CONSULTING AGREEMENT
Exhibit
10.1
THIS
AGREEMENT, dated as
of March 24, 2005, is made by and between Express Scripts, Inc. (the
“Company”) and
Xxxxxxx X. Xxxx (the “Executive”).
WITNESSETH:
WHEREAS,
Executive is employed as Chief Executive Officer of the Company and as Chairman
and director of the Company's Board of Directors (the “Board”)
pursuant to an employment agreement with the Company dated April 1, 1999 as
amended (the "Employment
Agreement");
WHEREAS,
such
Employment Agreement expires on March 31, 2005, (the "Commencement
Date");
WHEREAS, the
Company desires and has requested that after the Commencement Date and through
the date of the Company's 2006 Annual Meeting, Executive serve as the
non-executive Chairman of the Board and as a consultant to the Company;
WHEREAS, the
Company has agreed that it will nominate Executive as part of the
Company-recommended slate of directors at the Company's 2005 Annual Meeting;
WHEREAS,
Executive
has agreed to serve as the non-executive Chairman of the Board if elected and to
be available at the Company's request to render services to the Company as a
consultant from the Commencement Date through the date of the Company's 2006
Annual Meeting;
WHEREAS, the
Company and Executive desire to set forth the terms and conditions of his
service as non-executive Chairman of the Board and of his service as a
consultant after the Commencement Date;
WHEREAS, the
parties agree the Employment Agreement shall remain in full force and effect
through the Commencement Date and shall thereafter expire, and further agree
that Executive shall be entitled to all compensation and benefits under the
Employment Agreement as of such date (or, as applicable, such earlier date as
may be specified in the Employment Agreement) in accordance with and subject to
the terms of the Employment Agreement;
NOW,
THEREFORE, in
consideration of the foregoing recitals and of the mutual covenants set forth
below, the Company and
Executive agree as follows:
1. Duties,
Responsibilities & Status.
A. Non-Executive
Chairman of the Board.
During the Term of this Agreement (as defined in Section 2(A), below), and
subject to his election to the Board, Executive shall serve as the non-executive
Chairman of the Board and, subject to the direction of the Board from time to
time, shall have all duties and responsibilities commensurate with such position
including without limitation, establishing and reviewing Board agendas;
directing Board information requests to the Company; presiding at Board
meetings; providing directors education on relevant issues; together with the
Chief Executive Officer of the Company, acting on behalf of the Company with
respect to government relations (both legislative and administrative) and
non-financial public relations including acting as spokesperson for the Company
on such topics; acting as adviser on such specific issues and projects as may be
assigned by the Board or any of its committees including litigation advice,
strategic planning review, review of succession planning for the Company's
senior officers, review of the Company's annual budget with the Company's Chief
Executive Officer prior to presentation of such budget to the Board; acting as
adviser to the Company's Chief Executive Officer as may be requested by the
Chief Executive Officer; acting as a representative for the Company in community
involvement matters (including Civic Progress); and serving as a member of the
Board of Directors of ESI Foundation.
B. Consulting.
During the Term of this Agreement (as defined in Section 2(A), below), Executive
shall be available to render consulting services to the Company on such matters
as the Company may request and that are mutually agreed upon by Executive and
the Company ("Consulting
Services");
provided,
that the
times at which Executive provides consulting services shall be requested with
reasonable notice and mutually agreed to by Executive, which consent shall not
be unreasonably withheld; provided,
further,
that
Executive shall not be required to render Consulting Services pursuant to this
Agreement in excess of 35 hours per month. The Company may request that
Executive provide Consulting Services in excess of 35 hours per month and
Executive may agree to provide such additional consulting services
("Additional
Consulting Services") and
upon providing such Additional Consulting Services shall receive additional
compensation as set forth in Section 3(C) hereof. Consulting Services and
Additional Consulting Services shall be rendered at the Company’s corporate
headquarters in Maryland Heights, Missouri or at such other location which is
mutually agreed to by the Company and Executive.
C. Independent
Contractor Status.
During the Term, Executive shall be an independent contractor, and not an
employee of the Company, in all matters pertaining to providing Consulting
Services or Additional Consulting Services hereunder, and Executive shall not
have the authority to assume, create or incur any liabilities or obligations of
any kind (express or implied) against or on behalf of the Company. Further,
Executive shall not be entitled to any compensation or to participate as an
employee in any of the fringe or employee benefit programs of the
Company except
as otherwise expressly provided herein.
2. Agreement
Term & Termination.
A. Agreement
Term.
The Term of this Agreement shall commence the day after the Commencement Date
(the “Effective
Date”) and
shall end on the date of the Company's 2006 Annual Meeting unless earlier
terminated as provided in Section 2(B), below.
B. Early
Termination of the Agreement.
Subject to Section 3(G), below, this Agreement (i) may be terminated at any time
and for any reason by the Board upon giving written notice to Executive, (ii)
may be terminated at any time and for any reason by the Executive upon giving
written notice at least thirty (30) days in advance of such termination and
(iii) shall be terminated upon Executive's death or Disability (as defined in
2(C), below).
C. Disability.
For purposes of this Agreement, “Disability” shall
mean a mental or physical condition which, in the opinion of a physician
selected by Executive with the consent of the Company (whose consent shall not
be unreasonably withheld), renders Executive unable or incompetent to carry out
the duties specified herein and which is expected to be permanent or to last for
an indefinite duration.
D. Failure
to Elect to Board.
The failure of the shareholders of the Company to elect Executive to serve on
the Board at the 2005 Annual Meeting shall not constitute a termination or
breach of this Agreement by the Company, and the provisions of this Agreement
pertaining to Executive’s consulting services to the Company shall remain in
full force and effect.
E. Termination
before Effective Date.
This Agreement shall terminate and be of no further force and effect if
Executive’s employment under the Employment Agreement shall terminate for any
reason prior to the Effective Date.
3. Compensation
and Equity.
A. Compensation
for Services as Non-Executive Chairman.
For his service as non-executive Chairman of the Board pursuant to Section 1(A),
above, the Company shall pay Executive annual compensation at such times and in
such amount as the Company pays under the plan or policy generally in effect for
directors on the Board from time to time. In addition, Executive shall receive
options (the "Director
Options") in
accordance with the Company's plan or policy in effect generally for directors
of the Board; provided that,
notwithstanding any term in such plan or policy to the contrary, Executive's
Director Options shall be 100% fully vested no later than the earlier of (i) the
first anniversary of the grant date of such Director Options and (ii) the date
of the Company's 2006 Annual Meeting, provided that in either case he continues
to serve as a director on the Board through such date.
B. Compensation
for Consulting Services.
During the Term, Executive shall receive compensation for Consulting Services
pursuant to Section 1(B), above, in the amount of $30,000 per month payable on
such dates and in such manner as agreed upon by the Company and Executive which
dates shall not be later than the fifteenth (15th) day of the month following
the month for which such compensation is payable (e.g., no later than May 15th
for amounts due with respect to April).
C. Compensation
for Additional Consulting Services.
In the event the Company requests and Executive agrees to provide Additional
Consulting Services (as defined in Section 1(B), above), the Company shall pay
Executive an amount equal to $7500 per day for such Additional Consulting
Services, and such amounts shall be payable on the same dates and manner as
provided in 3(B), above.
D. Expense
Reimbursement.
Executive shall be entitled to be reimbursed for any and all out-of-pocket
expenses paid by Executive in connection with or related to the services
provided pursuant to this Agreement subject to providing such documentation as
may be required under the Company's applicable policies or programs. In
addition, the Company shall reimburse Executive for all out-of-pocket expenses
(including without limitation, travel, lodging and conference fees) for
attending one (1) conference of Executive's choice on corporate governance
issues in calendar year 2005.
E. Additional
Benefits.
(i) Indemnification.
To the
extent permitted by applicable law, Executive shall be indemnified and held
harmless with respect to his role as a director and non-executive Chairman of
the Board during the Term of this Agreement and thereafter to the same extent as
other officers and directors of the Company; and to the extent permitted by
applicable law, the Executive shall be indemnified and held harmless with
respect to his role as a consultant and with respect to the Consulting Services
and any Additional Consulting Services to the same extent and for the same
period as he is indemnified as a director and non-executive Chairman of the
Board.
(ii) D&O
Coverage. To the
extent permitted by applicable law and to the extent such coverage is available
at commercially reasonable rates, Executive shall be entitled to D&O
coverage during the Term of this Agreement and for a total period of six (6)
years after the Commencement Date under the Company's applicable D&O
coverages and policies.
(iii)
Legal
Fees.
(1)
The
Company shall reimburse Executive for all reasonable legal fees and expenses
incurred in connection with respect to his change in status to non-executive
Chairman of the Board including without limitation reasonable legal fees and
expenses with respect to counseling in connection with, negotiation and drafting
of this Agreement.
(2) The
Company shall reimburse Executive for all reasonable legal, accounting, expert
witness or other fees, costs or expenses (including negotiation and counseling
fees) incurred by Executive in an effort to secure, preserve, establish
entitlement to, or obtain compensation or benefits under this Agreement. The
Company shall, regardless of the outcome of such effort, reimburse Executive (in
accordance with this Section) for such fees and expenses.
(3) The
Company shall reimburse Executive for all reasonable legal fees and expenses of
"shadow counsel" incurred in connection with any pending or future shareholder
and derivative litigation or other claims against the Company in which Executive
is a defendant.
(4) The
Executive's right to reimbursement of legal fees and expenses for reasons other
than those specified in this Section shall be governed by the Company's
by-laws.
(5) Reimbursement
of legal fees and expenses under this Section shall be made on a current basis,
promptly after Executive’s written submission of a request for reimbursement
together with evidence that such fees and expenses were incurred; provided that
solely with respect to reimbursements made pursuant to Section 3E (iii)(2) if
Executive does not substantially prevail in his efforts to secure, preserve,
establish entitlement to, or obtain compensation or benefits under this
Agreement, the Executive shall repay to the Company all such reimbursements.
(iv) Offices
& Support. The
Company shall provide Executive at Company expense such administrative and
executive secretarial support at the Company's office(s) as Executive reasonably
requires or requests in order to perform the duties and responsibilities set
forth herein. In addition, the Company shall provide or reimburse Executive for
the costs and expenses of setting up and maintaining a home office (including
without limitation, business telephone lines, computer, printer, fax and /or
copy machine and related supplies and expenses, cellular phone and/or pda, and
appropriate stationary and office supplies etc.)
(v) Health
Insurance. The
Company shall reimburse Executive for the cost (including a full tax gross-up
for any and all applicable federal, state or local taxes) of such health
insurance coverage (group or individual) for Executive, his spouse and
applicable dependents as Executive in his sole discretion shall select for
calendar years 2005 and 2006 through the date of the Company's 2006 Annual
Meeting.
F. Equity.
Executive agrees that while serving as non-executive Chairman of the Board,
Executive shall retain unencumbered ownership of Company stock (including any
stock acquired upon exercise of the Director Options) having a value of at least
$360,000. To the extent Executive owns Company stock in excess of such amount
("Additional
Equity"),
Executive shall, at his sole discretion, be entitled to sell any portion or all
of such Additional Equity pursuant to one or a series of 10b5-1 plans adopted by
him or otherwise as permitted by applicable securities laws and regulations;
provided,
that,
if the
Company notifies Executive in writing of its desire to purchase all or any
portion of such Additional Equity at the current market price thereof and the
Company and Executive mutually agree to the number of shares to be purchased and
other customary terms and conditions of such purchase or purchases, the
Executive shall agree to sell all or such portion of the Additional Equity to
the Company to the extent and as permitted by applicable securities laws and
regulations.
G. Compensation
upon Early Termination of this Agreement.
In the event that this Agreement is terminated pursuant to Section 2(B)(i) by
the Company prior to the end of the Term, Executive shall receive a lump-sum
payment as of the date of such termination of the compensation described in
3(B), above, payable for the lesser of (i) six (6) months or (ii) the remainder
of the Term of the Agreement in such amount as Executive would have received if
the Agreement continued during such period and Executive continued to provide
Consulting Services hereunder during such period. In addition, the Company shall
pay Executive in a lump-sum any and all amounts due to Executive under this
Section 3 (B) and (C) for any period prior to termination of the Agreement as of
the date of such termination. If this Agreement is terminated pursuant to
Section 2(B)(ii) or (iii) prior to the end of the Term, Executive (or if
applicable, his Beneficiary) shall receive payment hereunder through the date of
termination (pro-rated if termination occurs other than on the last day of a
month), payable not later than the fifteenth day of the next succeeding month.
4. Notices.
Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the other
shall be deemed to have been duly given if given in writing and personally
delivered or sent by mail, registered or certified, postage prepaid with return
receipt requested, as follows:
|
If to the
Company: |
Express
Scripts, Inc.
00000
Xxxxxxxxx Xxxxx
Xxxxxxxx
Xxxxxxx, XX 00000
Attention:
General Counsel & Corporate Secretary
|
|
If to
Executive: |
Xxxxxxx
X. Xxxx
XXXXXXXXXXXX
XXXXXXXXXXXX
|
|
With copy
to: |
Xxxxxx
X. Xxxxx, Esq.
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
0000
Xxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Facsimile:
XXXXXXXXXX |
Either
party may from time to time designate a new address by notice given in
accordance with this Section. Notice shall be effective when actually received
by the addressee.
5. Entire
Agreement.
This Agreement together with the Employment Agreement supersedes any and all
other agreements, either oral or written, between the parties hereto with
respect to the subject matter hereof and contains all of the covenants and
agreements between the parties with respect thereto.
6. Modification.
No change or modification of this Agreement shall be valid or binding upon the
parties hereto, nor shall any waiver of any term or condition in the future be
so binding, unless such change or modification or waiver shall be in writing and
signed by the parties hereto.
7. Counterparts.
This Agreement may be executed in counterparts, each of which shall constitute
an original, but all of which shall constitute one document.
8. Assignment.
Company shall have the right to assign this Agreement to its successors or
assigns. The terms “successors” and “assigns” shall include any person,
corporation, partnership or other entity that buys all or substantially all of
Company’s assets or all of its stock, or with which Company merges or
consolidates. The rights, duties and benefits to Executive hereunder are
personal to him, and no such right or benefit may be assigned by
him.
9. Binding
Effect.
This Agreement shall be binding upon the parties hereto, together with their
respective executors, administrators, successors, personal representatives,
heirs and assigns.
10. Governing
Law.
The validity and effect of this Agreement shall be construed under, governed by
and enforced in accordance with the laws of the State of Missouri, without
regard to the choice of law provisions, statutes, regulations or principles of
this or any other jurisdiction.
11. Non-waiver.
No failure on the part of either Executive or the Company to exercise, and no
delay by either Executive or the Company in exercising any right, power, or
remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or remedy by either Executive or
the Company preclude any other or further exercise thereof or the exercise by
such party of any other right, power or remedy. No express waiver or assent by
either Executive or the Company of any breach of or default in any term or
condition of this Agreement by the other party shall constitute a waiver of or
an assent to any succeeding breach of or default in the same or any other term
or condition hereof.
12. Interest.
If the Company does not pay any cash amount due to Executive under this
Agreement within three business days after such amount first became due and
owing, interest shall accrue on such amount from the date it became due and
owing until the date of payment at an annual rate equal to 100 basis points
above the base commercial lending rate published in The
Wall Street Journal in
effect from time to time during the period of such nonpayment.
13. Beneficiary.
If Executive dies prior to receiving all of the amounts payable to him in
accordance with the terms and conditions of this Agreement, such amounts shall
be paid to the beneficiary (“Beneficiary”)
designated by Executive in Exhibit
A and
thereafter as such designation may be changed by Executive in writing to the
Company during his lifetime, or if no such Beneficiary is designated, to
Executive’s estate. Such payments shall be made in a lump-sum. Such payments
shall not be less than the amount payable to Executive as if Executive had lived
to the date of payment and were the payee. Executive, without the consent of any
prior Beneficiary, may change his designation of Beneficiary or Beneficiaries at
any time or from time to time by a submitting to the Company a new designation
in writing.
14. Confidential
Matters and Proprietary Information.
(a) Executive
acknowledges that during the course of performance of the Consulting Services
and Additional Consulting Services, Executive will acquire and/or develop
certain knowledge, data, and/or intellectual property which is confidential
and/or proprietary to the Company. Such information may include, but is not
limited to, information (including technical information, experience or data)
regarding the Company’s products, business, plans, programs, facilities,
processes, methods, systems, marketing plans, data, equipment, costs, customers
and operations (collectively, the “Information”). The Information shall include
all notes, memoranda, records, tapes, print-outs and other documents, including,
but not limited to, all drafts, copies and excerpts thereof, embodying or
referring to the Information, regardless of the medium on which such information
is stored (collectively, the “Documents”). Executive shall (i) treat all such
Information and Documents as the Company’s confidential and proprietary
property, (iii) not use or disclose such Information or Documents to any third
parties, without in each instance securing the prior written consent of the
Company. All Information and Documents shall be the sole and exclusive property
of the Company and shall be subject to this Section 14. Upon termination or
expiration of this Agreement, Executive shall deliver all records, data,
information, and other documents produced or acquired during the performance of
this Agreement, including anything that contains any portion of the Information,
or any of the Documents, and all copies thereof to the Company. Notwithstanding
the foregoing, Executive may maintain one archival copy of all reports delivered
to the Company and of all working papers necessary to support its analyses,
conclusions and recommendations, provided, that
all such reports and papers shall not be used for any other purpose (other than
to archive and keep a record of such information), shall be retained in a place
and manner sufficient to protect the confidentiality and non-disclosure of such
information, shall continue to be subject to this Section 14, and shall remain
the sole and exclusive property of the Company.
(b) The
obligation of confidence set forth in this Section 14 shall not apply with
respect to information that: (i) is or becomes generally known to the public by
a source other than Executive through no fault of Executive or (ii) is not
acquired by Executive from the Company or from sources who are in breach of an
obligation of confidentiality to the Company. If Executive is required to
disclose any Information and/or Documents by law or a governmental agency acting
within its authority or jurisdiction, or if Executive receives a subpoena or
other validly issued administrative or judicial process requesting all or any
portion of the Information or Documents, Executive shall (x) first immediately
notify the Company of the existence, terms and circumstances surrounding such
request; (y) first consult with the Company on the advisability of taking
legally available steps to resist or narrow such request; and (z) if disclosure
of such Information is required or reasonably deemed appropriate, exercise its
best efforts to obtain a protective order or other reliable assurance that
confidential treatment will be accorded to such portion of the Information that
is to be disclosed which the Company designates.
(c) Executive
acknowledges that for purposes of providing the Consulting Services to the
Company, Executive may receive information regarding certain individuals, which
may include, among other things, Protected Health Information (“PHI”) as defined
under the Health Insurance Portability and Accountability Act of 1996, Subtitle
F, Public Law 104-191, Section 261, et
seq., and
any rules promulgated thereunder from time to time by the U. S. Department of
Health and Human Services (the “HIPAA Rules”). Therefore, Executive shall comply
with applicable state and federal laws, rules and regulations relating to the
confidentiality of all such information.
15. Deliverables,
Works, and/or Intellectual Property.
All Deliverables, Works, and/or Intellectual Property (as defined in this
Section 15) shall be the sole and exclusive property of the Company, shall be
considered, will be, and are works made for hire for the sole and exclusive
benefit of the Company, and the Company shall own any and all right, title and
interest in, to, or under any Deliverables, Works, and/or Intellectual Property.
Executive hereby irrevocably assigns, transfers and conveys to the Company (and
shall require any of its employees, independent contractors, and agents to do
so), all of its and/or their right, title and interest in, to and under the
Deliverables, Works, and Intellectual Property, in the United States and
throughout the world. The Company shall have the sole and exclusive right to
determine whether to seek any copyright, patent, trademark, or other protections
for any of the Deliverables, Works, and/or Intellectual Property, and Executive
agrees that it will reasonably cooperate with the Company in any steps the
Company may take to protect any Deliverables, Works and/or Intellectual Property
including, but not limited to, executing any and all applications, assignments
or other instruments which the Company deems desirable or necessary in order to
protect, confirm, and/or enforce its rights in and to such Deliverables, Works,
or Intellectual Property.
(a) The term
“Deliverables” shall mean any materials or products resulting from the
performance of Consulting Services or Additional Consulting Services including,
but not limited to, all presentations, programs, software, firmware, and other
materials developed, made, produced, and/or delivered, under or in connection
with this Agreement.
(b) The term
“Works” shall mean all works of authorship, tangible expressions, contributory
works, writings, designs, models, drawings, photographs, physical property,
programs, software, source code, object code, screen displays, business models,
computer models, reports, documents, copyrights, derivative works, multimedia,
interactive multimedia, training tools, decision trees, or the like, including,
but not limited to, those that are within the subject matter covered and/or
protectable under Title 17 of the U.S. Code, that are developed, made, produced,
reduced to a tangible medium of expression, and/or delivered, under or in
connection with this Agreement.
(c) The term
Intellectual Property shall mean any inventions, ideas, discoveries, processes,
methods, systems, patent applications, patents, continuing and
continuation-in-part patent applications, divisional patent applications,
reissue applications, reexamination patents, copyright applications, copyrights,
Works, designs, software, programs, models, trademarks, services marks,
trademark applications, trademark registrations, trade dress, logos, names,
slogans, marks, graphic depictions, trade secrets, confidential and/or
proprietary business or technical information, or the like, including anything
created, conceived, generated, reduced to practice, or otherwise developed or
made by Executive, any of its employees, independent contractors, and/or agents,
whether alone or with others, under or in connection with the Consulting
Services or Additional Consulting Services and/or this Agreement.
(d) Deliverables,
Works, and Intellectual Property shall not include: (i) general skills,
know-how, methods, techniques, modules, and technology known and used by
Executive prior to Executive’s provision of any services to the Company under
this Agreement (“Tools”); (ii) commercially available software that may be used
by Executive and licensed from third-parties for the development, maintenance or
implementation of the work (“Third-Party Rights”). All Tools shall be and remain
the property of Executive (to the extent Executive owns such rights), except to
the extent that Executive hereby grants the Company a perpetual, non-exclusive,
irrevocable, paid-up royalty-free, worldwide, license to use, reproduce,
display, transmit, market, sell, modify, enhance, and create derivative works of
any such Tools (and to have third parties perform such activities on the
Company’s behalf) in connection with the Deliverables, Works, and Intellectual
Property provided and/or developed hereunder.
16. Survival.
Sections 3(E)(i), (ii), (iii) and (v), Section 3(G), Sections 14 and 15 shall
survive the expiration or termination for any reason of this Agreement.
IN
WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
|
EXPRESS
SCRIPTS, INC.
By: /s/
Xxxx X.
Xxxxxxx
Name:
Xxxx X.
Xxxxxxx
Title: Director
and Chairman of
Compensation &
Management Development
Committee
| |
|
EXECUTIVE:
/s/
Barrett A.
Xxxx
Xxxxxxx
X. Xxxx |
