Exhibit 10.32
SEVERANCE AGREEMENT
THIS AGREEMENT, dated as of the 26th day of May, 1999, is by and
between Express Scripts, Inc., a Delaware corporation (hereinafter referred to
as the "Company"), and Mark O. Johnson (hereinafter referred to as the
"Executive").
RECITALS:
A. The Board of Directors of the Company (the "Board") considers it
essential to the best interests of the Company and its stockholders that its key
management personnel be encouraged to remain with the Company and its
subsidiaries and to continue to devote full attention to the Company's business
and has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of its key management
personnel.
B. The Executive currently serves as a Senior Vice President of the Company
and his or her services and knowledge are valuable to the Company in connection
with the management of one or more of the Company's principal businesses,
subsidiaries, divisions or functions.
C. The Board believes the Executive has made and is expected to continue to
make valuable contributions to the productivity and profitability of the Company
and its subsidiaries.
D. The Board believes it imperative that the Company and the Board be able
to rely upon the Executive to continue in his or her position, and that the
Company and the Board be able to receive and rely upon his or her advice, if so
requested, as to the best interests of the Company and its stockholders without
concern that he or she might be distracted by the personal uncertainties and
risks created by events that are not within such person's control, and to
encourage the Executive's full attention and dedication to the Company.
E. The Board, upon the recommendation of the Compensation Committee of the
Company (the "Compensation Committee"), has approved this Agreement and
authorized and directed its execution and delivery on behalf of the Company.
TERMS AND CONDITIONS:
NOW, THEREFORE, to assure the Company and its subsidiaries that it will
have the continued, undivided attention, dedication and services of the
Executive and the availability of the Executive's advice and counsel, and to
induce the Executive to remain in the employ of the Company and its
subsidiaries, and for other good and valuable consideration, the adequacy and
sufficiency of which are hereby acknowledged, the Company and the Executive
agree as follows:
1. Certain Definitions
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) "Cause" means:
(i) any act or acts by the Executive, whether or not in connection
with his or her employment by the Company, constituting a felony under
applicable law;
(ii) any act or acts of gross dishonesty or gross misconduct on the
Executive's part which result or are intended to result directly or
indirectly in gain or personal advantage or enrichment at the expense of
the Company or its subsidiaries; or
(iii) any violation by the Executive of his or her obligations to the
Company or its subsidiaries which violation is demonstrably willful and
deliberate on the Executive's part and which results in material damage to
the business or reputation of the Company or its subsidiaries.
Notwithstanding the foregoing, the employment of the Executive shall
in no event be deemed to have been terminated by the Company for "Cause" if
termination of his or her employment by the Company took place: (A) as the
result of bad judgment or negligence on the part of the Executive other
than gross negligence; (B) because of an act or omission believed by the
Executive in good faith to have been in or not opposed to the interests of
the Company and its subsidiaries; (C) for any act or omission in respect of
which a determination could properly be made that the Executive met the
applicable standard of conduct prescribed for indemnification or
reimbursement or payment of expenses under the Certificate of Incorporation
or bylaws of the Company or the laws of the state of incorporation of the
Company, in each case as in effect at the time of such act or omission; (D)
as the result of an act or omission which occurred more than twelve (12)
calendar months prior to the Executive's having been given Notice of
Termination (as defined below) for such act or omission unless the
commission of such act or omission could not at the time of such commission
or omission have been known to the President of the Company or to a member
of the Board (other than the Executive, if he or she is then a member of
the Board), in which case more than twelve (12) calendar months from the
date that the commission of such act or such omission was or could
reasonably have been so known; or (E) as the result of a continuing course
of action which commenced and was or could reasonably have been known to
the President of the Company or to a member of the Board (other than the
Executive) more than twelve calendar months prior to the Executive having
been given Notice of Termination.
(b) "Change in Control" means and shall be deemed to have occurred upon:
(i) the acquisition at any time by a "person" or "group" (as that term
is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (excluding, for this purpose, the
Company or any subsidiary or any employee benefit plan of the Company or
any subsidiary) of beneficial ownership (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities representing 30% or
more of the combined voting power in the election
of directors of the then-outstanding securities of the Company or any
successor of the Company;
(ii) when individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any person who becomes a director
subsequent to the date hereof whose election or nomination for election by
the Company's stockholders was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board (other than an individual
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors of
the Company, as such terms are used in Rule 14a-11 of Regulation 14A under
the Exchange Act) shall be, for purposes of this definition, considered as
though such person were a member of the Incumbent Board;
(iii) approval by the stockholders of the Company of the liquidation
of the Company or any sale or disposition, or series of related sales or
dispositions, of 50% or more of the assets or earning power of the Company;
or
(iv) approval by the stockholders of the Company and consummation of
any merger or consolidation or statutory share exchange to which the
Company is a party and as a result of which the persons who were
stockholders of the Company immediately prior to the effective date of the
merger or consolidation or statutory share exchange shall have beneficial
ownership of less than 50% of the combined voting power in the election of
directors of the surviving corporation following the effective date of such
merger or consolidation or statutory share exchange.
Notwithstanding the foregoing, a "Change in Control" shall not include
(A) the sale or other transfer of beneficial ownership of Class B Common
Stock of the Company by NYLIFE Healthcare Management, Inc. to (or any
acquisition of such beneficial ownership by) an affiliate thereof,
including, without limitation, New York Life Insurance Company or any
holding company formed by any such affiliate, or (B) an isolated sale,
spin-off, joint venture or other business combination by the Company, which
involves one or more divisions or subsidiaries of the Company and is
approved by a majority vote of the Incumbent Board.
(c) "Good Reason" means the occurrence of any one or more of the following:
(i) Any material breach by the Company of any of the provisions of
this Agreement or any other agreement between the Company and the Executive
or any material failure by the Company to carry out any of its obligations
hereunder or thereunder, in any such case, after receipt of written notice
of such breach or failure from the Executive and the failure by the Company
to cure such breach or failure within fifteen (15) business days after
receipt of such notice;
(ii) The Company's requiring the Executive to be based at any office
or location more than 50 miles from his or her then-current office or
location at which
he or she is then based, except for travel reasonably required in the
performance of the Executive's responsibilities to the extent substantially
consistent with the Executive's business travel obligations prior to such
required relocation, either (A) within three (3) years of any prior
relocation at the Company's request (other than a relocation in connection
with his or her initial employment by the Company) or (B) within two (2)
years following any Change in Control;
(iii) The assignment to the Executive of any duties inconsistent in
any material adverse respect with his or her position, authority or
responsibilities with the Company and its subsidiaries immediately prior to
such assignment, or any other material adverse change in such position,
including titles, authority, or responsibilities, as compared with the
Executive's position immediately prior to such change;
(iv) A material reduction by the Company in the amount of the
Executive's base salary or target annual bonus compensation paid or payable
as compared to that which was paid or made available to the Executive
immediately prior to such reduction; or
(v) The failure by the Company to continue to provide the Executive
with substantially similar perquisites or benefits the Executive in the
aggregate enjoyed under the Company's benefit programs (other than
long-term incentive compensation programs), such as any of the Company's
pension, savings, vacation, life insurance, medical, health and accident,
or disability plans in which he or she was participating at the time of any
such discontinuation (or, alternatively, if such plans are amended,
modified or discontinued, substantially similar equivalent benefits thereto
in the aggregate), or the taking of any action by the Company which would
directly or indirectly cause such benefits to be no longer substantially
equivalent in the aggregate to the benefits in effect immediately prior to
taking such action; provided, that any amendment, modification or
discontinuation of any plans or benefits referred to in this Subsection (v)
that generally affect substantially all domestic salaried employees of the
Company shall not be deemed to constitute Good Reason.
2. Obligations of the Company Upon Termination; Conditions to the Company's
Obligations; Acknowledgments and Agreements of the Executive
(a) Death or Disability. If the Executive's employment is terminated by
reason of the Executive's death or disability, this Agreement shall
terminate without further obligations to the Executive's legal
representatives or the Executive, as the case may be, under this Agreement.
For the purposes of this Agreement, "disability" shall have the same
definition as contained in any long-term disability insurance plan or
program of the Company in which the Executive is participating at the time
of termination of his or her employment. If the Executive is not so
participating or is participating in more than one such plan or program at
the time of termination, "disability" means the Executive's inability by
reason of illness or other physical or mental disability to perform the
principal duties required by the position held by the Executive at the
inception of such illness or disability for any consecutive 180-day period.
A determination of "disability" shall be subject to the certification of a
qualified
medical doctor agreed to by the Company and the Executive or, in the
Executive's incapacity to designate a doctor, the Executive's legal
representative. If the Company and the Executive cannot agree on the
designation of a doctor, each party shall nominate a qualified medical
doctor and the two doctors shall select a third doctor; the third doctor
shall make the determination as to "disability."
(b) Termination by the Company for Cause; Termination by the Executive
Other Than for Good Reason. If the Executive's employment shall be
terminated by the Company for Cause or by the Executive other than for Good
Reason, this Agreement shall terminate without further obligations to the
Executive on the Termination Date.
(c) Termination by the Company Other Than for Cause; Termination by the
Executive for Good Reason. If the Company shall terminate the Executive's
employment other than for Cause, or the employment of the Executive shall
be terminated by the Executive for Good Reason, the Executive shall be
entitled, subject to Sections 2(e) and 4 hereof, to a severance benefit in
an amount equal to (i) twelve (12) times the monthly base salary being paid
to the Executive immediately prior to the Termination Date plus (ii) an
amount equal to the product of (x) the Executive's Bonus Potential for the
year in which the Termination Date occurs (the "Termination Year")
multiplied by (y) the average percentage of the Bonus Potential earned by
the Executive for the three (3) full years immediately preceding the
Termination Year (or such shorter period if the Executive was employed by
the Company for less than three (3) full years and received or was eligible
to receive a bonus during such period), which product shall be prorated for
the portion of the Termination Year in which the Executive was employed by
the Company. For purposes of this Agreement, "Bonus Potential" shall mean
the maximum bonus amount the Executive could receive under the terms of his
or her annual bonus letter or, if no bonus letter is issued, otherwise in
accordance with the terms of the Company's bonus plan then in effect for
all senior executives of the Company. If a maximum bonus amount is not
determinable, then the Compensation Committee shall determine in good faith
the amount of the bonus the Executive could reasonably have been expected
to have received for the Termination Year, and such determination shall be
final and binding on all parties; provided that, for purposes of this
Agreement, if a maximum bonus amount is not determinable, in no event shall
such amount be less than the average of the actual bonus payment received
by the Executive in respect of the three (3) full years immediately
preceding the Termination Year (or such shorter period if the Executive was
employed by the Company for less than three (3) years).
(d) Payments in Installments. The Company shall pay the severance benefit
required under Section 2(c) hereof, without interest thereon, in four (4)
substantially equal quarterly installments, payable on the first day of
each calendar quarter, with the first such installment payable in the first
full calendar quarter commencing twenty-eight (28) days after the date on
which the Executive complies with Section 2(e)(i) and, if applicable,
Section 2(e)(ii) below, subject to applicable withholding and employment
taxes.
(e) Conditions to Receipt of Payments. As a condition to the Company's
obligation to pay the severance benefit hereunder, the Executive must
deliver to the Company the following:
(i) No later than thirty (30) days after the Termination Date, a
general release and acknowledgment in the form attached hereto as
Exhibit A (the "General Release"); and
(ii) An acknowledgement and agreement in a form reasonably
satisfactory to the Company that the noncompetition provisions of the
Nondisclosure and Noncompetition Agreement between the Executive and
the Company, in the form previously executed by the Executive, will be
effective for a period of one (1) year commencing on the Termination
Date, notwithstanding the fact that the Executive's employment with
the Company may have been terminated by the Company other than for
Cause; provided, however, that the foregoing acknowledgment and
agreement shall not be required if the Termination Date occurs within
eighteen (18) months following a Change of Control.
(f) Acknowledgements of the Executive. The Executive acknowledges and
agrees that:
(i) The provisions of Section 2(e) are reasonable and enforceable
because, among other things, (1) the Executive will be receiving
compensation under this Agreement and (2) there are many other areas
in which, and companies for which, the Executive could work in view of
the Executive's background, and Section 2(e) therefore does not impose
any undue hardship on the Executive;
(ii) The provisions of the Nondisclosure and Noncompetition
Agreement, including by way of its applicability hereunder in the
event of a termination of the Executive's employment without Cause,
are reasonable and enforceable in view of the Company's legitimate
interests in protecting its confidential information and customer
goodwill and the limitations contained therein on the duration and
geographic scope of, and activities covered by, such provisions; and
(iii) In deciding to sign this Agreement, the Executive has not
relied upon any statements or promises by the Company other than those
set forth in this Agreement, and the Executive understands that this
Agreement contains the entire agreement between the parties.
(g) Additional Agreements.
(i) The Executive represents that he or she has not, and agrees
that he or she will not, in any way disparage the Company or its
current and former officers, directors and employees, or make or
solicit any comments, statements, or the like to the media or to
others that may be considered to be derogatory or detrimental to the
good name or business reputation of any of the aforementioned parties
or entities;
(ii) The Executive further agrees that he or she will not at any
time discuss any matter concerning the Company with anyone adverse or
potentially adverse to the Company on any matter, including, without
limitation, employment claims or customer claims, without the prior
written consent of the Company. However, if
required by a governmental regulatory agency or self-regulatory agency
to provide testimony or information regarding the Company, the
Executive will cooperate with said regulatory agency. If compelled to
testify by a validly served subpoena or by regulatory authority, the
Executive will testify truthfully as to all matters concerning his or
her employment with the Company. If a regulatory agency or
self-regulatory agency contacts the Executive regarding the Company or
if the Executive receives a subpoena or other court or legal process
relating in any way to the Company, or any present or former Company
customer or employee, the Executive immediately will give the Company
prior written notice and shall make himself or herself available to be
interviewed concerning the subject matter of such contact; and
(iii) The Executive agrees to cooperate with and make himself or
herself readily available to the Company or its General Counsel, as
the Company may reasonably request, to assist it in any matter,
including litigation or proceedings or potential litigation or
proceedings, over which the Executive may have knowledge, information
or expertise, provided, however, that the Company shall pay the
reasonable out-of-pocket expenses of the Executive in performing his
or her obligations under this Section 2(g)(iii).
3. Notice of Termination
For purposes of this Agreement, any termination of the Executive's
employment by the Company as contemplated by Sections 2(a) or 2(b) hereof or by
the Executive as contemplated by Section 2(c) hereof shall be communicated by
written "Notice of Termination" to the other party hereto. Any "Notice of
Termination" shall set forth (a) the effective date of termination (for purposes
of determining the Executive's entitlement to benefits hereunder), which shall
not be less than fifteen (15) or more than thirty (30) days after the date the
Notice of Termination is delivered (the "Termination Date"); (b) the specific
provision in this Agreement relied upon; and (c) in reasonable detail the facts
and circumstances claimed to provide a basis for such termination.
Notwithstanding the foregoing, if within fifteen (15) days after any Notice of
Termination is given, the party receiving such Notice of Termination notifies
the other party that a good faith dispute exists concerning the termination, the
effective date of termination for purposes of determining the Executive's
entitlement to benefits under this Agreement shall be the date on which the
dispute is finally determined in accordance with the provisions of Section 12
hereof. In the case of any good faith dispute as to the Executive's entitlement
to benefits under this Agreement resulting from any termination by the Company
for which the Company does not deliver a Notice of Termination, the effective
date of termination for purposes of determining the Executive's entitlement to
benefits under this Agreement shall be the date on which the dispute is finally
determined in accordance with the provisions of Section 12 hereof. If the
parties do not dispute the Executive's entitlement to benefits hereunder, the
effective date of termination shall be the Termination Date.
4. Mitigation
The Executive is not required to seek other employment or otherwise
mitigate the amount of any payments to be made by the Company pursuant to this
Agreement; provided, however, that any amounts earned by the Executive from
employment with another employer prior to the final payment by the Company of
amounts payable hereunder will reduce any amounts or benefits due
the Executive pursuant to this Agreement on a dollar-for-dollar basis; provided,
further, however, that no such reduction shall be required or made in the event
the Termination Date occurs within eighteen (18) months following a Change in
Control.
5. Breach
In the event of a breach by the Executive of any of the Executive's
agreements in Section 2(e) or Section 2(g) hereof (including a breach of any
agreements in the General Release or in the Nondisclosure and Noncompetition
Agreement), the Executive shall pay to the Company all amounts previously paid,
allocated, accrued or provided by the Company to the Executive pursuant to this
Agreement and the Company shall be entitled to discontinue the future payment,
allocation, accrual or provision of any amounts or benefits under this
Agreement. The Executive recognizes and agrees that it is the intent of the
parties that neither this Agreement nor any of its provisions shall be construed
to adversely affect any rights or remedies that the Company would have had,
including, without limitation, the amount of any damages for which it could have
sought recovery, had this Agreement not been entered into. Without limiting the
generality of the foregoing, nothing in this Section 5 or any other provision of
this Agreement shall limit or otherwise affect the Company's right to seek legal
or equitable remedies it may otherwise have, or the amount of damages for which
it may seek recovery, resulting from or arising out of statutory or common law
or any Company policies relating to fiduciary duties, confidential information
or trade secrets.
6. Successors
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. For purposes of this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid.
(b) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, beneficiaries, devises and legatees. If the
Executive should die while any amounts are payable to him or her hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, beneficiary or
other designee or, if there be no such designee, to the Executive's estate.
7. Notices
For the purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given (i) on the date of delivery if delivered by hand, (ii) on
the date of transmission, if delivered by confirmed facsimile, (iii) on the
first business day following the date of deposit if delivered by guaranteed
overnight delivery service, or (iv) on the third business day following the date
delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Mark O. Johnson
c/o Express Scripts, Inc.
13900 Riverport Dr.
Maryland Heights, Missouri 63043
Attention: President
Facsimile: (314) 702-7099
If to the Company:
Express Scripts, Inc.
13900 Riverport Dr.
Maryland Heights, Missouri 63043
Attention: President
Facsimile: (314) 770-1581
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
8. Governing Law
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Missouri, without regard
to principles of conflicts of laws.
9. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which will constitute one and the
same instrument.
10. Non-Assignability
This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign, or transfer this Agreement or
any rights or obligations hereunder, except as provided in Section 6. Without
limiting the foregoing, the Executive's right to receive payments hereunder
shall not be assignable or transferable, whether by pledge, creation of a
security interest or otherwise, other than a transfer by his or her will or
trust or by the laws of descent or distribution, and in the event of any
attempted assignment or transfer contrary to this paragraph the Company shall
have no liability to pay any amount so attempted to be assigned or transferred.
11. Term of Agreement
This Agreement shall commence on the date hereof and shall continue in
effect through December 31, 1999; provided, however, that commencing on January
1 of 1999 and of each year thereafter, the term of this Agreement shall
automatically be extended for one additional year
unless, not later than September 30 of the preceding year, the Company or the
Executive shall have given notice to the other party that it does not wish to
extend this Agreement; provided further, if a Change in Control of the Company
shall have occurred during the original or any extended term of this Agreement,
this Agreement shall continue in effect for a period of twenty-four (24) months
beyond the month in which such Change in Control occurred; and, provided
further, that if the Company shall become obligated to make any payments or
provide any benefits pursuant to Section 2(c) or Section 2(d) hereof, this
Agreement shall continue in effect indefinitely.
12. Arbitration
(a) Scope; Initiation. Resolution of any and all disputes arising from or
in connection with this Agreement, whether based on contract, tort, statute or
otherwise, including disputes over arbitrability and disputes in connection with
claims by third persons ("Disputes") shall be exclusively governed by and
settled in accordance with the provisions of this Section 12; provided, that the
foregoing shall not preclude equitable or other judicial relief to enforce the
provisions hereof (including, without limitation, the provisions of the
Nondisclosure and Noncompetition Agreement and Section 2(g) hereof) or to
preserve the status quo pending resolutions of Disputes hereunder; and provided
further, that resolution of Disputes with respect to claims by third parties
shall be deferred until judicial proceedings with respect thereto are concluded.
Either party to this Agreement (each a "Party" and together the "Parties") may
commence proceedings hereunder by delivery of written notice providing a
reasonable description of the Dispute to the other, including a reference to
this Section (the "Dispute Notice").
(b) Negotiations Between Parties. The Parties shall first attempt in good
faith to resolve promptly any Dispute by good faith negotiations. Not later than
three (3) business days after delivery of the Dispute Notice, the Company shall
appoint an officer to meet with the Executive or his or her representative at a
reasonably acceptable time and place, and thereafter as such representatives
deem reasonably necessary. The Parties shall exchange relevant non-privileged
information and endeavor to resolve the Dispute. Prior to any such meeting, each
Party or representative shall advise the other as to any other individuals who
will attend such meeting. All negotiations pursuant to this Section 12(b) shall
be confidential and shall be treated as compromise negotiations for purposes of
Rule 408 of the Federal Rules of Evidence and similarly under other federal and
state rules of evidence.
(c) Binding Arbitration. The Parties hereby agree to submit all Disputes to
arbitration under the following provisions, which arbitration shall be final and
binding upon the Parties, their successors and assigns, and that the following
provisions constitute a binding arbitration clause under applicable law.
(i) Either Party may initiate arbitration of a Dispute by delivery of
a demand therefor (the "Arbitration Demand") to the other Party not sooner
than five (5) business days after the date of delivery of the Dispute
Notice but at any time thereafter.
(ii) The arbitration shall be conducted in the County of St. Louis,
Missouri, by three arbitrators (acting by majority vote, the "Panel")
selected by agreement of the Parties not later than ten (10) days after
delivery of the Arbitration Demand or, failing such agreement,
appointed pursuant to the Commercial Arbitration Rules of the American
Arbitration Association, as amended from time to time (the "AAA Rules"). If
an arbitrator becomes unable to serve, his or her successor(s) shall be
similarly selected or appointed.
(iii) The arbitration shall be conducted pursuant to the Federal
Arbitration Act and the Missouri Uniform Arbitration Act, such procedures
as the Parties may agree or, in the absence of or failing such agreement,
pursuant to the AAA Rules. Notwithstanding the foregoing: (w) each party
shall be allowed to conduct discovery through written requests for
information, document requests, requests for stipulations of fact, and
depositions; (x) the nature and extent of such discovery shall be
determined by the Panel, taking into account the needs of the Parties and
the desirability of making discovery expeditious and cost-effective; (y)
the Panel may issue orders to protect the confidentiality of information to
be disclosed in discovery; and (z) the Panel's discovery rulings may be
enforced in any court of competent jurisdiction.
(iv) All hearings shall be conducted on an expedited schedule, and all
proceedings shall be confidential. Either Party may at its expense make a
stenographic record thereof.
(v) The Panel shall complete all hearings not later than twenty (20)
days after selection or appointment, and shall make a final award not later
than ten (10) days thereafter. The award shall be in writing and shall
specify the factual and legal bases of the award. The Panel may assess all
or part of the costs and expenses of the arbitration, including the Panel's
fees and expenses and fees and expenses of experts and legal counsel
("Arbitration Costs") as it deems fair and reasonable and, in circumstances
where a Dispute has been asserted or defended against on grounds that the
Panel deems manifestly unreasonable or the non-prevailing Party has
rejected participation in procedures under Section 12(b), the Panel may
assess all Arbitration Costs against the non-prevailing Party and may
include in the award the Executive's and the Company's attorneys' fees and
expenses in connection with any and all proceedings under this Section 12.
Notwithstanding the foregoing, in no event may the Panel award multiple,
punitive or exemplary damages to either Party.
(d) Confidentiality - Notice. Each Party shall notify the other promptly,
and in any event prior to disclosure to any third person, if it receives any
request for access to confidential information or proceedings hereunder.
13. No Setoff
The Company shall have no right of setoff or counterclaim in respect of any
claim, debt or obligation against any payment provided for in this Agreement,
except to the extent provided in Section 4 hereof.
14. Non-Exclusivity of Rights
Nothing in this Agreement shall prevent or limit the Executive's continuing
or future participation in any benefit, bonus, incentive or other plan or
program provided by the Company or any of its subsidiaries or successors and for
which the Executive may qualify, nor shall anything
herein limit or reduce such rights as the Executive may have under any other
agreements with the Company or any of its subsidiaries or successors. Amounts
which are vested benefits or which the Executive is otherwise entitled to
receive under any plan or program of the Company or any of its subsidiaries
shall be payable in accordance with such plan or program, except as expressly
modified by this Agreement.
15. No Guaranteed Employment
The Executive and the Company acknowledge that this Agreement shall not
confer upon the Executive any right to continued employment and shall not
interfere with the right of the Company to terminate the employment of the
Executive at will, for any reason, and at any time, subject to the rights of the
Executive under any other agreement with the Company.
16. No Trust Created
Nothing contained in this Agreement and no action taken pursuant to the
provisions of this Agreement shall create or be construed to create a trust fund
of any kind. Any funds which may be set aside or provided for in this Agreement
shall continue for all purposes to be a part of the general funds of the Company
and no person other than the Company shall by virtue of the provisions of this
Agreement have any interest in such funds. To the extent that any person
acquires a right to receive payments from the Company under this Agreement, such
right shall be no greater than the right of any unsecured general creditor of
the Company.
17. Invalidity of Provisions
In the event that any provision of this Agreement is adjudicated to be
invalid or unenforceable under applicable law in any jurisdiction, the validity
or enforceability of the remaining provisions thereof shall be unaffected as to
such jurisdiction and such adjudication shall not affect the validity or
enforceability of such provision in any other jurisdiction. To the extent that
any provision of this Agreement is adjudicated to be invalid or unenforceable
because it is overbroad, that provision shall not be void but rather shall be
limited to the extent required by applicable law and enforced as so limited. The
parties expressly acknowledge and agree that this Section 17 is reasonable in
view of the Parties' respective interests.
18. Non-Waiver of Rights
The failure by the Company or the Executive to enforce at any time any of
the provisions of this Agreement or to require at any time performance by the
other party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of the Company or the Executive thereafter to
enforce each and every provision in accordance with the terms of this Agreement.
19. Miscellaneous
No provisions of this Agreement may be amended, modified, waived or
discharged unless such amendment, waiver, modification or discharge is agreed to
in writing signed by the Executive
and the Company. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. Section headings
contained herein are for convenience of reference only and shall not affect the
interpretation of this Agreement.
[The remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Severance Agreement to
be executed and delivered as of the day and year first above set forth.
PLEASE NOTE: BY SIGNING THIS SEVERANCE AGREEMENT, THE EXECUTIVE IS HEREBY
CERTIFYING THAT THE EXECUTIVE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR
REVIEW AND STUDY BEFORE EXECUTING IT, (B) HAS READ THIS AGREEMENT CAREFULLY
BEFORE SIGNING IT, (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE
AGREEMENT TO ASK ANY QUESTIONS THE EXECUTIVE HAS ABOUT THE AGREEMENT AND HAS
RECEIVED SATISFACTORY ANSWERS TO ALL SUCH QUESTIONS, (D) UNDERSTANDS THE
EXECUTIVE'S RIGHTS AND OBLIGATIONS UNDER THE AGREEMENT, (E) UNDERSTANDS THAT,
AMONG OTHER THINGS, THE NONDISCLOSURE AND NONCOMPETITION AGREEMENT EXTENDED BY
THIS AGREEMENT PROHIBITS THE EXECUTIVE FROM DISCLOSING ANY COMPANY PROPRIETARY
OR CONFIDENTIAL INFORMATION AND PLACES RESTRICTIONS ON HIS OR HER ABILITY TO
ENGAGE IN EMPLOYMENT AND ACTIVITIES COMPETITIVE WITH THE COMPANY'S BUSINESS AND
(F) UNDERSTANDS THAT THIS AGREEMENT IN SECTION 12 INCLUDES A BINDING ARBITRATION
PROVISION.
THIS AGREEMENT IN SECTION 12 CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
EXPRESS SCRIPTS, INC.
By: /s/ Barrett A. Toan
-----------------------------------------
Barrett A. Toan
President and Chief Executive Officer
EXECUTIVE:
/s/ Mark O. Johnson
-------------------------------------------
Mark O. Johnson
The undersigned hereby acknowledges receiving a copy of this fully
executed Agreement for his or her records.
/s/ Mark O. Johnson
-------------------------------------------
Mark O. Johnson
EXHIBIT A
GENERAL RELEASE AND ACKNOWLEDGEMENT
THIS GENERAL RELEASE AND ACKNOWLEDGEMENT is made this ___ day of ________,
____, by ______________ (the "Executive") in favor of Express Scripts, Inc. (the
"Company") pursuant to Section 2(e) of the Severance Agreement dated as of
_________, ____ (the "Agreement"). Unless otherwise defined herein, capitalized
terms appearing herein shall have the meanings given to them in the Agreement.
1. General Release of Claims. The Executive, for and on behalf of the
Executive and the Executive's heirs, beneficiaries, executors, administrators,
successors, assigns, and anyone claiming through or under any of the foregoing,
hereby agrees to, and does, release and forever discharge the Company, and its
agents, officers, employees, successors and assigns, from any and all matters,
claims, demands, damages, causes of action, debts, liabilities, controversies,
judgments and suits of every kind and nature whatsoever, foreseen or unforeseen,
known or unknown, arising out of or relating to any matter whatsoever,
including, without limitation, the Executive's termination from employment with
the Company, matters arising from the offer and acceptance of the Agreement,
matters relating to employment references or lack thereof from the Company, and
those claims described in paragraph 3 hereof.
2. Agreement Not to File Suit. The Executive, for and on behalf of the
Executive and the Executive's beneficiaries, executors, administrators,
successors, assigns, and anyone claiming through or under any of the foregoing,
agrees that he or she will not file or otherwise submit any charge, claim,
complaint, or action to any agency, court, organization, or judicial forum (nor
will the Executive permit any person, group of persons, or organization to take
such action on the Executive's behalf) against the Company arising out of any
actions or non-actions on the part of the Company prior to or as of the date
hereof arising out of or relating to any matter whatsoever. The Executive
further agrees that in the event that any person or entity should bring such a
charge, claim, complaint, or action on the Executive's behalf, the Executive
hereby waives and forfeits any right to recovery under said claim and will
exercise every good faith effort (but will not be obliged to incur any expense)
to have such claim dismissed.
3. Claims Covered. The charges, claims, complaints, matters, demands,
damages, and causes of action referenced in paragraphs 1 and 2 above include,
but are not limited to, (i) any breach of an actual or implied contract of
employment between the Executive and the Company, (ii) any claim of unjust,
wrongful, or tortious discharge (including any claim of fraud, negligence,
retaliation for whistleblowing, or intentional infliction of emotional
distress), (iii) any claim of defamation or other common-law action, (iv) any
claims of violations arising under the Civil Rights Act of 1964, as amended, 42
U.S.C.ss.2000e et seq., the Age Discrimination in Employment Act, ------ 29
U.S.C.ss.621 et seq., the Americans with Disabilities Act of 1990, 42
U.S.C.ss.12101 et seq., the Fair Labor ------ Standards Act of 1938, as amended,
29 U.S.C.ss.201 et seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C.
- ------ ss.701 et seq., or of the Illinois Human Rights Act, 775 ILCS 5/1-101 et
seq., or any other relevant federal, state, or ------ ------ local statutes or
ordinances, (v) any claims for salary, bonus
pay or severance pay other than those payments and benefits specifically
provided in the Agreement, or (vi) any other matter whatsoever, whether related
or unrelated to employment matters.
4. Claims Excluded. Notwithstanding anything else herein to the contrary,
this General Release and Acknowledgment (the "General Release") shall not:
(i) apply to the obligations of the Company described in Sections 2(c),
2(d), 6 and 12 of the Agreement; or
(ii) affect, alter or extinguish any vested rights that the Executive may
have with respect to any benefits, rights or entitlements under the terms
of any employee benefit programs of the Company to which the Executive is
or will be entitled by virtue of his or her employment with the Company or
any of its subsidiaries, and nothing in this General Release will prohibit
or be deemed to restrict the Executive from enforcing his or her rights to
any such benefits, rights or entitlements; or
(iii) limit the Executive's right to indemnification to the extent provided
in the Company's Certificate of Incorporation and/or bylaws.
5. Acknowledgments By signing this General Release and Acknowledgment (the
"General Release"), the Executive is hereby certifying that the Executive (a)
has received a copy of the Agreement and the General Release for review and
study before executing it, (b) has read the Agreement and the General Release
carefully before signing this General Release, (c) has had sufficient
opportunity before signing this General Release to ask any questions the
Executive has about the Agreement or this General Release and has received
satisfactory answers to all such questions, (d) understands the Executive's
rights and obligations under the Agreement and this General Release, (e)
acknowledges and reaffirms the provisions of Section 2(f) of the Agreement, (f)
understands that the Agreement includes a binding arbitration provision, and (g)
understands that the Agreement and the General Release are legal documents, and
that by signing the Agreement and the General Release the Executive is giving up
certain legal rights including but not limited to rights under the Age
Discrimination in Employment Act, 29 U.S.C. ss. 621 et seq. and the other
matters covered in Section 3 hereof. The Executive also acknowledges that he or
she has been given at least twenty-one (21) days to consider this General
Release and that he or she has been advised to consult with an attorney about
its terms. If the Executive has executed this General Release prior to the
expiration of the twenty-one (21) day period specified above, the Executive
acknowledges and agrees that he or she was afforded the opportunity to consider
the Agreement for twenty-one (21) days before executing it and that the
Executive's execution of this Agreement prior to the expiration of such
twenty-one (21) day period was his or her free and voluntary act. The Executive
further understands that he or she may revoke this General Release within seven
(7) days after he or she signs it and that if the Executive does not revoke this
General Release within that time, this General Release becomes effective and
enforceable by both parties immediately after the expiration of such seven-day
period. The Executive also understands that any revocation must be in writing
and must be received by the Company no later than the close of business on the
seventh day after his or her execution of this General Release. The Company has
given the Executive enough time to consult
with his or her family and other advisers and to consider whether he or she
should agree to the terms of this General Release.
6. Governing Law. The validity, interpretation, construction and
performance of this General Release shall be governed by the laws of the State
of Missouri, without regard to principles of conflicts of laws.
IN WITNESS WHEREOF, the undersigned has caused this General Release to
be executed and delivered as of the day and year first above set forth.
THE AGREEMENT IN SECTION 12 CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
EXECUTIVE:
------------------------------------------
Mark O. Johnson