PERFORMANCE SHARE AWARD AGREEMENT UNDER THE EXPRESS SCRIPTS, INC.
Exhibit
10.1
UNDER
THE
EXPRESS
SCRIPTS, INC.
2000
LONG-TERM INCENTIVE PLAN
THIS
AWARD AGREEMENT
is made
and entered into __________ (the "Date of Grant"), by and between Express
Scripts, Inc. (the "Company"), and __________ ("Employee").
BACKGROUND
|
A.
|
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.
|
|
B.
|
The
Board of Directors intends to amend the Plan, subject to approval
of the
shareholders of the Company, to revise the performance measures
thereunder.
|
|
C.
|
The
Company desires to grant to Employee a performance share award under
the
terms of the Plan.
|
D. Pursuant
to the Plan, the Company and Employee agree as follows:
AGREEMENT
|
1.
|
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."
|
|
2.
|
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.
|
|
3.
|
Performance
Period.
The performance period for this award shall be as set forth on Exhibit
A
hereto (the "Performance Period").
|
|
4.
|
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.
|
|
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. |
|
6.
|
Termination
of Award.
|
a. Except
as
otherwise specifically set forth in this Section 6, 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 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.
b. 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 ultimately 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.
c. If
Employee’s employment is terminated by the Company without Cause before the end
of the Performance Period, a portion of this award which has not yet vested
shall vest at such time, which portion shall be equal to the lesser
of;
(i) the
portion of the award which would have vested and been paid had the Employee’s
employment been terminated due to death, Disability or Retirement, as determined
under Section 6(b) above (after taking into account the pro-ration for the
portion of the Performance Period during which Employee was employed by the
Company or any Affiliate); or
(ii) the
portion of the award which would have vested and been paid, based on the extent
the Performance Criteria had been achieved, if the Performance Period had ended
as of the first day of the Company’s fiscal quarter during which the Employee’s
employment is terminated, which amount shall also be prorated for the portion
of
the actual Performance Period during which Employee was employed by the Company
or any Affiliate.
d. Without
limiting the foregoing, in the event Employee’s employment terminates before the
end of the Performance Period on account of death, Disability, Retirement or
termination by the Company without Cause, any portion of the award which vests
in accordance with either Section 6(b) or 6(c) above shall be payable at the
time and in the manner set forth in Section 4 after the end of the Performance
Period.
e.
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 (i) provided
that
either Employee continues to be actively employed by the Company or any
Affiliate on the date of such Change in Control, or such Employee’s employment
was 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 (without
pro-ration), or (ii) if the Employee’s employment was terminated by the Company
without Cause 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 lesser of (A) the total number of
Performance Shares awarded pursuant to this Agreement, prorated for the portion
of the Performance Period during which Employee was employed by the Company
or
any Affiliate, or (B) the number of Performance Shares which would have been
paid under Section 6(c)(ii) above. The amount payable under this Section 6(e)
shall be subject to applicable withholding taxes. This Award shall terminate
immediately following payment upon a Change in Control, and no further payment
shall be made hereunder.
|
7.
|
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.
|
|
8.
|
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.
|
|
9.
|
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.
|
|
10.
|
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.
|
***********
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:
Name:
Title:
Employee
