PERFORMANCE SHARE AWARD AGREEMENT UNDER THE EXPRESS SCRIPTS, INC.
Exhibit
10.2
UNDER
THE
EXPRESS
SCRIPTS, INC.
2000
LONG-TERM INCENTIVE PLAN
THIS
AWARD AGREEMENT
is made
and entered into February 28, 2006 (the "Date of Grant"), by and between Express
Scripts, Inc. (the "Company"), and «Name»
("Employee").
BACKGROUND
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A.
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The
Board of Directors of the Company (the "Board of Directors") has
adopted,
and the Company's shareholders have approved, the Express Scripts,
Inc.
2000 Long-Term Incentive Plan (the "Plan"), pursuant to which performance
share incentive awards may be granted to employees of the Company
and its
subsidiaries and certain other individuals.
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B.
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The
Board of Directors intends to amend the Plan, subject to approval
of the
shareholders of the Company, to revise the performance measures
thereunder.
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C.
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The
Company desires to grant to Employee a performance share award under
the
terms of the Plan.
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| D. | Pursuant to the Plan, the Company and Employee agree as follows: |
AGREEMENT
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1.
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Grant
of Award.
Pursuant
to action of the Committee (as defined herein) which was taken on
the Date
of Grant, the Company grants to Employee «Shares»
performance shares ("Performance Shares"), subject to the terms,
conditions, and adjustments set forth in this Award Agreement and
Exhibit
A hereto. The Performance Shares granted under this Section 1 are
referred
to in this Award Agreement as the "Target Grant."
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2.
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Award
Subject to Plan.
This
award is granted under, and is expressly subject to, the terms and
provisions of the Plan, as amended from time to time, which terms
are
incorporated herein by reference, and this Award Agreement. The
Committee described in Section 3 of the Plan (the "Committee") has
been
appointed by the Board of Directors, and designated by it, as the
Committee to make awards. This award is subject to the Company’s
stockholders approving an amendment to the Plan to reflect the performance
measures used hereunder before any compensation is paid pursuant
to this
award. In the event that the stockholders of the Company do not so
approve an amendment to the Plan, this award shall be void and of
no force
and effect.
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3.
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Performance
Period.
The performance period for this award shall be as set forth on Exhibit
A
hereto (the "Performance Period").
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4.
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Payment.
Subject to early termination of this Award Agreement pursuant to
Section 6
below, following the end of the Performance Period and during the
calendar
year in which such Performance Period ends, the Company will deliver
to
Employee one share of the Company's Stock for each then-outstanding
Performance Share under this Award Agreement; except that, fractional
Shares shall be rounded down to the nearest whole Share and that
a portion
of the payment shall be withheld to satisfy the payment of taxes
required
by law or to take such other action as may be necessary in the opinion
of
the Company to satisfy all obligations for withholding of such taxes
as
provided in Section 7.
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| 5. |
Performance Criteria and Adjustments.
The
Target Grant shall be adjusted pursuant to the Company’s performance
against certain criteria (the “Performance Criteria”) as further set out
on Exhibit A hereto.
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6.
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Termination
of Award.
This
Award Agreement will terminate and be of no further force or effect
on the
date that Employee is no longer actively employed by the Company
or any of
its Affiliates, whether due to voluntary or involuntary termination,
other
than on account of death, Disability or Retirement, prior to the
date on
which the Performance Period ends. Employee will, however, be
entitled to receive any Stock payable under Section 4 of this Award
Agreement if Employee's employment terminates after the Performance
Period
but before Employee's receipt of such Stock. If Employee’s
employment terminates before the end of the Performance Period on
account
of death, Disability or Retirement, any portion of this award which
has
not yet vested shall vest at such time, but only to the extent the
Performance Criteria are achieved and any payment under Section 4
hereof
shall be prorated for the portion of the Performance Period during
which
Employee was employed by the Company or any Affiliate. Without
limiting the foregoing, in the event Employee’s employment terminates
before the end of the Performance Period on account of death, Disability
or Retirement, any portion of the award which vests in accordance
with the
foregoing sentence shall be payable at the time and in the manner
set
forth in Section 4 after the end of the Performance Period.
Notwithstanding the foregoing or any provision of the Plan to the
contrary, upon a Change in Control prior to the date on which the
Performance Period ends, and provided that Employee continues to
be
actively employed on the date of such Change in Control or terminated
on
account of death, Disability or Retirement prior to such Change in
Control, Employee shall receive in cash the value of one share of
Company
Stock on the last trading day before the Change in Control multiplied
by
the number of Performance Shares awarded pursuant to this Agreement.
The amount payable in the preceding sentence shall be subject to
applicable withholding taxes. Notwithstanding anything herein to the
contrary, any payment upon a Change in Control shall not be prorated,
including with respect to any payment made upon a Change in Control
after
termination on account of death, Disability or Retirement. This
Award shall terminate immediately following payment upon a Change
in
Control, and no further payment shall be made hereunder.
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7.
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Tax
Withholding.
Employee
must pay, or make arrangements acceptable to the Company for the
payment
of, any and all federal, state, and local income and payroll tax
withholding that in the opinion of the Company is required by law.
Unless Employee satisfies any such tax withholding obligation by
paying
the amount in cash or by check, the Company will withhold cash and/or
shares of Stock having a Fair Market Value on the date of withholding
sufficient to cover the withholding obligation.
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8.
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Non-Transferability.
Neither
this award nor any rights under this Award Agreement may be assigned,
transferred, or in any manner encumbered except by will or the laws
of
descent and distribution, and any attempted assignment, transfer,
mortgage, pledge or encumbrance except as herein authorized, will
be void
and of no effect.
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9.
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Definitions:
Copy of Plan and Plan Prospectus.
To the extent not specifically defined in this Award Agreement, all
capitalized terms used in this Award Agreement will have the same
meanings
ascribed to them in the Plan. By signing this Award Agreement,
Employee acknowledges receipt of a copy of the Plan and the related
Plan
Prospectus.
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10.
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Choice
of Law.
To the extent that federal laws do not otherwise control, this Award
Agreement and all determinations made and actions taken hereunder
shall be
governed by the laws of the State of Delaware, without giving effect
to
principles of conflicts of laws, and construed accordingly.
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An
authorized representative of the Company has signed this Award Agreement, and
Employee has signed this Award Agreement to evidence Employee's acceptance
of
the award on the terms specified in this Award Agreement, all as of the Date
of
Grant.
EXPRESS
SCRIPTS, INC.
By: ___________________________________
Its:
__________________________________
Employee
