
4.6 Covenant Not To Compete. Executive expressly acknowledges that (i) the Company is
and will be engaged in the business of providing healthcare transaction processing services
and
information technology solutions to the pharmaceutical industry, including without limitation:
(x)
pharmacy benefit services and analytics software and related ASP services, including claims
processing,
pharmacy networks, data warehousing and information analysis, rebate contracting and formulary
management, clinical initiatives, and consumer web services; and (y) pharmacy practice
management and
point of sale (POS) systems for retail pharmacy (independents and chains), institutional
/nursing home
pharmacy, and high-volume mail order pharmacy; (ii) Executive is one of a limited number of
persons
who has extensive knowledge and expertise relevant to the business of the Company; (iii)
Executive’s
performance of his services for the Company hereunder will afford him full and complete access
to and
cause him to become highly knowledgeable about the Company’s confidential and Proprietary
Information; (ivO the agreements and covenants contained in the section 4.6 are essential to
protect the
business and goodwill of the Company, because, if Executive enters into any activities
competitive with
the businesses of the Company, he will cause substantial harm to the Company; (v) he will be
exposed the
the company’s largest customers, which Executive acknowledges he would not have been exposed
to but
for his employment with the Company; (vi) the business territory of the Company at the time
this
Agreement was entered into constitutes the Untied States and Canada (Business Territory); and
(vii) his
covenants to the Company set forth in this Section 4.6 are being made in consideration of the
Company’s
willingness to employ him. Accordingly, Executive hereby agrees that during the Restricted
Period, he
shall not directly or indirectly own any interest in, invest in, lend to, borrow from, manage,
control,
participate in, consult with, become employed by, render services to, or in any other manner
whatsoever
engage in, any business which is competitive with ay business actively being engaged in by the
Company
or actively (and demonstrably) being considered by the Company for entry into on the date of
the
termination of Executives employment with the Company, within the Business Territory. The
preceding
to the contrary notwithstanding, Executive shall be free to make investments in the publicly
traded
securities of any corporation, provided that such investments do not amount to more than 1% of
the
outstanding securities of any class of such corporation.
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4.7 Remedies for Breach. Executive recognizes that the rights and privileges
granted to Executive by this Agreement, and Executive’s corresponding covenants to the Company, are
of a special, unique, and extraordinary character, the loss of which cannot reasonably or
adequately be compensated for in damages in any action at law or through the offset or withholding
of any monies to which Executive might be entitled from the Company. Accordingly, Executive
understands and agrees that the Company shall be entitled to equitable relief, including a
temporary restraining order and preliminary and permanent injunctive relief, to prevent or enjoin a
breach of this Agreement. Executive also understands and agrees that any such equitable relief
shall be in addition to, and not in substitution for, any other relief to which the Company may be
entitled.
ARTICLE V
TERMINATION
TERMINATION
5.1 Termination and Triggering Events. Notwithstanding anything to the contrary
elsewhere contained in this Agreement, the Employment Period shall terminate at the expiration of
the Initial Term or any Extension Term upon notice as provided in Section 2.2, or prior to the
expiration of the Initial Term or any Extension Term upon the occurrence of any of the following
events (hereinafter referred to as “Triggering Events”): (a) Executive’s death; (b) Executive’s
Total Disability; (c) Executive’s Resignation; (d) Termination by the Company for Cause; (e)
Termination by the Company Without Cause; or (f) Termination Arising Out of a Change of Control.
5.2 Rights Upon Occurrence of a Triggering Event. Subject to the provisions of Section
5.3 hereof, the rights of the parties upon the occurrence of a Triggering Event prior to the
expiration of the Initial Term or any Extension Term shall be as follows:
(a) Death, Total Disability, Resignation, and Termination by the Company for
Cause. If the Triggering Event was Executive’s Death, Total Disability (defined below),
Resignation, or a Termination by the Company for Cause (defined below), then Executive shall
be entitled to receive Executive’s Annual Base Compensation and accrued but unused vacation
time through the date of the Triggering Event, and to continue to participate in the
Company’s employee welfare plans and programs (including, without limitations, health
insurance plans) through the date of the Triggering Event and, thereafter, only to the
extent permitted under the terms of such plans and programs.
(b) Termination by Company Without Cause. If the Triggering Event was
a Termination by the Company Without Cause, 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 Incentive Compensation Bonus, if any, pro rated to the
Executive’s date of termination; and (iii) the Severance Benefit. “Severance Benefit” means a
payment equal to the Executive’s Annual Base Compensation as of the date of termination,
payable in twenty-four (24) semi-monthly payments, less required tax withholding, commencing
within thirty (30) days from the day Company receives the Separation Agreement and General
Release, executed by Executive. . Executive’s entitlement to the benefits provided in
subsections 5.2(b)(ii) and (iii) are contingent on Executive signing a Separation Agreement
and General Release provided by the Company.
(c) Termination Arising Out of a Change of Control. If the Triggering Event was
a
Termination Arising Out of a Change of Control (defined below), 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 a Executive’s Incentive Compensation Bonus, if any,
pro rated
to Executive’s date of termination; and (iii) the Change of Control Severance Benefit.
Executive’s
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entitlement to the benefits provided in subsections 5.2(c)(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. “Change of Control Severance Benefit” means a lump-sum payment,
less required tax withholding, equal to one and one/half times the Executive’s Annual Base
Compensation at the time of termination, plus the average of the previous two Incentive
Compensation payments. The Change of Control Severance Benefit payments shall commence
not later than thirty (30) days following the date the Company receives the executed
Separation Agreement and General Release. Notwithstanding anything to the contrary
contained in this Agreement, if and to the extent that any payments and rights provided
under this Agreement would cause Executive to be subject to excise tax under Section 280G
or Section 4999 of the Internal Revenue Code, or the corresponding section(s) of any future
federal tax law, then the amount of the payments shall be reduced to the extent necessary
to avoid imposition of any such excise tax. All determinations of the amount of the
reduction shall be made by the Company’s tax counsel, and the cost of making such
determination shall be paid by the Company.
(d) Cessation of Entitlements and Company Right of Offset. Except as otherwise
expressly provided herein, all of Executive’s rights to salary, Executive benefits, fringe
benefits and bonuses hereunder (if any) which would otherwise accrue after the termination
of the Employment Period shall cease upon the date of such termination. The Company may
offset any loans, cash advances or fixed amounts which Executive owes the Company against
any amounts it owes Executive under this Agreement.
(e) Treatment of Options. Executive may be required to exercise any vested
options within ninety (90) days from date of the termination of his employment.
5.3 Survival of Certain Obligations. The provisions of Articles IV, and VI shall
survive any termination of the Employment Period, whether by reason of the occurrence of a
Triggering Event or the expiration of the Initial Term or any Extension Term.
5.4 Definitions. For purposes of Article V, the following definitions apply:
(a) “Resignation” means a voluntary termination of Executive’s employment with the
Company, including Executive’s declining of continued employment in the same or comparable
position with the Company following a Change of Control.
(b) “Termination by the Company for Cause” means termination by the Company of
Executive’s employment for:
(i) The failure of Executive to comply with any of the material provisions of
this Agreement, other than an isolated, insubstantial or inadvertent action not taken
in bad faith and which is remedied by Executive within thirty (30) days after receipt
of written notice thereof given by the Company;
(ii) A conviction of Executive by a court of competent jurisdiction
of a felony;
(iii) The refusal, failure or neglect of Executive to perform his duties
under his employment agreement in a manner that is materially detrimental to the
business or reputation of the Company unless remedied by Executive within thirty (30)
days after receipt of written notice thereof given by the Company;
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(iv) The engagement by the Executive in illegal, unethical or other wrongful
conduct that is materially detrimental to the business or reputation of SXC; or
(v) The pursuit by Executive of interests that are materially adverse to SXC
unless remedied by Executive within thirty (30) days after receipt of written notice
thereof given by the Company;
(c) “Termination by the Company Without Cause” means a termination of Executive’s employment
by the Company which is not a Termination by the Company for Cause, provided that the termination
of the Employment Period on account of the failure of the Company to extend the Employment Period
in accordance with the provisions of Section 2.2 hereof shall constitute a Termination by the
Company Without Cause.
(d) A “Termination Arising Out of a Change of Control” occurs when Executive resigns or is
terminated without cause within twelve (12) months of a “Change In Control”, which shall be
defined under this Agreement to mean any of the following occurrences:
(i) Any person, other than SXC Health Solutions Corp. or an employee benefit
plan of SXC Health Solutions Corp. or the Company, acquires directly or indirectly the
Beneficial Ownership (as defined in Section 13(d) of the Securities Exchange Act of 1934,
as amended) of any voting security of SXC Health Solutions Corp. and becomes, immediately
after and as a result of such acquisition, directly or indirectly, the Beneficial Owner of
voting securities representing 50% or more of the total voting power of all of the
then-outstanding voting securities of SXC Health Solutions Corp.;
(ii) The shareholders of SXC Health Solutions Corp. approve a merger, and such
merger is completed, consolidation, recapitalization, or reorganization of SXC Health
Solutions Corp. or the Company, a reverse stock split of outstanding voting securities, or
consummation of any such transaction if shareholder approval is not sought or obtained,
other than any such transaction that would result in at least 75% of the total voting power
represented by the voting securities of the surviving entity outstanding immediately after,
and as a result of such transaction, being Beneficially Owned by at least 75% of the
holders of outstanding voting securities of SXC Health Solutions Corp. immediately prior to
the transaction, with the voting power of each such continuing holder relative to other
such continuing holders not substantially altered in the transaction; or
(iii) The shareholders of SXC Health Solutions Corp. approve a plan of complete
liquidation of SXC Health Solutions Corp. or the Company or an agreement for the sale or
disposition by SXC Health Solutions Corp. of all or a substantial portion of assets (i.e.,
50% or more) of the total assets of SXC Health Solutions Corp. or the Company.
(e) “Total Disability” means Executive’s inability, because of illness, injury or other
physical or mental incapacity, to perform Executive’s duties hereunder (as determined by the Board
in good faith) for a continuous period of one hundred eighty (180) consecutive days, or for a total
of one hundred eighty (180) days within any three hundred sixty (360) consecutive day period, in
which case such Total Disability shall be deemed to have occurred on the last day of such one
hundred eighty (180) day or three hundred sixty (360) day period, as applicable.
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ARTICLE VI
GENERAL
GENERAL
6.1 Governing Law. This Agreement shall be subject to and governed by the laws of the
State of Illinois without regard to any choice of law or conflicts of law rules or provisions
(whether of the State of Illinois or any other jurisdiction), irrespective of the fact that
Executive may become a resident of a different state.
6.2 Binding Effect. The Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and Executive and Executive’s executors, administrators,
personal representatives and heirs.
6.3 Assignment. Executive expressly agrees for Executive and on behalf of Executive’s
executors, administrators and heirs, that this Agreement and Executive’s obligations, rights,
interests and benefits hereunder shall not be assigned, transferred, pledged or hypothecated in any
way by Executive, Executive’s executors, administrators or heirs, and shall not be subject to
execution, attachment or similar process. Any attempt to assign, transfer, pledge, hypothecate or
otherwise dispose of this Agreement or any such rights, interests and benefits thereunder contrary
to the foregoing provisions, or the levy of any attachment or similar process thereupon shall be
null and void and without effect and shall relieve the Company of any and all liability hereunder.
This Agreement shall be assignable and transferable by the Company (but the Company shall not be
required to assign or transfer this Agreement) to any successor in interest without the consent of
Executive.
6.4 Complete Understanding. This Agreement constitutes the complete understanding
among the parties hereto with regard to the subject matter hereof, and supersedes any and all prior
agreements and understandings relating to the employment of Executive by the Company, including
without limitation any prior compensation plans or compensation agreements entered into between
Executive and the Company.
6.5 Tax Provisions.
(a) Compliance With Section 409A of the Code. To the extent applicable, it is
intended that this Agreement comply with the provisions of section 409A of Internal Revenue Code of
1986 (the “Code”), so as to prevent the inclusion in gross income of any amounts payable or
benefits provided hereunder in a taxable year that is prior to the taxable year or years in which
such amounts or benefits would otherwise actually be distributed, provided or otherwise made
available to Executive. This Agreement shall be construed, administered, and governed in a manner
consistent with this intent. Any provision that would cause any amount payable or benefit provided
under this Agreement to be includable in the gross income of Executive under Code section
409A(a)(l) shall have no force and effect unless and until amended to cause such amount or benefit
to not be so includable (which amendment may be retroactive to the extent permitted by Code section
409A and may be made by Company without the consent of Executive). 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) Executive’s “separation from service” with Company (determined in accordance with
Code section 409A); provided however, that if Executive is a “specified Executive” (within the
meaning of Code section 409A), Executive’s date of payment shall be made on the date which is 6
months after the date of Executive’s separation of service with Company or (ii) Executive’s death.
Any reference in this Agreement to Code section 409A shall also include any
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proposed, temporary or final regulations, or any other guidance, promulgated with respect to such
section by the U.S. Department of the Treasury or the Internal Revenue Service.
(b) Compliance With Section 162(m) of the Code. Notwithstanding anything herein
to the contrary, if the Company reasonably anticipates that the deduction of any payment to
Executive hereunder will be limited or eliminated by the application of Code section 162(m), which
generally limits the deduction of compensation paid by public corporations in excess of $1 million
annually to certain executives, such payment shall be delayed until the earliest date at which the
Company reasonably anticipates that the deduction of the payment would not be limited or
eliminated by the application of Code section 162(m) or the calendar year during which the
Executive’s employment with the Company terminates.
6.6 Amendments. No change, modification or amendment of any provision of
this Agreement shall be valid unless made in writing and signed by all of the parties
hereto.
6.7 Waiver. The waiver by the Company of a breach of any provision of this Agreement
by Executive shall not operate or be construed as a waiver of any subsequent breach by Executive.
The waiver by Executive of a breach of any provision of this Agreement by the Company shall not
operate as a waiver of any subsequent breach by the Company.
6.8 Venue, Jurisdiction, Etc. Executive hereby agrees that any suit, action or
proceeding relating in any way to this Agreement shall be brought and enforced in the Eighteenth
Judicial Circuit, DuPage County, State of Illinois or in the District Court of the United States of
America for the Northern District of Illinois, Eastern Division, and in either case Executive
hereby submits to the jurisdiction of each such court. Executive hereby waives and agrees not to
assert, by way of motion or otherwise, in any such suit, action or proceeding, any right of
removal, any claim that Executive is not personally subject to the jurisdiction of the above-named
courts, that the suit, action or proceeding is brought in an inconvenient forum or that the venue
of the suit, action or proceeding is improper. Executive consents and agrees to service of process
or other legal summons for purpose of any such suit, action or proceeding by registered mail
addressed to Executive at Executive’s address listed in the business records of the Company.
Executive and the Company do each hereby waive any right to trial by jury, Executive or it may have
concerning any matter relating to this Agreement.
6.9 Indemnification of Executive.
(a) Executive is hereby entitled to indemnification for Executive’s acts or omissions in
Executive’s capacity as an Executive or officer of the Company to the same extent as the Company’s
other senior Executives and in the manner provided by the Company’s bylaws. In addition the Company
shall indemnify Executive for any damages suffered or incurred by Executive as a result of serving
as an Officer of the Company provided that Executive has acted honestly and in good faith with a
view to the best interest of the Company. Within ten (10) days after receipt of a claim for
indemnification accompanied by evidence of the liability or expense subject to indemnification, the
Company shall pay or cause to be paid the indemnification claim. Executive shall give notice to the
Company no later than ten (10) days after such Executive hall have been served with written notice
of any claim that may give rise to a claim for indemnification.
(b) Subject to any rights of or duties to any insurer, reinsurer or other third party having
liability for any claim made or brought against Executive, the Company shall have the right, at its
option, to assume, at its own expense, the control of the defence thereof, including the employment
of legal counsel reasonable satisfactory to Executive. If the Company exercised the foregoing
right, Executive shall cooperate with the Company, and make available to it all information under
the control of
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the Executive, which is relevant to the claim. If the Company does not exercise the foregoing
right, Executive shall keep the Company reasonably apprised of the progress of the defence of the
claim. Nothing herein shall preclude Executive, at Executive’s expense, from employing legal
counsel of Executive’s choosing to participate in the defence of any claim made or brought against
Executive in addition to legal counsel employed by the Company.
(c) If the Company elects to assume control of the defence of any claim, the
Company shall not settle or compromise the claim for and on behalf of Executive without the written
consent of Executive; provided, however, that if the Company receives and offer of settlement or
compromise from the other party or parties to the claim in a particular amount or obtains a
commitment from such party or parties to accept a compromise or settlement in such amount if
offered, and if such settlement or compromise requires only the payment of such amount, the
granting of an appropriate release or similar accommodation, and no other relief, and Executive
refuses to consent thereto and elects to continue to defend the claim, then the extent of the
indemnity to which Executive shall be entitled hereunder shall be limited to such amount and the
legal fees and expenses that Executive would have been entitled to receive from the Company if such
compromise or settlement had been accepted.
6.10 Directors and Officers Liability Insurance. The Company shall maintain adequate
Directors and Officers liability insurance coverage, which shall include Executive in Executive’s
capacity as an Officer. The adequacy of the Directors and Officers liability insurance coverage
shall be determined annually by the Board of Directors at its reasonable discretion.
6.11 Severability. If any portion of this Agreement shall be for any reason, invalid
or unenforceable, the remaining portion or portions shall nevertheless be valid, enforceable and
carried into effect.
6.12 Headings. The headings of this Agreement are inserted for convenience only and
are not to be considered in the construction of the provisions hereof.
6.13 Notices. All notices under this Agreement shall be in writing and shall be
deemed properly sent, (i) when delivered, if by personal service or reputable overnight
courier service, or (ii) when received, if sent by certified or registered mail, postage
prepaid, return receipt requested to the recipient at the address indicated below or otherwise
subsequently provided by one party to the other party:
Notices to Executive:
Xxxxxxx Xxxx
Notices to Company:
SXC Health Solutions, Inc.
Attn: Chief Executive Officer
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX. 00000-0000
Attn: Chief Executive Officer
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX. 00000-0000
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With Copies to:
Xxxxx Xxxxxx, Esq.
Holland & Knight LLP
000 Xxxxx Xxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Holland & Knight LLP
000 Xxxxx Xxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
6.13 Counterparts. This Agreement may be executed in one or more counterparts,
all of which, taken together, shall constitute one and the same agreement.
| COMPANY: | EXECUTIVE: | |||||||
| SXC HEALTH SOLUTIONS, INC. | ||||||||
By:
|
/s/ Xxxxxx X. Xxxxx | /s/ Xxxxxxx Xxxx | ||||||
Its:
|
Chairman & CEO | Xxxxxxx Xxxx | ||||||
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