EXHIBIT 10.74
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of September 1, 2001, by and among
ACCREDO HEALTH, INCORPORATED, a Delaware corporation (the "Company"), and XXXXXX
X. XXXX, XX. (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,
2004; provided that on September 1, 2004 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, 2004 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 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 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 Sixteen Thousand
($216,000.00) 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 increased
annually, as of September 1, 2002 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, 2001 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
per share established by the Board for the
corresponding period (the "Plan EPS") has been
achieved, as set out on Exhibit A. 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 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.
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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, 2001, as well as all paid holidays given
by the Company to its senior executive
officers and in addition Executive shall be
given paid time to attend continuing legal
education classes necessary to maintain
executive's license to practice law;
(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. Company shall also pay Executive's Tennessee professional
tax which is due annually, the cost of Executive's 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 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 information;
the identify, lists or descriptions of any new customers or
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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.
(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.
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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 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
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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 0000 Xxx) 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
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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.
(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
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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 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)
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.
Notwithstanding the preceding provisions, this
Section shall not apply to Xxxx Xxxxxxxxx,
Executive's Executive Assistant.
(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
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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.
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.
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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.
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.
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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
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
Chief Executive Officer
/s/ Xxxxxx X. Xxxx, Xx.
---------------------------------
XXXXXX X. XXXX, XX.
11
