EXHIBIT 10
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT ("Agreement"), dated as of October 23,
1998, is entered into by and between BINDLEY WESTERN INDUSTRIES, INC., an
Indiana corporation ("BWI") and PRIORITY HEALTHCARE CORPORATION, an Indiana
corporation ("PHC").
RECITALS
WHEREAS, PHC is presently a majority-owned subsidiary of BWI; and
WHEREAS, BWI has determined that it is in the best interest of BWI to
distribute to the holders of BWI Common Stock all of the 10,214,286 shares
of PHC Class A Common Stock owned by BWI (the "Distribution"); and
WHEREAS, it is the intention of BWI that, following the Distribution,
BWI shall own no shares of PHC common stock; and
WHEREAS, in connection with the initial public offering of PHC in
1997, BWI and PHC entered into the Tax Sharing Agreement, the
Administrative Services Agreement, the Indemnification and Hold Harmless
Agreement and certain other agreements (collectively, the "Ancillary
Agreements"); and
WHEREAS, the Parties have determined that it is necessary and
desirable to set forth certain understandings and agreements in connection
with the Distribution;
NOW THEREFORE, in consideration of the foregoing premises and the
mutual agreements, provisions and covenants contained in this Agreement,
the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following meanings:
"Action" means any claim, suit, action, litigation, arbitration,
inquiry, subpoena, discovery request, proceeding, investigation, dispute,
violation or citation (or any threat of any of the foregoing), whenever,
however and wherever initiated, however, whenever and wherever arising, and
however denominated.
"Affiliate" means, with respect to any entity, another entity directly
or indirectly controlling, controlled by or under common control with such
entity.
"BWI Business" means the BWI Group together with the business, assets,
liabilities, operations, occupancies and employee benefit and other plans
of the BWI Group.
"BWI Common Stock" means the Common Stock, $0.01 par value, of BWI.
"BWI Group" means BWI and its Affiliates other than the PHC Group.
"BWI Stock Option Plan" means the 1993 Stock Option and Incentive Plan
of BWI.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Class A Common Stock" means the Class A Common Stock, $0.01 par
value, of PHC.
"Class B Common Stock" means the Class B Common Stock, $0.01 par
value, of PHC, into which the Class A Common Stock is convertible on a
share-for-share basis.
"Commission" means the Securities and Exchange Commission.
"Distribution Agent" means Harris Trust and Savings Bank.
"Distribution Date" means the business day as of which the
Distribution shall be effective, as determined by the board of directors of
BWI.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executives" means current and former directors, officers and
employees, including any current and former in-house professionals (such as
accountants, lawyers, tax advisors, pension or other plan administrators,
and similar and dissimilar professionals).
"Form 8-A" means the Registration Statement on Form 8-A filed by PHC
with the Commission to effect the registration of the PHC Class A Common
Stock pursuant to the Exchange Act, as such registration statement may be
amended from time to time.
"Information Statement" means the short form information statement to
be sent to each holder of BWI Common Stock in connection with the
Distribution.
"Losses" means any and all losses, liabilities, claims, damages
(including exemplary and punitive damages), judgments, awards, fines,
penalties, obligations, payments, costs and expenses, including, without
limitation, the costs and expenses of any and all Actions, demands,
assessments, judgments, settlements, and compromises relating thereto and
reasonable attorney fees (including in-house counsel costs) and other legal
expenses in connection therewith.
"Parties" means BWI and PHC, and Party means BWI or PHC as the context
requires.
"PHC Business" means the PHC Group together with the business, assets,
liabilities, operations, occupancies and employee benefit and other plans
of the PHC Group.
"PHC Common Stock" means Class A Common Stock and Class B Common
Stock, collectively.
"PHC Group" means PHC and its direct and indirect subsidiaries as of
the Distribution Date.
"PHC Stock Option Plan" means the 1997 Stock Option and Incentive Plan
of PHC.
"Record Date" means the date in 1998 determined by BWI's board of
directors as the record date for determining the holders of BWI Common
Stock entitled to receive PHC Class A Common Stock in connection with the
Distribution.
ARTICLE II
THE DISTRIBUTION
Section 2.1. INFORMATION STATEMENT AND FORM 8-A. BWI and PHC shall
prepare, and BWI shall mail to the holders of BWI Common Stock as of the
Record Date, the Information Statement which shall set forth appropriate
disclosure concerning PHC, the Distribution and any other appropriate
matters. PHC shall also prepare, and PHC shall file with the Commission,
the Form 8-A; provided, however, that nothing contained in this Agreement
shall create an obligation for BWI to complete the Distribution, it being
understood that BWI, in its sole discretion, will decide if and when the
Distribution shall occur.
Section 2.2. COOPERATION. BWI and PHC shall cooperate in preparing,
filing with the Commission and causing to become effective any registration
statements or amendments thereto that are appropriate to reflect the
establishment of or amendments to any BWI or PHC employee benefit and other
plans.
Section 2.3. BLUE SKY LAWS. BWI and PHC shall take all such action
as may be necessary or appropriate under the securities or blue sky laws of
states or other political subdivisions of the United States in connection
with the transactions contemplated by this Agreement.
Section 2.4. RECORD DATE AND DISTRIBUTION DATE. BWI's board of
directors may, in its discretion, establish the Record Date and the
Distribution Date and any appropriate procedures in connection with the
Distribution. In no event shall the Distribution occur unless the
following conditions shall, unless waived by BWI, have been satisfied:
(a) all necessary regulatory approvals to be obtained by BWI or PHC
shall have been received;
(b) the Form 8-A shall have become effective under the Exchange
Act;
(c) BWI's board of directors shall have formally approved the
Distribution and shall not have abandoned, deferred or modified the
Distribution at any time prior to the Record Date;
(d) there shall have been no adverse change in the financial
condition of either BWI or PHC from the date hereof;
(e) there shall have been no adverse change in market conditions
from the date hereof; and
(f) BWI shall have received an opinion that the Distribution
will qualify as a tax-free spinoff under Section 355 of the Code.
Section 2.5. DELIVERY OF CERTIFICATES. On the Distribution Date,
subject to the conditions set forth in this Agreement, BWI shall deliver to
the Distribution Agent a certificate or certificates representing all of
the then outstanding shares of PHC Class A Common Stock held by BWI,
endorsed in blank, and shall instruct the Distribution Agent to distribute
to each holder of record of BWI Common Stock on the Record Date a
certificate or certificates representing such holder of record's allotted
share(s) of PHC Class A Common Stock as determined by BWI's board of
directors. PHC agrees to provide all certificates for shares of PHC Class
A Common Stock that the Distribution Agent shall require in order to effect
the Distribution.
Section 2.6. FRACTIONAL SHARES. No certificates or scrips
representing any fractional shares of PHC Class A Common Stock will be
issued to holders of BWI Common Stock as part of the Distribution. In lieu
of receiving fractional shares, each holder of BWI Common Stock who would
otherwise be entitled to receive a fractional share of PHC Class A Common
Stock pursuant to the Distribution will receive cash for such fractional
share. PHC and BWI agree that BWI shall instruct the Distribution Agent to
determine the number of whole shares and fractional shares of PHC Class A
Common Stock allocable to each holder of record of BWI Common Stock as of
the Record Date, to aggregate all such fractional shares into whole shares
and to sell the whole shares thereby obtained in the open market at then
prevailing prices on behalf of holders who otherwise would be entitled to
receive fractional share interests and to distribute to each such holder
such holder's ratable share of the net proceeds of such sale.
Section 2.7. FEES OF DISTRIBUTION AGENT. The fees and expenses of
the Distribution Agent shall be paid by BWI.
Section 2.8STOCK OPTION PLANS.
(a) With respect to any options held by PHC employees that were
granted under the BWI Stock Option Plan ("BWI Options"), the
Distribution will constitute a termination of employment from BWI
without cause. Each BWI Option held by a PHC employee which is
exercisable on and not exercised prior to the Distribution Date and
with respect to which the holder has not elected prior to the
Distribution Date to surrender in exchange for an option under the
PHC Stock Option Plan ("Priority Option") shall remain outstanding
and shall be exercisable only within a period of three months after
the Distribution Date according to its terms and the terms of the BWI
Stock Option Plan. The number of shares of BWI Common Stock subject
to, and the exercise price of such BWI Option after the Distribution
Date shall be determined in accordance with the requirements of
Section 424 of the Code and the regulations promulgated thereunder.
The exercise price of any such BWI Option shall be rounded to the
nearest $.01; the number of shares subject to any such BWI Option
shall be rounded to the nearest whole share; the aggregate Spread of
such BWI Option immediately after the Distribution Date shall be
equal to the Spread of such BWI Option immediately before the
Distribution Date. "Spread" means, as of the same date, the excess
of the fair market value of the shares subject to the option over the
aggregate option price.
(b) BWI and PHC shall cooperate and take all action necessary so
that as of the Distribution Date, each BWI Option held by a PHC
employee and which is either (i) exercisable on, and not exercised on
or prior to, the Distribution Date, or (ii) not exercisable on or
prior to the Distribution Date, and with respect to which the holder
has elected prior to the Distribution Date to surrender in exchange
for a Priority Option, shall both, without any action on the part of
the holder thereof, be considered to be surrendered to BWI in
exchange for a Priority Option. The number of shares of PHC Class B
Common Stock subject to and the exercise price of such Priority
Option shall be determined in accordance with the requirements of
Section 424 of the Code and the regulations promulgated thereunder.
The exercise price of any such Priority Option shall be rounded to
the nearest $.01; the number of shares subject to any such option
shall be rounded to the nearest whole share; the aggregate Spread of
such Priority Option immediately after the Distribution Date shall be
equal to the Spread of the BWI Option surrendered for it immediately
before the Distribution Date; and such Priority Option shall be
granted under the PHC Stock Option Plan with an outstanding exercise
period and vesting schedule which is the same as the exercise period
and vesting schedule of the BWI Option surrendered for it.
Section 2.9. PROFIT SHARING PLANS.
(a) After the Distribution Date, employees of PHC will no longer be
eligible to participate in the qualified profit sharing plan
maintained by BWI ("BWI Profit Sharing Plan"). On or before the
Distribution Date, PHC shall establish a similar profit sharing plan
("PHC Profit Sharing Plan"), including a 401(k) feature and a PHC
Common Stock Fund, in lieu of a BWI Common Stock Fund. The PHC
Profit Sharing Plan shall also provide for a BWI Common Stock Fund
into which any BWI Common Stock held by PHC employees under the BWI
Profit Sharing Plan shall be transferred, but no further investments
in BWI Common Stock may be made under the PHC Profit Sharing Plan.
(b) BWI shall also amend the BWI Profit Sharing Plan before the
Distribution Date to provide for a PHC Common Stock Fund into which
the PHC Class A Common Stock received as a distribution from BWI on
the BWI Common Stock held by the BWI Profit Sharing Plan shall be
placed. No further investments in PHC Common Stock may be made by
participants in the BWI Profit Sharing Plan.
(c) On or promptly after the Distribution Date, all assets in the
BWI Profit Sharing Plan relating to PHC employees shall be
transferred to the PHC Profit Sharing Plan and BWI and the BWI Profit
Sharing Plan shall have no further obligations or liabilities to such
PHC employees.
Section 2.10. TAX COVENANTS. After the Distribution Date neither BWI
or any member of the BWI Group nor PHC or any member of the PHC Group,
shall take any action, or permit any action to be taken, which could
reasonably be expected to prevent the Distribution from qualifying as a
tax-free distribution under Section 355 of the Code.
ARTICLE III
ASSUMPTION, INDEMNITY AND RELEASE
Section 3.1. INDEMNITIES.
(a) COMPREHENSIVE OBLIGATIONS, CLAIMS AND LIABILITIES. PHC, on its
behalf and on behalf of the PHC Group, does hereby assume and agree
to pay, perform and discharge all obligations, liabilities and Losses
in any way arising out of or relating to the PHC Business (whether
known or unknown, absolute, contingent or otherwise, matured or not
matured, accrued or unaccrued, of whatever nature and whenever
arising and regardless of when discovered, and including contingent
liabilities and obligations as have accrued or will accrue to the BWI
Group relating to the past, present or future PHC Business), or to
acts or events occurring or conditions existing with respect to the
PHC Business, whether before, on or after the Distribution Date,
including without limitation (a) all contracts, agreements,
commitments, undertakings, notes, letters of credit, bonds,
guarantees, warranties, indemnities, accounts payable, purchase
orders, leases, licenses, liens, mortgages, restrictions and
covenants, (b) all employee or employment related obligations and
liabilities, (c) all environmental conditions and responsibilities
(including without limitation hazardous and toxic waste and
material), and (d) all Actions, including those relating to damage or
injury to person, property, business or reputation (all of the
foregoing collectively the "Assumed Liabilities"); PROVIDED, HOWEVER,
that the Assumed Liabilities do not include the obligations of BWI
pursuant, and subject to the provisions of, the Ancillary Agreements.
The PHC Group's obligations with respect to the Assumed Liabilities
shall be unconditional and primary and shall be without regard to,
and shall not be offset or limited by, any reserves that are or may
have been recorded on the books of the BWI Group or the PHC Group.
(b) INDEMNITIES AGAINST ASSUMED LIABILITIES. The PHC Group shall
jointly and severally indemnify, protect, defend and hold harmless
the BWI Group and each of its successors, assigns, officers,
directors, employees and benefit plans, including ERISA plans (each,
an "Indemnified Person" and, where the context so requires, an
"Indemnified BWI Person") from and against any and all Assumed
Liabilities, regardless of any negligence of the Indemnified Person
that might have given rise or contributed thereto, and shall
reimburse to such Indemnified Person all costs reasonably incurred by
such Indemnified Person on account of the Assumed Liabilities.
(c) EMPLOYEE OBLIGATIONS AND INDEMNITIES. Without limiting Section
3.1(a) or (b), the PHC Group jointly and severally agrees to pay all
amounts due to its employees under any employment contract,
arrangement or other employment agreement, payroll practice or
employee benefit plan and to make no changes or amendments to any
employee benefit plan after the date of the Distribution which would
diminish the vested interest of any employee with respect to such
benefit plan. Further, the PHC Group jointly and severally agrees to
indemnify, protect, defend and hold harmless the BWI Group against
all Actions by employees with respect to amounts due to PHC Group
employees under any employment contract, arrangement or other
employee agreement, benefit plan or payroll practice.
(d) BWI INDEMNITIES. BWI, on its behalf and on behalf of the BWI
Group, shall indemnify, protect, defend and hold harmless PHC and the
PHC Group against all Losses in any way arising out of the BWI
Business, whether before, on or after the Distribution Date, other
than the Assumed Liabilities.
Section 3.2. SECURITIES INDEMNITY.
(a) BY PHC. PHC shall indemnify, protect, defend and hold harmless
each Indemnified BWI Person (and shall reimburse such Indemnified BWI
Person for all costs and expenses reasonably incurred) with respect
to any and all Losses of such Indemnified BWI Person arising out of
or due to, directly or indirectly, any claim that the information
provided by the PHC Group and included in the Information Statement
or the Form 8-A, is false and misleading with respect to any material
fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
or any failure to perform or violation of any provision of this
Agreement by the PHC Group.
(b) BY BWI. BWI shall indemnify, protect, defend and hold harmless
the PHC Group and each of its successors, assigns, officers,
directors, employees and benefit plans, including ERISA plans (each,
an "Indemnified Person" and, where the context so requires, an
"Indemnified PHC Person") (and shall reimburse such Indemnified PHC
Person for all costs and expenses reasonably incurred) with respect
to any and all Losses of such Indemnified PHC Person arising out of
or due to, directly or indirectly, any claim that the information
provided by the BWI Group and included in the Information Statement
or the Form 8-A, is false and misleading with respect to any material
fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
or any failure to perform or violation of any provision of this
Agreement by the BWI Group; PROVIDED, HOWEVER, that under no
circumstance shall BWI be required to indemnify any Indemnified PHC
Person where the information at issue (or the data from which such
information was derived) was supplied to the BWI Group by the PHC
Group or an Indemnified PHC Person.
Section 3.3. PROCEDURES.
(a) In order for an Indemnified Person to be entitled to the
benefits of Section 3.1(b), Section 3.1(c) or Section 3.2 with
respect to a claim by a third party ("Third Party Claim"), such
Indemnified Person shall notify the indemnitor promptly after receipt
by such Indemnified Person of notice of the Third Party Claim;
PROVIDED, HOWEVER, that failure to give such notification shall not
affect the indemnification provided hereunder except to the extent
that the indemnitor shall have been actually prejudiced as a result
of such failure. Thereafter, the Indemnified Person shall deliver to
the indemnitor promptly after the Indemnified Person's receipt
thereof, copies of all notices and documents (including court papers)
received by the Indemnified Person with respect to the Third Party
Claim.
(b) If a Third Party Claim is made against an Indemnified Person,
the indemnitor shall defend and shall have the right to compromise,
at its own expense, the Third Party Claim. The Indemnified Person
will cooperate, at the expense of the indemnitor in connection with
such defense. Such cooperation shall include the retention and, upon
the indemnitor's request, the provision to the indemnitor of records,
compilations and information which are, in the indemnitor's
reasonable opinion, relevant to such Third Party Claim, access to
premises and making employees available on a mutually convenient
basis to be interviewed, to testify and to provide additional
information and explanation of any material provided. The
Indemnified Person shall have the right, at its own expense, to
participate in the defense of a Third Party Claim. In no event shall
an Indemnified Person compromise a Third Party Claim without the
reasonable consent of the indemnitor. The indemnitor shall not,
without the reasonable consent of the Indemnified Person, compromise,
or refuse to compromise, a Third Party Claim which seeks or provides
for equitable relief or otherwise affects the operations or the
contingent liabilities of the Indemnified Person.
Section 3.4. ANCILLARY AGREEMENTS. Nothing in this Agreement shall
be construed to limit in any way the terms of any Ancillary Agreement.
Section 3.5. INTENT. By way of amplification and not limitation, the
intent of the Parties, as between themselves, is that, subject to the
Ancillary Agreements and the releases and waivers contained in Section 3.6
of this Agreement, (a) the PHC Group and the BWI Group shall be considered
as if they had never been Affiliates, (b) all actions, by whomsoever taken
or omitted, relating to the PHC Business on or prior to the Distribution
Date shall be deemed taken or omitted by the PHC Group, and all actions by
whomsoever taken or omitted, relating to the BWI Business on or prior to
the Distribution Date shall be deemed taken or omitted by the BWI Group,
and (c) the PHC Group shall indemnify, protect, defend and hold harmless
the BWI Group from all liabilities relating to the PHC Business accruing
before, on or after the Distribution Date, and the BWI Group shall
indemnify, protect, defend and hold harmless the PHC Group from all
liabilities relating to the BWI Business accruing before, on or after the
Distribution Date.
Section 3.6. RELEASE AND WAIVER.
(a) BY THE BWI GROUP. BWI, on its behalf and on behalf of the BWI
Group, does hereby waive irrevocably in favor of, release, remise,
acquit, forever discharge, and shall forever be barred from asserting
against, the PHC Group and the PHC Executives all, of all and from
all Actions and Losses that the BWI Group may have or claims to have
against the PHC Group or the PHC Executives, for events, acts or
omissions occurring or taken on or prior to the Distribution Date,
including, without limitation, errors, omissions, malpractice, breach
of fiduciary duty, ultra vires acts and other similar or dissimilar
acts or omissions which have been, could be or might be asserted by
the BWI Group against the PHC Group or any PHC Executives for acts or
omissions in the conduct of affairs for, or advice or counsel to, the
BWI Group on or prior to the Distribution Date. Nothing contained in
this Section 3.6(a) shall apply to, or limit the scope of, Section
3.1 or Section 3.2(a) hereof.
(b) BY THE PHC GROUP. PHC, on its behalf and on behalf of the PHC
Group, does hereby waive irrevocably in favor of, release, remise,
acquit, forever discharge, and shall forever be barred from asserting
against, the BWI Group and the BWI Executives all, of all and from
all Actions and Losses that the PHC Group may have or claims to have
against the BWI Group or the BWI Executives, for events, acts or
omissions occurring or taken on or prior to the Distribution Date,
including, without limitation, errors, omissions, malpractice, breach
of fiduciary duty, ultra vires acts and other similar or dissimilar
acts or omissions which have been, could be or might be asserted by
the PHC Group against the BWI Group or any BWI Executives for acts or
omissions in the conduct of affairs for, or advice or counsel to, the
PHC Group on or prior to the Distribution Date. Nothing contained in
this Section 3.6(b) shall apply to, or limit the scope of, Section
3.2(b) hereof.
ARTICLE IV
MISCELLANEOUS
Section 4.1. DIFFERING FACTS. It is understood and agreed by and
between PHC and BWI that the facts and assumptions in respect of which this
Agreement is made may hereafter prove to be other than or different from
the facts and assumptions now known or made by either of them, or believed
by either of them to be true. Each of PHC and BWI expressly accepts and
assumes the risk of the facts and assumptions proving to be different, and
each of them agrees that all the terms and conditions of this Agreement
shall be in all respects effective and not subject to termination or
rescission by any such difference in facts or assumptions.
Section 4.2. DUE INQUIRY. Each of PHC and BWI represents and
warrants to the other that it (a) has made due and diligent inquiry into
the facts and matters which are the subject matter of this Agreement; (b)
fully understands the legal effect of this Agreement; and (c) is duly
authorized and empowered to execute, deliver and perform this Agreement
according to its terms and conditions.
Section 4.3. NON-RECOURSE. BWI makes no (and specifically disclaims
all) representations and warranties whatsoever, including without
limitation that there are any rights or interests associated with the PHC
Business or the Assumed Liabilities. The PHC Group shall have no recourse
whatsoever, and hereby waives all recourse, against the BWI Group and the
BWI Executives in connection with, arising from or relating to the PHC
Business or the Assumed Liabilities.
Section 4.4. GOVERNING LAW; SUBMISSION TO JURISDICTION; INJUNCTION;
ARBITRATION. This Agreement shall be deemed an agreement and contract made
under the laws of the State of Indiana and all matters arising under,
growing out of, or in connection with this Agreement shall, for all
purposes, be governed by, and construed in accordance with, the laws of the
State of Indiana, without giving effect to such State's conflict of laws
rules or principles.
The Parties agree that any action for injunction or specific
performance between them arising out of or in connection with this
Agreement shall be brought only in, and tried by the United States District
Court for the Southern District of Indiana or, absent subject matter
jurisdiction by such Federal Court, in the Circuit Court of Marion County,
Indiana and BWI and PHC each hereby submit to the personal jurisdiction of
such courts for such purpose.
The Parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the Parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in the courts and
as provided above in this section, such injunctive relief being in addition
to any other remedy to which such Party is entitled at law or in equity.
Notwithstanding any other provision of this Agreement to the contrary,
the Parties agree that any and all disputes with respect to any claim for
indemnification pursuant to the provisions of Article III of this
Agreement, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association by a
panel of three arbitrators appointed pursuant to such Rules, and judgment
upon the award rendered by such arbitrators may be entered in any court
having jurisdiction. Such arbitrators shall not have the authority or
power to reform, alter, amend or modify any of the terms or conditions of
this Agreement or to enter an award which reforms, alters, amends or
modifies such terms or conditions. The decision of such arbitrators shall
be in writing, setting forth both findings of fact and of law, and shall be
final and conclusive upon the Parties; and no suit at law or in equity
based on such dispute, controversy or claim shall be instituted by any
Party hereto, other than to enforce the award of such arbitrators. Such
arbitration shall be conducted in Indianapolis, Indiana, or in such other
location as the Parties may agree.
In the event of a dispute, the prevailing Party shall be entitled to
be reimbursed by the nonprevailing Party for such prevailing Party's
reasonable attorney's fees and other expenses.
The Parties agree that as a precondition to the commencement of
arbitration by any Party, the dispute must be submitted to non-binding
mediation with a mediator agreed to by both Parties. If the Parties cannot
agree on a mediator within 14 days from the date of a request for
mediation, the dispute will be mediated by a person selected in accordance
with the rules of the American Arbitration Association.
Section 4.5. THIRD PARTY BENEFICIARIES. Except for each Indemnified
Person and the PHC and BWI Executives, all of which are intended
beneficiaries of the provisions of this Agreement referring to them,
neither this Agreement nor any provision hereof shall inure to the benefit
of any person or entity other than the PHC Group and the BWI Group.
Section 4.6. SEVERABILITY. The provisions of this Agreement shall be
severable if any of the provisions herein (including any provisions within
a single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent
permitted by law. To the extent feasible, any provision held invalid, void
or unenforceable shall be reformed so as to make it valid and enforceable
and to reflect as nearly as possible the intent of the Parties (including
that set forth in Section 3.5 hereof).
Section 4.7. ENTIRETY OF AGREEMENT. This Agreement constitutes the
entire understanding of the Parties with respect to the subject matter
hereof, superseding all negotiations, prior discussions and prior
agreements and understandings relating to such subject matter. This
Agreement does not govern the Ancillary Agreements.
Section 4.8. AMENDMENT AND WAIVER. This Agreement may not be altered
or amended except by an instrument in writing executed by the Party or
Parties to be charged with such amendment. No term or provision of this
Agreement shall be deemed waived and no breach excused, unless such waiver
or consent is in writing and signed by the Party claimed to have waived or
consented. No waiver shall constitute a continuing waiver, and no waiver
of a provision shall be deemed or construed to constitute a waiver of any
other provision whether similar or not.
Section 4.9. ASSIGNMENT/DELEGATION. Neither Party hereto may assign
its rights or delegate any of its duties under this Agreement without the
prior written consent of the other Party. This Agreement shall be binding
upon, and shall inure to the benefit of, the Parties hereto and their
respective successors and permitted assigns.
Section 4.10. NOTICES. All notices and other communications
hereunder shall be in writing and delivered by hand, by facsimile, by
United States Postal Service, postage prepaid, registered or certified mail
(return receipt requested) or by reputable overnight courier service
(charges paid by sender, next business day delivery and delivery
verification requested) and shall be deemed given (a) when delivered by
hand, (b) when transmitted by facsimile (with either (i) receipt confirmed
or (ii) hard copy deposited within one business day of such transmission
with a reputable overnight courier service as above provided), (c) three
business days after mailing if mailed through the United States Postal
Service as above provided, or (d) one business day after depositing with a
reputable overnight courier service as above provided, in each case
addressed to the Parties as follows:
(a) if to BWI:
Bindley Western Industries, Inc.
8909 Purdue Road
Indianapolis, IN 46268
Attention: President
Facsimile: (317) 704-4603
(b) if to PHC:
Priority Healthcare Corporation
285 West Central Parkway
Altamonte Springs, FL 32714
Attention: President
Facsimile: (407) 869-4978
subject to the right of each Party to designate a different address in the
United States and/or addressee by notice similarly given at least 15 days
before the effectiveness of such new designation.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed by their respective officers, each of whom is duly authorized
as of the date first written above.
BINDLEY WESTERN INDUSTRIES, INC.
By: /S/ WILLIAM E. BINDLEY
William E. Bindley
President and Chief Executive Officer
PRIORITY HEALTHCARE CORPORATION
By: /S/ ROBERT L. MYERS
Robert L. Myers
President and Chief Executive Officer