EXHIBIT 99.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated October 13, 2004 (the "Effective Date"), by
and among ACCREDO HEALTH, INCORPORATED, a Delaware corporation (the "Company"),
and THOMAS W. BELL, JR. (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company and the Executive entered into that certain
employment agreement dated as of September 1, 2001 (the "Original Employment
Agreement"); and
WHEREAS, the Company and the Executive desire to enter into this
Agreement which supercedes and replaces in its entirety the Original Employment
Agreement;
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 and the Executive acknowledge and agree that
the Original Employment Agreement is hereby terminated by mutual consent and
neither the Company nor the Executive shall have any continuing obligation to
the other pursuant to the terms of the Original Employment Agreement.
(b) 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.
(c) 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.
(a) Unless earlier terminated as hereinafter provided, the
term of the Executive's employment under this Agreement shall initially be for a
period beginning on September 1, 2004 and ending August 31, 2007; provided that
on September 1, 2007 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
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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 September 30, 2007 or the expiration
of all one-year extensions described in the preceding sentence, is referred to
herein as the "Employment Term".
(b) 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 or Executive
at will, with or without cause pursuant to Section 6(a), but shall in all other
respects be subject to the terms and conditions of this Agreement, including but
not limited to, the provisions of Section 6(b). Executive shall be entitled to
the benefits provided in 6(b) if Executive's employment ends during the at will
continuation period in a manner which would entitle Executive to such benefits.
3. Duties. The Executive shall be employed as Senior Vice
President and General Counsel of the Company, 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 Senior Vice President and General Counsel as the Board of
Directors of the Company may from time to time reasonably prescribe, including
serving as Senior Vice President and General Counsel 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 Company and any other present or
future subsidiaries or affiliates of the Company (collectively, with the
Company, the "Companies") 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 Eighty-One Thousand Seven Hundred Forty-Five ($281,745.00)
Dollars (said amount being hereinafter referred to as "Salary"). Any Salary
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
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increased annually, as of September 1, 2005 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 eligible 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, 2004, 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. Executive's maximum bonus percentage is set out on Exhibit A. The
Plan EPS, Revenue Target and other targets and the weight given to each for any
fiscal year shall be established by the Board or by a committee designated by
the Board, and shall be set out in minutes of the Board of Directors of the
Company or the designated committee. Bonuses earned during the fiscal year will
normally be paid during the September next following the end of the fiscal year.
(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:
(a) 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;
(b) 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;
(c) be entitled to personal time off equal to twenty-five paid
days in each calendar year beginning January 1, 2004, as well as all paid
holidays given by the Company to its senior executive officers;
(d) be entitled to 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
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(e) 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. Company shall also pay Executive's Tennessee
professional tax which is due annually, the cost of Executive attending
continuing legal education seminars necessary to maintain his license to
practice law and membership dues for Executive in the American Health Lawyers
Association and the American Bar Association. 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 Nova Factor, Inc.,
Southern Health Systems, Inc. ("SHS"), or any of their affiliates prior to the
date hereof.
6. 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
for any reason, including disability or incapacity for a period of one
hundred eighty (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 the Company
giving notice pursuant to Section 2(a) that Executive's employment term
will not be extended; 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
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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: (A) 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 of this Agreement, or any other action by the Company or its
successors which results in a material diminution or material adverse change in
the Executive's title, position, authority, duties or responsibilities, (B) any
material breach by the Company or its successors of any provision of this
Agreement, (C) a relocation of the Executive's primary workplace without his
written consent to any location more than 20 miles from the one described in
Section 3 hereof, or (D) 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 (1) the Executive's employment is
terminated pursuant to clause (iv) or (v) of Section 6(a) above, whether during
the Employment Term or during any continuation of employment pursuant to Section
2(b) above, or (2) Executive shall resign his employment with the Company within
thirty (30) days following a Change in Control, upon the execution of a release
by Executive in substantially the form attached hereto as Exhibit B, (1) the
Company shall pay to the Executive, as severance pay bi-monthly payments at the
rate per annum of his Salary at the time of such termination or resignation for
a period of twenty four (24) months from the date of such termination or
resignation as consideration for the Executive's agreements contained in the
Non-Competition Agreement (defined below); provided that the Company shall have
no obligation to pay or continue to pay this severance benefit if during the
twenty-four-month severance period, if in an action to enforce the
Non-Competition Agreement it is determined by a court of competent jurisdiction
that the Non-Competition Agreement is unenforceable in any respect or if
Executive violates the Non-Competition agreement; (2) to the extent permitted by
the individual benefit plans and the law, 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 second 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, provided that the Company shall
have no obligation to continue the benefits described in this section if during
this period, Executive is released from the non-competition agreement for any
reason or if Executive violates the non-competition agreement; (3) in addition,
to the extent that Executive is not then 100% vested in
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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, and (4) Executive shall be entitled to
a pro-rated bonus equal to the amount of the bonus that Executive would have
been entitled to receive pursuant to Section 4(b) if Executive had remained
employed through June 30 of the fiscal year in which Executive's employment
ended, multiplied by a fraction the numerator of which is the number of days
Executive was employed with Company during that fiscal year and the denominator
of which is 365..
(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 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
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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 6(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 and
Personal Time Off 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 (e) 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 or pursuant to
the Accredo Health, Incorporated Executive Deferred Compensation Plan.
(e) No interest shall accrue on or be paid with respect to any
portion of any payments timely made hereunder.
7. 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 7(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
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(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.
8. 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.
9. No Mitigation. In the event of Executive's resignation or
termination of the Executive's employment under Section 6, 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.
10. Binding Effect. Without limiting or diminishing the effect of
Section 7 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.
11. 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.
12. 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.
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13. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee.
14. Severability. If any part of this Agreement 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.
15. 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.
16. Additional Agreements. On the date hereof, the Executive shall also
execute and deliver to the Company (a) that certain Proprietary Rights Agreement
among the Executive on the one hand and the Company, Nova Factor, Inc.,
Hemophilia Health Services, Inc., Accredo Health Group, Inc., Pharmacare
Resources, Inc. and BioPartners In Care, Inc. in the form attached hereto as
Exhibit C (the "Proprietary Rights Agreement") and (b) that certain National
Restrictive Covenant and Confidentiality Agreement between the Executive and the
Company in the form attached hereto as Exhibit D (the "Non-Competition
Agreement"). The terms and conditions of the both these agreement are
incorporated herein by this reference as if such agreements were fully set forth
herein.
17. 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.
18. 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.
[The Remainder of this Page is Intentionally Blank.]
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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
/s/ David D. Stevens
----------------------
By: David D. Stevens
Title: Chairman and Chief Executive Officer
/s/ Thomas W. Bell, Jr.
--------------------------------------------
Thomas W. Bell, Jr.
EXHIBIT A
Plan EPS and Revenue Target
EXHIBIT B
Release
EXHIBIT C
Proprietary Rights Agreement
EXHIBIT D
National Restrictive Covenant and Confidentiality Agreement
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EXHIBIT A
Plan EPS and Revenue Target
Maximum bonus shall equal 75% of Executive's Salary for the 12 month
fiscal period for which the bonus is payable.
Exhibit A
EXHIBIT B
Release
FORM SEVERANCE AGREEMENT AND GENERAL RELEASE
In return for good and valuable consideration consisting of the
following:
1. Severance pay in an amount equal to (2) years base salary as set
forth in the Employment Agreement of ____________________ ("Employment
Agreement) and paid in accordance with all applicable policies and laws;
2. [insert additional consideration if applicable];
[insert name] on behalf of himself, his heirs, executors and assigns
(collectively "[insert name]"), does hereby release and forever discharge
__________, its subsidiaries, affiliates and successors, and all of its
officers, directors, employees, agents, attorneys, and representatives
(hereinafter collectively "the Company and related others") and agrees to hold
them, and each of them, harmless, from any and all claims, causes of action,
demands, debts, suits, contracts, agreements, obligations, accounts, defenses
and liabilities of any kind, nature or character whatsoever, known or unknown,
suspected or unsuspected, in contract, tort or otherwise, at law, in equity or
otherwise that he may ever have had, now have, or might hereafter have against
the Company and related others for or by reason of any matter, cause or thing
whatsoever occurring at any time, except for the enforcement of the obligations
set forth in this Severance Agreement and General Release ("this Agreement"). In
addition, ____________ knowingly and voluntarily agrees not to commence, join
in, prosecute, or voluntarily participate in any action, suit, counterclaim or
other proceeding arising directly or indirectly from, or relating to, any matter
that is adverse to the Company and related others or their respective interests.
Additionally, ____________ hereby fully releases and forever discharges the
Company and related others and agrees to hold the Company and related others
harmless from any and all claims or causes of action that he may now have or
know about, or hereafter may learn about, arising during, from, or before his
employment or resulting from his employment with or termination from employment
by the Company. ____________ agrees that he will not commence, file, join in,
prosecute or voluntarily participate in any action, suit or other proceeding,
claim, charge, or lawsuit for the purpose of obtaining any monetary awards, or
equitable relief, including any claim for reinstatement of his employment.
____________ further warrants that he has not already filed or instituted any
charge, claim or action against the Company and related others.
____________ acknowledges that this Agreement includes, but is not
limited to, all claims arising under any federal, state or local law, or
ordinance, or any administrative regulations prohibiting employment
discrimination and all claims related to his employment at the Company
including, but not limited to, any claim based on his employment. This Agreement
specifically encompasses all claims under the Employee Retirement Income
Security Act, all claims of employment discrimination based on race, color,
religion, sex, and national origin, as provided under Title VII of the Civil
Rights Act of 1964, as amended, or any Executive Order,
Exhibit B
all claims of discrimination based on age under the Age Discrimination in
Employment Act of 1967, as amended, all claims of discrimination based on
handicap or disability under the Americans with Disabilities Act, and all claims
of employment discrimination under any state or local statute, law or ordinance.
Nothing in this Agreement shall prohibit ____________ from filing a claim,
charge or complaint with the Equal Employment Opportunity Commission or any
other government agency responsible for investigating claims of employment
discrimination, but ____________ specifically waives his right to collect any
benefit in the form of damages, monetary or otherwise, that may result from such
a claim.
____________ agrees that he will voluntarily resign his
employment effective __________, 20__ in exchange for the promises contained
herein. [if applicable]. ____________ acknowledges that he is entitled to no
wages or benefits from the Company after [insert resignation date], except for
those listed herein, and ____________ hereby waives any right or claim he may
have to any benefits, wages or other form of remuneration under contract, law or
otherwise and not expressly provided in this Agreement. ____________ further
acknowledges that he would not be entitled to the benefits and monetary payments
described herein if the parties did not enter into this Agreement. Although
___________'s Employment Agreement is deemed terminated as of _____________,
__________________ acknowledges that the non-competition provisions and
obligations in his Employment Agreement remain in full force and effect and that
he agrees to be bound by those provisions and obligations.
The parties agree that this Agreement and the circumstances of this
severance, including without limitation its existence and the terms of the
Agreement shall be regarded as a confidential communication between the parties
and that the parties will not reveal, disseminate by publication of any sort, or
release, in any manner whatsoever, information concerning this Agreement to any
person or entity except as required by legal process and except to consult any
attorney or other advisor. The parties represent and agree that, before
disclosing all of the terms of this Agreement to any such adviser, they will
require that the adviser likewise agree to the confidentiality provisions
hereof. The parties further agree that they will not disparage or speak
unfavorably about each other or about their respective businesses or their
business practices.
____________ understands that this Agreement constitutes a general
release and that he intends to be legally bound by the same. ____________ also
acknowledges that, in considering whether to sign this Agreement, he has not
relied upon any representation or statement, written or oral, not set forth in
this Agreement and that he has not been threatened or coerced into signing this
Agreement by any person. ____________ has read the Agreement carefully, and
fully understands the terms and consequences or effect of this Agreement and
voluntarily agrees to and accepts the terms of this Agreement. ____________
agrees that he has been and is being advised to consult with his attorney, and
he represents that he has been advised by counsel concerning the effect of this
Agreement.
____________ understands and agrees that, if he violates any terms of
this Agreement, then the Company, in addition to any other remedies arising out
of law or equity, shall be absolved of any continuing obligations set forth
herein. If legal action is commenced to enforce any provision of this Agreement,
the substantially prevailing party in such action shall be entitled
Exhibit B
to recover its attorneys' fees and expenses through any and all trial courts or
appellate levels in addition to any other relief that may be granted.
The parties agree that if any provision of this Agreement is found to
be void or voidable or in any other way unenforceable, the parties shall remain
bound by the remainder of the Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Tennessee. This Agreement and its subject matter have
substantial contacts with Tennessee and all actions, suits, or other proceedings
with respect to this Agreement shall be brought only in a court of competent
jurisdiction sitting in Shelby County, Tennessee, or in the United States
District Court having jurisdiction over that County. In any such action, suit,
or proceeding, such court shall have personal jurisdiction of all the parties
hereto, and service of process upon them under any applicable statutes, laws,
and rules shall be deemed valid and good.
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed to be an original document and all of which, taken
together, shall be deemed to constitute but a single original document.
Notwithstanding any other provision of this Agreement to the contrary,
_______________ is not releasing any vested benefit that he may have under the
provisions and subject to the terms of any applicable employee benefit plan,
including __________________.
____________ acknowledges that he has a period [insert appropriate
period of time] days within which to consider this Agreement. [insert revocation
period if applicable]
DATED this ____ day of __________________, 200_.
__________________________________
[insert resigning employee]
________________________________
[insert company representative]
Exhibit B
EXHIBIT C
PROPRIETARY RIGHTS AGREEMENT
THIS PROPRIETARY RIGHTS AGREEMENT (this "Agreement") is made between
the undersigned Employee ("Employee") and Accredo Health, Incorporated, Nova
Factor, Inc., Hemophilia Health Services, Inc., Accredo Health Group, Inc.,
Pharmacare Resources, Inc., Hemophilia Resources of America, Inc., Home
Healthcare Resources, Inc., Home Healthcare Resources, Limited and BioPartners
In Care, Inc. (collectively, the "Companies").
WITNESSETH
WHEREAS, the Companies desire to have Employee, as a condition of
continued employment pursuant to the terms and conditions of that certain
amended and restated employment agreement between Accredo Health, Incorporated
and Employee, the terms of which are incorporated herein by this reference,
agree to the terms contained herein, in order to clarify and protect the
Companies' title to proprietary rights which may be invented or generated by
Employee during Employee's employment with one of the Companies;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, Employee agrees that Employee shall promptly
disclose, grant and assign, and hereby assigns, to the Companies for their sole
use and benefit all right, title and interest in and to all inventions, ideas,
improvements, technical information, suggestions, products, formula, apparatus,
designs, processes, forms, drawings, writings, research, works-of-authorship,
trade secrets and all other intellectual property and proprietary rights
relating in any way to the business, products or services of the Companies or
capable of beneficial use by the Companies ("Intellectual Property"), which the
Employee shall conceive, develop or acquire during the period of Employee's
employment with any of the Companies (whether or not during usual working hours
or at any other time), together with all patent applications, letters patent,
copyrights and reissues thereof that may at any time be granted for or upon any
such Intellectual Property. In connection therewith, the Employee shall promptly
at all times during and after the date hereof:
(a) execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or proper in the opinion
of the Companies to vest in the Companies' exclusive title to such Intellectual
Property and to enable the Companies to obtain and maintain the entire right and
title thereto throughout the world; and
(b) render to the Companies at their expense all such
assistance as any of the companies may require in the prosecution of
applications for said patents or reissues thereof in the prosecution or defense
of interferences which may be declared involving any said application or patents
and in any litigation in which the Companies may be involved relating to any
such patents, inventions, improvements, technical information, copyrights or
other Intellectual Property.
Exhibit C - 1
Employee acknowledges and agrees that Employee's obligations
under Sections (a) and (b) above shall continue in effect after termination of
his/her employment, regardless of the reason for termination and whether such
termination is voluntary or involuntary, and that the Company is entitled to
communicate Employee's obligations under this Agreement to any future employer
or potential employer.
It is expressly understood and agreed that this Agreement shall include
only those items of Intellectual Property which are invented or generated on or
after the date of this Agreement. In order to determine which Intellectual
Properties are invented or generated on or after the date of this Agreement,
Employee warrants that he/she has not, either solely or jointly with others,
invented or generated any Intellectual Property at any time prior to the date of
this Agreement,
except:_________________________________________________________________________
________________________________________. EMPLOYEE AFFIRMS, AGREES AND
UNDERSTANDS THAT ANY INTELLECTUAL PROPERTY WHICH IS NOT LISTED IN THE PRECEDING
SENTENCE SHALL BE CONCLUSIVELY PRESUMED TO HAVE BEEN GENERATED OR INVENTED AFTER
THE DATE OF THIS AGREEMENT, AND THAT SUCH INTELLECTUAL PROPERTY SHALL BELONG
EXCLUSIVELY TO THE COMPANIES.
Except as may be authorized or directed in writing by a duly authorized
officer of one of the Companies, Employee agrees that he/she will not at any
time hereafter disclose, divulge or communicate or permit to be disclosed,
divulged or communicated to any person, firm or company any Intellectual
Property. Employee further agrees that he/she will not make use of said
Intellectual Property for his/her own purposes, except as may be authorized in
writing by a duly authorized officer of the Companies.
Employee agrees that both during his/her employment with the Companies
and after termination of said employment, he/she will not, without the written
consent of a duly authorized officer of the Companies, copy or remove from the
Companies' business location any drawings, blueprints, bulletins, reports,
reproductions, notes, data, memorandum, models, records or other information of
a confidential or proprietary nature pertaining to any of the Companies, or
which relate to the business of the Companies or to Employee's employment
therewith.
Employee agrees that damages caused by a breach of this Agreement would
be inadequate. Therefore, in the event of a breach or threatened breach of the
terms of this Agreement, the Companies individually or jointly shall be entitled
to injunctive relief without the necessity of posting bond or showing actual
damages.
This Agreement, the rights and obligations of the parties hereto, and
any claims or disputes relating to this Agreement, is to be governed by and
construed in accordance with the laws of the State of Tennessee, excluding the
choice of law rules thereof.
In the event that any provision of this Agreement is found invalid or
unenforceable, it will be enforced to the extent permissible, and the remainder
of this Agreement will remain in full force and effect.
Exhibit C - 2
Employee agrees and understands that this Agreement shall in no way be
a guarantee of employment for any specified length of time.
Executed this _____ day of _____________, 2004.
__________________________________ NOVA FACTOR, INC.
Employee
By:_________________________________
Print:____________________________ (Employee's Name)
Title:______________________________
ACCREDO HEALTH, INCORPORATED ACCREDO HEALTH GROUP, INC.
By:_______________________________ By:_________________________________
Title:____________________________ Title:______________________________
HEMOPHILIA HEALTH SERVICES, INC. PHARMACARE RESOURCES, INC.
By:_______________________________ By:_________________________________
Title:____________________________ Title:______________________________
BIOPARTNERS IN CARE, INC. HEMOPHILIA RESOURCES OF
AMERICA, INC.
By:_______________________________ By:_________________________________
Title:____________________________ Title:______________________________
HOME HEALTHCARE RESOURCES, INC. HOME HEALTHCARE RESOURCES,
LIMITED
By:_______________________________ By:_________________________________
Title:____________________________ Title:______________________________
Exhibit C - 3
EXHIBIT D
NATIONAL RESTRICTIVE COVENANT AND
CONFIDENTIALITY AGREEMENT
This Agreement is made and entered into this ____ day of ____________,
2004 by and between Accredo Health, Incorporated ("Company") and the employee
who has executed this Agreement on the last page hereof ("Employee"). As used
herein, "Protected Parties" shall mean Accredo Health, Incorporated, Accredo
Health Group, Inc., Nova Factor, Inc., Hemophilia Health Services, Inc.,
Southern Health Systems, Inc., Pharmacare Resources, Inc., BioPartners In Care,
Inc., Hemophilia Resources of America, Inc., Home Healthcare Resources, Inc.,
Home Healthcare Resources, Limited, Accredo Health Services (Infusion), Inc.,
Accredo Health Resources, Inc. (New York) and any Affiliate thereof.
W I T N E S S E T H:
WHEREAS, on the date hereof Employee has entered into that certain
Amended and Restated Employment Agreement with the company, the terms and
conditions of which are incorporated herein by this reference, and the execution
and delivery by Employee of this Agreement is a condition to the Company's
agreement to enter into such employment agreement.
NOW, THEREFORE, for and in exchange of the mutual promises contained
herein and for other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Company, acting for itself and on
behalf of all of the Protected Parties, and Employee agree as follows:
1. Covenant of Non-Disclosure of Confidential Information. Employee
recognizes that Employee has had, or will have, access to, and knowledge of,
matters concerning the Drug Distribution Business, including but not limited to,
contents of manuals, procedures, methods of doing business, the identity of
referral sources and suppliers, patient records, information contained in the
books and records of the Protected Parties, financial information, trade
secrets, patient mailing lists, and the names and addresses of patients. All
such information is hereinafter referred to as "Confidential Information."
Employee acknowledges that the Confidential Information is valuable, proprietary
and confidential to Protected Parties, and that Protected Parties have paid
substantial consideration and incurred substantial costs to acquire or develop
the Confidential Information. Employee agrees that the Confidential Information
shall be treated as valuable, proprietary and confidential regardless of whether
third parties would consider it valuable, proprietary and confidential. Employee
agrees that Employee will not at any time, disclose, divulge, or make known to
any person or entity, use, or otherwise appropriate for Employee's own benefit
or the benefit of others any Confidential Information, or permit any person to
examine or make copies of any documents that contain or are derived from
Confidential Information, without the prior written consent of the President of
Company. Employee agrees that upon termination of Employee's employment,
Employee will turn over to Protected Parties all writings and all records of
whatever nature, including computer records and mailing lists, containing
Confidential Information kept by Employee or in Employee's possession, whether
originals or copies, it being agreed that said records are the sole and
exclusive property of Protected Parties, as applicable. Notwithstanding the
preceding
Exhibit D - 1
restrictions, Employee may use Confidential Information following reasonable
prior notice to Company, to provide any mandatory responses to governmental
inquiries. The obligations under this Section 1 are in addition to and not in
lieu of any other rights or obligations, at law or in equity, to maintain the
confidentiality of the Confidential Information, including under applicable
"trade secret" laws. Confidential Information shall not be deemed to include
information which is or becomes generally available to the public other than as
a result of an impermissible disclosure hereunder by Employee.
2. Restrictive Covenant.
(a) Employee hereby acknowledges that the Drug Distribution
Business conducted by Protected Parties is highly competitive and that Employee
is, or will become, knowledgeable about the methods of doing business that are
and will be employed by Protected Parties, the names and histories of patients,
manuals, procedures, programs, referral sources, and advisors, pricing
strategies, patient records, business plans, financial information, and other
information which Protected Parties deem to be confidential, proprietary and a
trade secret. Employee further acknowledges that should Employee enter into
competition with Protected Parties in the Restricted Area, as defined herein,
Employee would have a competitive advantage as a result of Employee's knowledge,
and exposure acquired, concerning the Drug Distribution Business of Protected
Parties. Therefore, in consideration of the benefits conveyed hereunder Employee
agrees that during the Restricted Period defined below, and within the
Restricted Area defined below, Employee shall not in any manner, directly or
indirectly, jointly or individually, on Employee's own behalf, or in conjunction
with or for the benefit of, any other party (whether as agent, employee, owner,
partner, joint venturer, shareholder, independent contractor, investor,
consultant, employer or advisor): (i) engage in, or assist others in engaging
in, competition with a Protected Party within the meaning of Section 2(d), or
(ii) establish or own any financial, beneficial or other interest in (other than
any interest consisting of less than one percent 1% of a class of publicly
traded security acquired in a public market free of transfer restriction), make
any loan to or for the benefit of, or render any managerial, marketing or other
advice or assistance, to any person engaged in competition with a Protected
Party within the meaning of Section 2(d).
(b) In addition to the preceding covenant, and not in
limitation thereof, Employee further agrees that during the Restricted Period,
Employee will not in any manner, directly or indirectly, on Employee's own
behalf, or in conjunction with or for the benefit of any other party, (i) call
upon or otherwise solicit or service patients or prospective patients of
Protected Parties or their Affiliates within the Restricted Area (collectively,
"Restricted Patients"), for the purpose of competing with Protected Parties or
their Affiliates for the business of said Restricted Patients or for the purpose
of influencing Restricted Patients to cease using the services of Protected
Parties or their Affiliates, (ii) call upon or otherwise solicit any other party
that has a relationship, contractual or otherwise, with a Protected Party or
their Affiliates, including without limitation, drug manufacturers or
distributors, referral sources or third party payors, for the purpose of
disrupting or attempting to disrupt any such relationships with a Protected
Party or their Affiliates in a manner that would adversely affect the Drug
Distribution Business of a Protected Party in the Restricted Area or for the
purpose of assisting or creating such a relationship for any other party with
business or operations engaged in the Drug
Exhibit D - 2
Distribution Business in the Restricted Area, or (iii) induce or solicit, or
attempt to induce or solicit, employees of Protected Parties or their Affiliates
to leave their employment with a Protected Party or their Affiliates or in any
way interfere with the relationship between Protected Parties or their
Affiliates and any employee thereof.
(c) Employee agrees that at no time during or after employment
with a Protected Party will Employee attempt to discourage any patient, referral
source, payor, or supplier from doing business with Protected Parties or any
Affiliate thereof.
(d) For purposes of this Section 2, a person or entity
(including, without limitation, the Employee) shall be deemed to be a competitor
of one or more of the Protected Parties, or a person or entity (including,
without limitation, the Employee) shall be deemed to be engaging in competition
with one or more of the Protected Parties, 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 Protected Parties, (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 the Restricted Area,
excluding, however, during any period following the termination of the
Employee's employment with a Protected Party, any business in which none of the
Protected Parties was engaged or had proposed to be engaged at the time of
termination of the Employee's employment with the Company. Employee acknowledges
that the Protected Parties currently engage in the Drug Distribution Business
throughout the United States and Puerto Rico. The Drug Distribution Business
currently engaged in by the Protected Parties is the business of marketing,
advertising, selling, distributing or providing on a retail basis (i) those
drugs or therapies identified on Exhibit A hereto, or (ii) any blood clotting
pharmaceutical, ancillary medical supplies or other related products as
prescribed by a physician and required for the administration of blood clotting
pharmaceuticals to hemophilia patients, or (iii) prescribed Premium Drugs
distributed or sold pursuant to a contract whereby the drug manufacturer or
distributor has granted the pharmacy an exclusive or preferred right to
distribute or act as a dealer, agent or representative for the Premium Drugs,
whether or not title to such drug passes to the pharmacy. A preferred right is
defined as a right granted to ten or fewer entities to distribute drugs from the
manufacturer or the manufacturer's distributor. A Premium Drug is a prescription
drug for a chronic disease that lasts either for the life of the patient or for
six months or more, with an average monthly sales price per patient exceeding
$500.00.
(e) The Restricted Area shall mean the fifty states comprising
the United States of America and Puerto Rico. (Restricted Area shall exclude any
state in which none of the Protected Parties was engaged in or proposed to be
engaged in business at the time of termination of Employee's employment with a
Protected Party).
(f) The Restricted Period shall mean the period beginning on
the date hereof and ending twenty-four months after Employee ceases for any
reason to be employed by a Protected Party.
(g) By way of example, and notwithstanding any provision
herein to the contrary, for purposes of Section 2(a), Employee may, after
termination of employment with the Protected Parties, be employed to perform
services as an employee or consultant (i) at an over
Exhibit D - 3
the counter walk in retail drugstore owned by a national retail drugstore chain,
such as CVS, or at an inpatient hospital pharmacy; provided that the Employee
may not perform services for any such entity's specialty pharmacy division which
is engaged in the Drug Distribution Business, such asPharmacare, Inc., or (ii)
for a drug manufacturer that is not directly engaged in the retail distribution
of a drug in competition with a Protected Party, or (iii) for a manufacturer of
infusion pumps, or (iv) for a distributor of medical supplies, including medical
disposables, that is not engaged in the Drug Distribution Business, or (v) for a
licensed Home Health Agency that is not engaged in the Drug Distribution
Business, or (vi) for a payor that is not directly or indirectly engaged in the
Drug Distribution Business, or (vii) for a drug wholesaler that only markets,
advertises, sells, distributes or provides drugs to retail pharmacies on a
wholesale basis and not at retail (such as Cardinal Health and Amerisource
Bergen, but specifically excluded from this exception are Companies that sell
drugs wholesale to physicians such as the sale at wholesale of IVIG for infusion
of a patient by the physician, and such Companies are explicitly deemed to be in
competition with the Protected Parties and Employee may not be employed to
perform services as an employee or consultant for companies engaged in this type
of wholesale transactions).
3. Enforcement of, and Acknowledgement of Reasonableness of,
Covenants.
(a) Employee has carefully read and considered the provisions
of Sections 1 and 2, and having done so, agrees that the terms of the covenants
are fair and reasonable and are reasonably required for the protection of the
interests of Protected Parties, their business, their officers, their directors,
and their employees. Employee represents that Employee's experience,
capabilities and circumstances are such that these provisions will not prevent
Employee from earning a livelihood. Employee further agrees that Employee has
received valuable and adequate consideration in exchange for entering into the
restrictions set out in this Agreement.
(b) Employee acknowledges and agrees that a remedy at law for
any breach or threatened breach of the provisions of Sections 1 and 2 hereof
would be inadequate, and, therefore, agrees that Protected Parties, jointly or
severally, shall be entitled to injunctive relief, without posting bond or other
security, 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 a Protected Party from pursuing any
other rights and remedies available for any such breach or threatened breach.
(c) Employee further agrees that if suit is successfully
brought to enforce this Agreement or to seek damages for its breach, Employee
will pay to Protected Parties, in addition to any other damages caused to
Protected Parties, all attorney fees incurred by Protected Parties in seeking
such relief.
(d) If Employee shall violate any covenant contained herein
with a stated duration, the duration of any such covenant so violated shall
automatically be extended with respect to the Employee for a period equal to the
period during which such Employee shall have been in violation of such covenant.
Exhibit D - 4
(e) Employee specifically acknowledges that the Protected
Parties are intended third party beneficiaries of the covenants set out in this
Agreement and that any of the Protected Parties suffering harm as a result of a
breach of said covenants shall be entitled to enforce the provisions of the
covenant without the necessity of joining any of the other Protected Parties and
in such event, the covenants contained in Sections 1 and 2 shall be deemed to
have been entered into directly with the Protected Party that has suffered harm.
(f) For purposes of this Agreement, "Affiliate" shall mean any
association, unincorporated organization, corporation, partnership, joint
venture, joint stock company, limited liability company, business trust or other
similar entity organized under the laws of the United States or any state
thereof which is now or in the future controlled by, directly or indirectly,
Accredo Health, Incorporated ("AHI") or any other Affiliate. Control shall mean
the ownership of not less than thirty percent (30%) of the voting securities of
an entity or the right to designate or elect not less than thirty percent (30%)
of the members of its board of directors or other governing board or body by
contract or otherwise.
4. Waiver. No failure to exercise, and no delay in exercising, by
either party hereto, any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege.
5. GOVERNING LAW. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE'S EMPLOYMENT HAS
SIGNIFICANT CONTACTS WITH TENNESSEE. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TENNESSEE. Employee
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the Courts of the State of Tennessee and the United States of
America located in Shelby County, Tennessee for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions
contemplated hereby (and Employee agrees not to commence any action, suit or
proceeding relating thereto except in such courts), and Employee further agrees
that any service of any process, summons, notice or document sent by U.S.
registered mail to his or her last known address as set forth in the Protected
Parties personnel files shall be effective service of process for any action,
suit or proceedings brought against Employee in any such court. Employee hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby, in the courts of the State of Tennessee or the United
States of America located in the Shelby County, Tennessee.
6. Effect. This Agreement shall be binding upon, and shall inure to the
benefit of, Company and the Employee and their respective heirs, legal
representatives, executors, administrators, successors and assigns and shall
inure to the benefit of the now or hereafter existing subsidiaries and
Affiliates of AHI and their respective successors and assigns.
7. Unenforceability. The parties agree that the provisions of this
Agreement are severable. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable, the remainder of this
Agreement shall not be affected thereby and each
Exhibit D - 5
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. In particular, in the event the covenants in
this Agreement shall be determined by any court of competent jurisdiction to be
invalid or unenforceable by reason of extending for too great a period of time
or over too great a geographical area, or by reason of being too extensive in
any other respect, the covenants shall be interpreted to extend only over the
maximum period of time, the maximum geographical area and the maximum extent in
all other respects that the court shall determine is valid and enforceable.
8. Headings. All headings herein are for ease of reference only and
shall not be construed to enlarge or limit the provisions of this Agreement.
9. Employment. No provision contained herein shall be deemed to
guarantee Employee any fixed term of employment or continued employment by
Company or any subsidiary or affiliate thereof. References in this Agreement to
employment by a Protected Party or a subsidiary or affiliate thereof shall
include employment thereby and the status as a leased or loaned employee.
10. Syntax. As the context of this Agreement requires, the masculine
gender shall include the feminine or the neuter.
Exhibit D - 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written, Company acting through its duly
authorized officer.
ACCREDO HEALTH, INCORPORATED
By: _______________________________
Title: ____________________________
___________________________________
EMPLOYEE
___________________________________
Employee's Printed Name
Exhibit D - 7
EXHIBIT A
DRUGS AND THERAPIES
Actimmune
Adagen(R)
Aldurazyme
Apokyn
Aralast
Avonex(R)
Botox(R)
Ceredase(R)
Cerezyme(R)
Clotting Factor
Enbrel(R)
Fabrazyme
Flolan(R)
Human Growth Hormone, including but not limited to Protropin(R) and Nutropin(R)
IVIG
Orfadin
Raptiva
Remodulin
Synagis(R)
Tracleer(TM)
Xolair
Zemaira(TM)
Exhibit D - 8