EXHIBIT 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of September 1, 2002, by and among
ACCREDO HEALTH, INCORPORATED, a Delaware corporation (the "Company"), and KYLE
J. CALLAHAN (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive for the period
provided in this Agreement, and the Executive is willing to accept such
employment with the Company on a full-time basis, all in accordance with the
terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the premises hereof and the
mutual covenants contained herein, the parties hereto hereby covenant and agree
as follows:
1. Employment.
(a) The Company hereby employs the Executive, and the
Executive hereby accepts such employment with the
Company, for the period set forth in Section 2
hereof, all upon the terms and conditions hereinafter
set forth.
(b) The Executive affirms and represents that he is under
no other obligation to any former employer or other
party which is in any way inconsistent with, or which
imposes any restriction upon, the Executive's
acceptance of employment hereunder with the Company,
the employment of the Executive by the Company, or
the Executive's undertakings under this Agreement.
2. Term of Employment. Unless earlier terminated as hereinafter
provided, the term of the Executive's employment under this Agreement shall
initially be for a period beginning on the date hereof and ending August 31,
2005; provided that on September 1, 2005 and on each September 1 thereafter, the
term of the Executive's employment hereunder shall automatically be extended for
an additional one-year period unless, prior to such September 1, the Company
shall have given the Executive, or the Executive shall have given the Company,
written notice that the Employment Term shall not be so extended. The period
commencing on the date hereof and ending on the earlier of (i) the termination
of Executive's employment hereunder, and (ii) the later of August 31, 2005 or
the expiration of all one-year extensions described in the preceding sentence,
is referred to herein as the Employment Term.
If the Executive continues in the full-time employ of the
Company after the end of the Employment Term (it being expressly understood and
agreed that the Company does not now, nor hereafter shall have, any obligation
to continue the Executive in its employ whether or not on a full-time basis,
after said Employment Term ends), then, unless otherwise expressly agreed to by
the Executive and the Company in writing, the Executive's continued employment
by the Company after the Employment Term shall, notwithstanding anything to the
contrary expressed or implied herein, be terminable by the Company at will, with
or without cause and with or without notice, but shall in all other respects be
subject to the terms and conditions of this Agreement.
3. Duties. The Executive shall be employed as Vice President of
the Company and President of Hemophilia Health Services, Inc. ("HHS"), shall,
subject to the direction of the Board of Directors of the Company (the "Board"),
faithfully and competently perform such duties as inhere in such position and
shall also perform and discharge such other executive employment duties and
responsibilities consistent with his position as Vice President of the Company
and President of HHS as the Board of Directors of the Company may from time to
time reasonably prescribe, including serving as Vice President of the Company
and President of HHS, of one or more of the Company's subsidiaries or
affiliates. The Executive's primary workplace will be located in Memphis,
Tennessee. Except as set out herein or as may otherwise be approved in advance
by the Board, and except during vacation periods and reasonable periods of
absence due to sickness, personal injury or other disability, personal affairs
or non-profit public service activities, the Executive shall devote his full
time during normal business hours throughout the Employment Term to the services
required of him hereunder. The Executive shall render his business services
exclusively to the Companies (as defined in Section 6(a)) during the Employment
Term and shall use his best efforts, judgment and energy to improve and advance
the business and interest of the Companies in a manner consistent with the
duties of his position.
4. Salary and Bonus.
(a) Salary. As compensation for the performance by
the Executive of the services to be performed by the
Executive hereunder during the Employment Term, the
Company shall pay the Executive a base salary at the
annual rate of Two Hundred Thirty-Four Thousand
Three Hundred ($234,300.00) Dollars (said amount
being hereinafter referred to as "Salary"). Any
Slary payable hereunder shall be paid in regular
intervals (but in no event less frequently than
monthly) in accordance with the Company's payroll
practices from time to time in effect. The Salary
payable to the Executive pursuant to this Section
4(a) shall be increased annually, as of September 1,
2003 and each September 1 thereafter for the
twelve-month period then commencing, by an amount
equal to (i) the annual percentage increase in the
Consumer Price Index for Urban Consumers, All Items,
Memphis, Tennessee Area, for the most recent
twelve-month period for which such figures are then
available as reported in the Monthly Labor Review
published by the Bureau of Labor Statistics of the
U.S. Department of Labor or (ii) such higher
amount as may be determined from time to time by the
Board in its sole discretion. Any increase in
salary shall be reflected in minutes of the Board or
the Compensation Committee of the Board and this
Agreement shall automatically be amended to reflect
such salary increase without the necessity of a
formal amendment executed by the parties.
(b) Bonus. The Executive will be entitled to receive
bonus compensation from the Company in respect of
each fiscal year (or portion thereof) occurring
during the Employment Term beginning with the year
which starts on July 1, 2002 provided that Executive
is employed by Company on the last day of said
fiscal year. The amount of such bonus compensation
is based on the extent to which the Company's
planned earnings established by the Board for the
corresponding period (the "Plan EPS") and the
Company's revenue target ("Revenue Target") or such
other targets as shall be set by the Board have been
achieved, as set out on Exhibit A. Exhibit A may be
amended each fiscal year to reflect the Plan EPS,
Revenue Target and other targets established by the
Board for the then current fiscal year. Exhibit A
will be replaced with the revised Exhibit A approved
by
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the Board when and as amended without the
necessity of said amendment being executed by the
parties hereto.
(c) Withholding, Etc. The payment of any Salary and
bonus hereunder shall be subject to applicable
withholding and payroll taxes, and such other\
deductions as may be required by law or the
Company's employee benefit plans.
5. Other Benefits. During the Employment Term, the Executive
shall:
(i) be eligible to participate in employee
fringe benefits and pension and/or profit
sharing plans that may be provided by the
Company for its senior executive employees
in accordance with the provisions of any
such plans, as the same may be in effect
from time to time;
(ii) be eligible to participate in any medical
and health plans or other employee welfare
benefit plans that may be provided by the
Company for its senior executive employees
in accordance with the provisions of any
such plans, as the same may be in effect
from time to time;
(iii) be entitled to twenty-five paid vacation
days in each calendar year beginning January
1, 2002, as well as all paid holidays given
by the Company to its senior executive
officers;
(iv) be entitled to personal time off, sick
leave, sick pay and disability benefits in
accordance with any Company policy that may
be applicable to senior executive employees
from time to time; and
(v) be entitled to reimbursement for all
reasonable and necessary out-of-pocket
business expenses incurred by the Executive
in the performance of his duties hereunder
in accordance with the Company's policies
applicable thereto.
In addition, from the date hereof until the expiration of the
Employment Term, the Company shall maintain term insurance coverage on
the life of the Executive (excluding any such coverage provided for
pursuant to the foregoing provisions of this Section 5) in the
aggregate amount of $500,000, payable to that Executive's named
beneficiaries in accordance with standard policy terms and conditions.
For purposes of determining eligibility, vesting and benefit accrual
under each of the benefit plans and arrangements referred to in this
Section 5, the Executive shall be credited with service for all years
and partial years of service with NFI, Southern Health Systems, Inc.
("SHS"), or any of their affiliates prior to the date hereof.
6. Confidential Information. The Executive hereby covenants,
agrees and acknowledges as follows:
(a) The Executive has and will have access to and will
participate in the development of or be acquainted
with confidential or proprietary information and
trade secrets related to the business of the Company
and any other present or future subsidiaries or
affiliates of the Company (collectively, with the
Company, the "Companies"), including but not limited
to (i) customer and physician lists; patient
histories, patient identities and related records
and compilations of
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information; the identify, lists or descriptions
of any new customers or physicians, referral sources
or organizations; financial statements; cost reports
or other financial information; contract proposals
or bidding information; business plans; training and
operations methods and manuals; personnel records;
software programs; reports and correspondence;
premium structures; and management systems, policies
or procedures, including related forms and manuals;
(ii) information pertaining to future developments
such as future marketing or acquisition plans or
ideas, and potential new business locations and new
suppliers and (iii) all other tangible and
intangible property, which are used in the business
and operations of the Companies but not made public.
The information and trade secrets relating to the
business of the Companies and described hereinabove
in this paragraph (a) are hereinafter referred to
collectively as the "Confidential Information",
provided that the term Confidential Information
shall not include any information (x) that is or
become generally publicly available (other than as a
result of violation of this Agreement by the
Executive) or (y) that the Executive receives on a
nonconfidential basis from a source (other than the
Companies or their representatives) that is not
known by him to be bound by an obligation of secrecy
or confidentiality to any of the Companies.
(b) The Executive shall not disclose, use or make
known for his or another's benefit any Confidential
Information or use such Confidential Information in
any way except as is in the best interests of the
Companies in the performance of the Executive's
duties under this Agreement. The Executive may
disclose Confidential Information when required by a
third party and applicable law or judicial process,
but only after providing (I) notice to the Company
of any third party's request for such information,
which notice shall include the Executive's intent
with respect to such request, and (ii) sufficient
opportunity for the Company to challenge or limit
the scope of the disclosure on behalf of the
Companies, the Executive or both.
(c) The Executive acknowledges and agrees that a remedy
at law for any breach or threatened breach of the
provisions of this Section 6 would be inadequate and,
therefore, agrees that the Companies shall be
entitled to injunctive relief in addition to any
other available rights and remedies in case of any
such breach or threatened breach; provided, however,
that nothing contained herein shall be construed as
prohibiting the Companies from pursuing any other
rights and remedies available for any such breach or
threatened breach.
(d) The Executive agrees that upon termination of his
employment with the Company for any reason, the
Executive shall forthwith return to the Company all
Confidential Information in whatever form maintained
(including, without limitation, computer discs and
other electronic media).
(e) The obligations of the Executive under this Section 6
shall, except as otherwise provided herein, survive
the termination of the Employment Term and the
expiration or termination of this Agreement.
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(f) Without limiting the generality of Section 10 hereof,
the Executive hereby expressly agrees that the
foregoing provisions of this Section 6 shall be
binding upon the Executive's heirs, successors and
legal representatives.
7. Termination.
(a) The Executive's employment hereunder shall be
terminated upon the occurrence of any of the
following:
(i) death of the Executive;
(ii) The Executive's inability to perform his
duties on account of disability or
incapacity for a period of one hundred eight
(180) or more days, whether or not
consecutive, within any period of twelve
(12) consecutive months;
(iii) the Company giving written notice, at any
time, to the Executive that the Executive's
employment is being terminated "for cause"
(as defined below);
(iv) the Company giving written notice, at any
time, to the Executive that the Executive's
employment is being terminated other than
pursuant to clause (i), (ii) or (iii) above;
or
(v) the Executive giving written notice, at any
time, to the Company that the Executive is
terminating his employment for "good reason"
(as defined below).
The following actions, failures and events by or affecting the
Executive shall constitute "cause" for termination within the meaning of clause
(iii) above: (A) an indictment for or conviction of the Executive of, or the
entering of a plea of nolo contendere by the Executive with respect to, having
committed a felony, (B) acts of fraud or criminal conduct by the Executive that
are detrimental to the financial condition or business reputation of one or more
of the Companies, (C) acts or omissions by the Executive that the Executive knew
were likely to damage the business of one or more of the Companies, (D) willful
failure by the Executive to perform, or willful disregard by the Executive of,
his obligations hereunder or otherwise relating to his employment, or (E)
willful failure by the Executive to obey the reasonable and lawful policies or
orders of the Board that are consistent with the provisions of this Agreement.
For purposes of this Agreement, the Executive shall not be deemed to have been
terminated for cause unless and until there shall have been delivered to the
Executive a copy of a resolution, duly adopted by the Board, stating that, in
the good faith opinion of the Board, the Executive is guilty of an action or
omission that constitutes cause and specifying the particulars thereof in
reasonable detail. Before adopting any such resolution, the Board shall offer
the Executive, upon reasonable written notice (which need not exceed two days),
an opportunity for him together with his counsel, to be heard by the Board.
The following circumstances shall constitute "good reason" for
termination within the meaning of clause (v) above: (I) the assignment to the
Executive of duties that are materially inconsistent with the Executive's
position or with his authority, duties or responsibilities as contemplated by
Section 3
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of this Agreement, or any other action by the Company or their successors which
results in a material diminution or material adverse change in the Executive's
title, position, authority, duties or responsibilities, (II) any material breach
by the Company or their successors of any provision of this Agreement, (III) a
relocation of the Executive's primary workplace without his written consent to
any location other than the one described in Section 3 hereof, or (IV) the
Company fails to continue in effect any cash or stock-based incentive or bonus
plan, retirement plan, welfare benefit plan or other benefit plan, unless the
aggregate value of all such compensation, retirement and benefit plans provided
to the Executive after the changes is not less than the aggregate value of the
plans as of the date before such plans are changed.
(b) In the event that (A) the Executive's employment is
terminated pursuant to clause (iv) or (v) of Section
7(a) above, whether during the Employment Term or
during any continuation of employment pursuant to
Section 2 above, or (B) Executive shall resign his
employment within twelve (12) months following a
Change in Control, the Company shall pay to the
Executive, as severance pay or liquidated damages or
both, bi-monthly payments at the rate per annum of
his Salary at the time of such termination or
resignation for a period from the date of such
termination to the first anniversary of such
termination or resignation. The Executive shall
continue to participate in the medical, dental,
life, accident and disability benefit plans and
arrangements of the Company as provided in Section 5
and on the same basis and at the same cost to
Executive as on the date of termination until the
earlier of (x) the first anniversary of such
termination or resignation, or (y) the date the
Executive becomes covered by a plan that provides
coverage or benefits at least equal to the Company's
plan. In addition, to the extent that Executive is
not then 100% vested in any employer matching
contribution and earnings thereon allocated to his
account in the Company's 401(k) Plan, and said
non-vested amount is forfeited, the Company will pay
Executive a lump sum amount on the date of such
forfeiture equal to the non-vested forfeited amount.
(c) For purposes of this Agreement, "Change in
Control" means and includes each of the following:
(1) The acquisition by any individual,
entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the 1934 Act) (a "Person") of
beneficial ownership (within the meaning of Rule
13d-3 promulgated under the 1934 Act) of 50% or more
of the combined voting power of the then outstanding
voting securities of the Company entitled to vote
generally in the election of directors (the
"Outstanding Corporation Voting Securities");
provided, however, that for purposes of this
subsection (1), the following acquisitions shall not
constitute a Change of Control: (i) any acquisition
directly from the Company, (ii) any acquisition by
the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or
maintained by the Company or any corporation
controlled by the Company, or (iv) any acquisition by
any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of
subsection (3) of this definition; or
(2) Individuals who, as of the date of this
Agreement, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a
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majority of the Board; provided, however, that any
individual becoming a director subsequent to the
Effective Date 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 shall be
considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of
office occurs as a result of an actual or threatened
election contest with respect to the election or
removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(3) Consummation of a reorganization,
merger or consolidation or sale or other disposition
of all or substantially all of the assets of the
Company (a "Business Combination"), in each case,
unless, following such Business Combination, (i) all
or substantially all of the individuals and entities
who were the beneficial owners of the Outstanding
Corporation Voting Securities immediately prior to
such Business Combination beneficially own, directly
or indirectly, more than 50% of the combined voting
power of the then outstanding voting securities
entitled to vote generally in the election of
directors of the Company resulting from such Business
Combination (including, without limitation, a
corporation which as a result of such transaction
owns the Company or all or substantially all of the
Company's assets either directly or through one or
more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to
such Business Combination of the Outstanding
Corporation Voting Securities, and (ii) no Person
(excluding any corporation resulting from such
Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation
resulting from such Business Combination)
beneficially owns, directly or indirectly, 50% or
more of the combined voting power of the then
outstanding voting securities of such corporation
except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least
a majority of the members of the board of directors
of the corporation resulting from such Business
Combination were members of the Incumbent Board at
the time of the execution of the initial agreement,
or of the action of the Board, providing for such
Business Combination; or
(4) Approval by the stockholders of the
Company of a complete liquidation or dissolution of
the Company.
(d) Notwithstanding anything to the contrary expressed
or implied herein, except as required by applicable
law and except as set forth in Section 7(b) above,
the Company (and its affiliates) shall not be
obligated to make any payments to the Executive or
on his behalf of whatever kind or nature by reason
of the Executive's cessation of employment
(including, without limitation, by reason of
termination of the Executive's employment by the
Company for "cause"), other than (i) such amounts,
if any, of his Salary as shall have accrued and
remained unpaid as of the date of said cessation,
(ii) such other amounts, if any, which may be then
otherwise payable to the Executive pursuant to
clause (v) of Section 5 above, and (iii) any amounts
owed or obligations to the Executive pursuant to the
terms of any option or other stock-based award
granted to him by the Company.
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(e) No interest shall accrue on or be paid with respect
to any portion of any payments timely made
hereunder.
8. Non-Assignability.
(a) Neither this Agreement nor any right or interest
hereunder shall be assignable by the Executive or
his beneficiaries or legal representatives without
the Company's prior written consent; provided,
however, that nothing in this Section 8(a) shall
preclude the Executive from designating a
beneficiary to receive any benefit payable hereunder
upon his death or incapacity. Neither this
Agreement nor any right or interest hereunder shall
be assignable by the Company; provided, however,
that notwithstanding the foregoing, this Agreement
and the Company's rights and interests hereunder may
be assigned by the Company pursuant to a merger or
consolidation in which the Company is not the
continuing entity, or the sale or liquidation of all
or substantially all of the assets of the Company,
provided that (i) the assignee or transferee is the
successor to all or substantially all of the assets
of the Company and (ii) such assignee or transferee
assumes the liabilities, obligations and duties of
the Company, as contained in this Agreement, either
contractually or as a matter of law.
(b) Except as required by law, no right to receive
payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or
similar process or to assignment by operation of law,
and any attempt, voluntary or involuntary, to effect
any such action shall be null, void and of no effect.
9. Restrictive Covenants
(a) Competition. During the Employment Term, during any
continuation of employment pursuant to Section 2
above and during the twelve (12) month period
following termination of the Executive's employment
with the Company for any reason, provided that
payments, if any, required pursuant to Section 7(b)
hereof are made in full and in a timely fashion, the
Executive will not directly or indirectly (as a
director, officer, executive employee, manager,
consultant, independent contractor, advisory or
otherwise) engage in competition with, or own any
interest in, perform any services for, participate
in or be connected with any business or organization
which engages in competition with any of the
Companies within the meaning of Section 9(d),
provided, however, that the provisions of this
Section (a) shall not be deemed to prohibit the
Executive's ownership of not more than two percent
(2%) of the total shares of all classes of stock
outstanding of any publicly held company, or
ownership, whether through direct or indirect
stockholding or otherwise, of one percent (1%) or
more of any other business.
(b) Non-Solicitation. During the Employment Term,
during any continuation of employment pursuant to
Section 2 above and during the twelve (12) month
period following termination of the Executive's
employment with the Company for any reason, provided
that payments, if any, required pursuant to Section
7(b)
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hereof are made in full and in a timely fashion, the
Executive will not knowingly directly or indirectly
induce or attempt to induce any employee of any of
the Companies to leave the employ of any of the
Companies or of their subsidiaries or affiliates, or
in any way interfere with the relationship between
any of the Companies and any employee thereof.
(c) Non-Interference. During the twelve (12) month
period following termination of the Executive's
employment with the Company for any reason, provided
that payments, if any, required pursuant to Section
7(b) hereof are made in full and in a timely fashion,
the Executive will not directly or indirectly hire,
engage, send any work to, place orders with, or in
any manner be associated with any business entity
which, during the period of twelve months preceding
or following such termination of employment, was
among the five largest suppliers of the Company by
dollar volume.
(d) Certain Definitions. For purposes of this
Section 9, a person or entity (including without
limitation, the Executive) shall be deemed to be a
competitor of one or more of the Companies, or a
person or entity (including, without limitation, the
Executive) shall be deemed to be engaging in
competition with one or more of the Companies, if,
at the time of determination, such person or entity
(A) engages in any business engaged in or proposed
to be engaged in by any of the Companies, or (B) in
any way conducts, operates, carries out or engages
in the business of managing any entity engaged in
any business described in clause (A), in each case,
in any state of the United States of America,
excluding, however, during any period following the
termination of the Executive's employment with the
Company, (x) any business or any state in which none
of the Companies was engaged or had proposed to be
engaged at the time of termination of the
Executive's employment with the Company, and (y)
after termination of the Executive's employment, any
business which was not, prior to such termination,
directly or indirectly supervised by the Executive.
(e) Certain Representations of the Executive. In
connection with the foregoing provisions of this
Section 9, the Executive represents that his
experience, capabilities and circumstances are such
that such provisions will not prevent him from
earning a livelihood. The Executive further agrees
that the limitations set forth in this Section 9
(including, without limitation, time and territorial
limitations) are reasonable and properly required
for the adequate protection of the current and
future businesses of the Companies. It is
understood and agreed that the covenants made by the
Executive in this Section 9 shall survive the
expiration or termination of this Agreement.
(f) Injunctive Relief. The Executive acknowledges and
agrees that a remedy at law for any breach or
threatened breach of the provisions of Section 9
hereof would be inadequate and, therefore, agrees
that the Company and any of its subsidiaries or
affiliates shall be entitled to injunctive relief in
addition to any other available rights and remedies
in cases of any such breach or threatened breach;
provided, however, that nothing contained herein
shall be construed as prohibiting the Company or any
of its affiliates from pursuing any other rights and
remedies available for any such breach or threatened
breach.
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10. Indemnity. To the maximum extent permitted by applicable law
and the charter and by-laws of the Company, the Company shall indemnify the
Executive and hold him harmless; for any acts or decisions made by him in good
faith while performing services for the Company or any of its subsidiaries or
affiliates. Company will use reasonable best efforts to maintain, and after
termination to continue, coverage for Executive under director's and officer's
liability coverage to the same extent as other current or former officers and
directors of the Company and its subsidiaries or affiliates. The Company will,
to the extent provided by its charter and by-laws and applicable law, advance or
pay all expenses, including attorney's fees actually and necessarily incurred by
the Executive in connection with the defense of any action, suit or proceeding
arising out of Executive's service for the Company and in connection with any
appeal thereon, including the cost of court settlements.
11. No Mitigation. In the event of Executive's resignation or
termination of the Executive's employment under Section 7, the Executive shall
be under no obligation to seek other employment and there shall be no offset
against any amounts due the Executive under this Agreement on account of any
remuneration attributable to any subsequent employment that the Executive may
obtain.
12. Binding Effect. Without limiting or diminishing the
effect of Section 8 hereof, this Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
successors, legal representatives and assigns.
13. Notices. All notices which are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and (i) delivered personally,
(ii) mailed by certified or registered mail, return receipt requested and
postage prepaid, (iii) sent via a nationally recognized overnight courier or
(iv) sent via facsimile confirmed in writing to the recipient, if to the Company
at the Company's principal place of business, and if to the Executive, at his
home address most recently filed with the Company, or to such other address or
addresses as either party shall have designated in writing to the other party
hereto.
14. Enforcement. Any dispute arising under this Agreement shall,
at the election of either party, be resolved by final and binding arbitration to
be held in Memphis, Tennessee in accordance with the rules and procedures of the
American Arbitration Association. Judgment upon the award entered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
15. Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee.
16. Severability. The Executive agrees that in the event that any
court of competent jurisdiction shall finally hold that any provision of Section
6 or 9 hereof is void or constitutes an unreasonable restriction against the
Executive, the provisions of such Section 6 or 9 shall not be rendered void but
shall apply with respect to such extent as such court may judicially determine
constitutes a reasonable restriction under the circumstances. If any part of
this Agreement other than Section 6 or 9 is held by a court or competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole or
in part by reason of any rule of law or public policy, such part shall be deemed
to be severed from the remainder of this Agreement for the purpose only of the
particular legal proceedings in question and all other covenants and provisions
of this Agreement shall in every other respect continue in full force and effect
and no covenant or provision shall be deemed dependent upon any other covenant
or provision.
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17. Waiver. Failure to insist upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed a waiver of such
term, covenant or condition, nor shall any waiver or relinquishment of any right
or power hereunder at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times.
18. Entire Agreement; Modifications. This Agreement constitutes
the entire and final expression of the agreement of the parties with respect to
the subject matter hereof and supersedes all prior agreements, oral and written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may be modified or amended only by an instrument in writing signed by
both parties hereto.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Executive have duly executed
and delivered this Agreement as of the date and year first above written.
ACCREDO HEALTH, INCORPORATED
By: /s/ David D. Stevens
-------------------------
David D. Stevens
Chief Executive Officer
/s/ Kyle J. Callahan
-------------------------
KYLE J. CALLAHAN
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