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EXHIBIT 10-X (ii)
SEVERANCE AGREEMENT
AND GENERAL RELEASE
Xxxxxxx X. Xxxxxxx ("Xxxxxxx") and Priority Healthcare Corporation, a
subsidiary of BINDLEY WESTERN INDUSTRIES, INC. (all affiliated organizations
are referred to herein as "Bindley Western") hereby execute this Severance
Agreement And General Release ("Agreement") and pursuant thereto agree as
follows:
1. Xxxxxxx has been employed by Bindley Western and various of its
affiliated organizations since 1993. For reasons discussed, Xxxxxxx
desires to resign his employment with Bindley Western effective August
7, 1995.
2. Both Xxxxxxx and Xxxxxxx Western desire to resolve any and all claims
and disputes or issues which have arisen or could arise concerning
Xxxxxxx'x employment with or service for Bindley Western and the
severance of that employment and service. To accomplish such a
resolution, they have entered into this Agreement.
3. On or before August 25, 1995, Bindley Western will pay Xxxxxxx any and
all salary payments and earned but unused vacation benefits to which
he is entitled as an employee of Bindley Western, including August 25,
1995.
4. Upon execution of this Agreement, Xxxxxxx agrees that he has received
any and all salary payments and earned but unused vacation benefits to
which he is entitled as an employee of Bindley Western, including
August 25, 1995.
5. In addition to such payments and benefits, and as consideration for
Xxxxxxx'x service to Bindley Western and execution of and compliance
with the terms of this Agreement, Bindley Western agrees to provide to
Xxxxxxx, and Xxxxxxx agrees to accept, the following supplemental
severance payments and benefits:
x. Xxxxxxx Western will pay Xxxxxxx a sum each month during the
period August 7, 1995 through January 1, 1996 equivalent to
Xxxxxxx'x normal monthly salary
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($11,000) less normal withholding for federal, state and local
taxes. The first such payment shall be made on October 1,
1995, the second on November 1, 1995, the third on December 1,
1995, and the final on January 1, 1996.
b. Should Xxxxxxx elect to continue his health insurance coverage
under the provisions of the Comprehensive Omnibus Budget
Reconciliation Act of 1986, Bindley Western will reimburse
Xxxxxxx a sum equivalent to Xxxxxxx'x premium each month
Xxxxxxx so continues the coverage, up to but not beyond
December 31, 1995. This monthly amount totals $474.98 for
family medical coverage and $34.56 for family dental coverage.
c. On or before November 7, 1995, Xxxxxxx shall purchase the
Bindley Western vehicle (1992 Ford Explorer) that he currently
drives for $12,000. If Xxxxxxx has not paid the $12,000 to
Bindley Western by November 7, 1995, Bindley Western shall
have the right to set off $12,000 from Xxxxxxx'x November and
December severance payments. If such purchase election is not
made by Xxxxxxx upon signing this Agreement, he shall return
to Bindley Western such vehicle in its current condition by
September 1, 1995.
d. Pursuant to the July 31, 1995 approval of Bindley Western's
Compensation And Stock Option Committee, Xxxxxxx shall be
permitted to exercise the vested Incentive Stock Options and
Nonqualified Stock Options granted on December 10, 1993 and
December 9, 1994 on or before March 9, 1996. Such extension
shall be irrevocable unless Xxxxxxx in any way breaches the
Agreement and, in such event, Xxxxxxx would then forfeit all
of his non vested options. All other vested options
previously awarded to Xxxxxxx per Schedule A attached must be
exercised on or before November 7, 1995.
6. Xxxxxxx recognizes his continuing responsibilities to Bindley Western
with respect to confidential and
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proprietary information and material. Xxxxxxx therefore warrants,
covenants and agrees:
a. That, during his employment and service with Bindley Western,
he has not disclosed outside the ordinary course of business
to others not employed by Bindley Western any trade secrets or
other confidential or proprietary information of Bindley
Western, in any form whatsoever, including but not limited to
any and all proprietary or confidential information or trade
secrets pertaining to (1) the operations; (2) employee,
vendor, or customer relationships; (3) the company's research,
development and other investigational interests and
activities; (4) customer lists; or (5) any other confidential
information of a financial or business nature of either
Bindley Western or any of its affiliated organizations,
including Priority Healthcare Corporation, Xxxxxxx Xxxxxxx,
XXX Xxxxxxx, 0X Xxxxxxx, XX-0, Inc., IV-One Services, Inc. or
National Pharmacy Providers, Inc.
b. That, subsequent to his employment and service with Bindley
Western, he will not, without Bindley Western's prior written
consent, disclose to anyone any of such trade secrets or other
confidential or proprietary information of Bindley Western or
any of its affiliated organizations in any form whatsoever.
c. That he has returned, or will return prior to September 1,
1995, to Bindley Western all originals and all copies of all
materials of any kind whatsoever of a trade secret,
confidential or proprietary nature to Bindley Western or any
of its affiliated organizations which were in his possession
or custody or under his control during his employment or
service and up to and including the date of this Agreement;
that he has not knowingly given any such materials, either
directly or indirectly, to others not in the employ of Bindley
Western without Bindley Western's prior written consent; and
that in the future he will not obtain or give any such
materials, either directly
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or indirectly, to others not in the employ of Bindley Western
without Bindley Western's prior written consent.
d. In exchange for the additional consideration set forth in
Paragraph 5a.-d. above, Xxxxxxx agrees not to engage, prior to
January 1, 1996, in any businesses involving the selling or
distributing of pharmaceutical drugs, medical and surgical
supplies, and related products and services in the United
States as an employee of a drug or device distributor without
first obtaining the prior written consent of Xxxxxxx X.
Xxxxxxx to do so.
7. Xxxxxxx covenants that he has returned, or will return prior to
September 1, 1995, all other property of Bindley Western, including
but not limited to keys, credit cards, files, personal computers,
documents and any other such property in his possession or custody at
his office, personal residence, or elsewhere.
8. If it is necessary for Bindley Western to call upon him to provide
evidence in judicial, administrative or other proceedings occurring
subsequent to his resignation, Xxxxxxx agrees to cooperate in making
himself available for such proceedings, and Bindley Western agrees to
reimburse his reasonable expenses and fees for his time spent in such
matters.
9. Xxxxxxx agrees and covenants that he will not xxx Xxxxxxx Western
Industries, Inc., any of its affiliated organizations or any of
Bindley Western's or its affiliated organizations' officers,
directors, employees, agents or representatives or commence any
proceeding or action in any forum, administrative or judicial, arising
out of, connected with or in any way related to his employment with or
service for, or his severance from employment with Bindley Western.
10. Xxxxxxx hereby releases and forever discharges Bindley Western
Industries, Inc., its affiliated organizations, and
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its and their officers, directors, employees, agents or
representatives from any and all claims, liabilities, demands, actions
and causes of action of every nature, kind and character, known and
unknown, which have or may have arisen or accrued to Xxxxxxx by reason
of his employment by and service for Bindley Western, including,
without limitation, any and all claims that the severance from his
employment and service resulted from a violation or breach of any
federal, state, or local statute, regulations, ordinance, or common
law, or any contract, and including, without limitation, any charges
or claims regarding possible discrimination (based on age, race,
ethnic background, sex, disability, religion), wrongful termination,
or express or implied contract, any and all claims for salary,
vacation pay, fringe benefits, severance pay, profit sharing benefits,
costs and attorneys' fees and any and all other compensation,
benefits, damages or fees, whether or not such claims have been or
could have been asserted by Xxxxxxx at any time up to and including
the date of this Agreement, excepting only claims which may arise as a
result of the failure of Bindley Western to perform under this
Agreement and any other amounts to which Xxxxxxx is entitled under
Bindley Western's group benefits programs.
11. Bindley Western Industries, Inc., on behalf of itself and its
affiliated organizations and its and their officers, directors,
employees, agents or representatives agrees and covenants not to xxx
Xxxxxxx or commence any proceeding or action in any forum,
administrative or judicial, arising out of, connected with or in any
way related to his employment with or service for, or his severance
from employment with Bindley Western.
12. Bindley Western Industries, Inc., on behalf of itself and its
affiliated organizations and its and their officers, directors,
employees, agents or representatives hereby releases and forever
discharges Xxxxxxx from any and all claims, liabilities, demands,
actions and causes of action of every nature, kind and character,
known and unknown, which have or may have arisen or accrued to Xxxxxxx
by
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reason of his employment by and service for Bindley Western and its
affiliated organizations, including, without limitation, any and all
claims resulting from an alleged violation or breach of any federal,
state, or local statute, regulations, ordinance, or common law, or any
contract, whether or not such claims have been or could have been
asserted at any time up to and including the date of this Agreement,
excepting only claims which may arise as a result of the failure of
Xxxxxxx to perform under this Agreement. In the event Xxxxxxx in any
way breaches the Agreement, Bindley Western shall immediately cease
paying the additional consideration set forth in Paragraph 5a.-b.
above and Bindley Western's future obligations to pay such
consideration shall terminate.
13. The parties agree to keep the contents of this Agreement confidential,
except any disclosures that may be compelled by a court of competent
jurisdiction pursuant to a civil or criminal proceeding.
14. Should any provision of this Agreement be declared or determined by
any court of competent jurisdiction to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the
remaining parts, terms, or provisions shall not be affected thereby
and said illegal, unenforceable or invalid part, term or provision
shall be deemed not to be a part of this Agreement.
15. Xxxxxxx represents and acknowledges that in executing this Agreement
he does not rely and has not relied upon any representation or
statement with regard to the subject matter, basis or effect of this
Agreement, other than those specifically stated in this Agreement.
16. This Agreement sets forth the entire agreement between the parties
hereto, and fully supersedes any and all prior agreements or
understandings, written or oral, between the parties hereto pertaining
to the subject matter hereof. It may be modified only by the
agreement of the parties hereto memorialized in writing and executed
by each of them.
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17. This Agreement shall be binding upon each of the parties hereto and
upon their legal representatives, heirs, successors, and assigns.
18. This Agreement shall be interpreted under and according to the laws of
the State of Florida. In the event suit is brought for breach or
default of any of the terms or conditions of this Agreement, the party
prevailing in any such action, in law or in equity, shall be entitled
to reasonable attorneys' fees and court costs.
I, XXXXXXX X. XXXXXXX, AGREE THAT I HAVE READ AND UNDERSTAND THIS
AGREEMENT; THAT I HAVE BEEN GIVEN UP TO 21 DAYS TO THINK ABOUT THE AGREEMENT;
THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH SUCH SOURCES OF COUNSEL
AS I DESIRE REGARDING THE TERMS OF THIS AGREEMENT; AND THAT I HAVE EXECUTED IT
VOLUNTARILY AND OF MY OWN FREE WILL.
Date: August 30, 1995
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/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Witness Xxxxxxx X. Xxxxxxx
Date: August 31, 1995 BINDLEY WESTERN INDUSTRIES, INC.
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By: /s/ Xxxxxxx X. XxXxxxxxx,
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Xxxxxxx X. XxXxxxxxx
Ex V.P. & General Counsel
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Options Statement as of 03/25/1995
BINDLEY WESTERN INDUSTRIES
Xxxxxxx Xxxxxxx
X.X. Xxx 000000
Xxxxxxxxx Xxxxxxx, XX 00000
Options Options Option Date of Options
Grant Date Type Granted Outstanding Price Expiration Vested
----------- ------------- -------- ----------- ---------- ----------- --------
05/20/1993 Non Qualified 10,000 10,000 $11.5000 05/20/2003 5,000 (current)
2,500 on 05/20/1996
2,500 on 05/20/1997
12/10/1993 Incentive Stock 8,000 8,000 $11.5000 12/10/2003 8,000 (current)
12/10/1993 Non Qualified 12,000 12,000 $11.5000 12/10/2003 3,000 (current)
3,000 on 12/10/1995
3,000 on 12/10/1996
3,000 on 12/10/1997
12/09/1994 Incentive Stock 7,500 7,500 $13.2500 12/09/2004 0 (current)
7,500 on 12/09/1995
0 (current)
12/09/1994 Non Qualified 12,500 12,500 $13.2500 12/09/2004 3,125 on 12/09/1995
3,125 on 12/09/1996
3,125 on 12/09/1997
3,125 on 12/09/1998
======== ====== =========
TOTALS 50,000 50,000 16,000
By 11/7/95
7,500 ) By 3/9/96
3,125 )
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26,625
3,000 By 3/9/95
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29,625
Schedule A
