EXHIBIT
10.1
EXECUTION COPY
EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive Employment Agreement (the
“Agreement”) is made and entered on October 31,
2008, and is effective as of November 1, 2008 (the “Effective
Date”), by and between Express Scripts, Inc., a Delaware
corporation (the “Company”), and George Paz
(“Executive”).
WHEREAS, Executive is now and has been employed
by the Company as its President and Chief Executive Officer
pursuant to the terms of that certain Executive Employment
Agreement effective as of April 1, 2008 (the “Original
Agreement”); and
WHEREAS, the parties wish to amend and restate
the Original Agreement by entering into this Agreement, which shall
supersede the Original Agreement as of the Effective Date, to set
forth the terms and conditions of Executive’s employment with
the Company.
NOW, THEREFORE, in consideration of the premises
and the mutual covenants herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used herein,
the following terms shall have the following meanings:
1.1 “
Accrued Rights ” has the meaning set forth in Section
4.1.
1.2 “
Annual Base Salary ” means the base salary set forth
in Section 3.1 hereof.
1.3 “
Annual Bonus ” means Executive’s annual bonus
granted pursuant to the Annual Bonus Plan, as described in Section
3.2 hereof.
1.4 “
Annual Bonus Plan ” means the annual bonus program
established for senior executives by the Board of Directors of the
Company (the “Board”) or by the Committee, as adopted
or amended from time to time.
1.5 “
Bonus Potential ” means the maximum bonus amount
Executive could receive pursuant to Section 3.2 hereof for
achieving 100% of “base” or “targeted”
performance goals established by the Board or Committee under the
Annual Bonus Plan with respect to the applicable fiscal year;
provided , however , in no event shall
Executive’s Bonus Potential for the year in which the Bonus
Potential is being determined (a) be less than 130% of
Executive’s Annual Base Salary as in effect on January 1 of
such year or (b) take into account, or include in any way, any
increase in Executive’s bonus amount due to the Company
exceeding its “base” or “target” goals for
such year (e.g., if Executive’s “base” or
“target” Bonus Potential is stated at $50,000, but
Executive is eligible to receive more than $50,000 if certain
targets are exceeded then Executive’s Bonus Potential for
purposes of this definition is $50,000).
1.6 “
Cause ” means:
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any act or acts
by Executive, whether or not in connection with his or her
employment by the Company, constituting, or Executive’s
conviction or plea of guilty or nolo contendere (no contest) to,
(i) a felony under applicable law or (ii) a misdemeanor involving
moral turpitude;
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any act or acts
of gross dishonesty or gross misconduct in the performance of
Executive’s duties hereunder;
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any willful
malfeasance or willful misconduct by Executive in connection with
Executive’s duties hereunder or any act or omission which is
materially injurious to the financial condition or business
reputation of the Company or its affiliates; or
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any breach by
Executive of the provisions of Sections 5.1 through 5.3 of this
Agreement, or of the terms and provisions of the Nondisclosure and
Noncompetition Agreement (as defined in Section 1.24
hereof).
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Notwithstanding the foregoing, the event(s)
described in clause (c) of this Section 1.6 shall not be deemed to
constitute “Cause” if such event is (i) primarily the
result of bad judgment or negligence on the part of Executive not
rising to the level of gross negligence; or (ii) primarily because
of an act or omission believed by Executive in good faith to have
been in, or not opposed to, the interests of the Company and its
affiliates.
1.7 “
Change in Control ” means a Change in Control as that
term is defined in the Incentive Plan (as defined in Section 1.22
hereof).
1.8 “
Code ” means the Internal Revenue Code of 1986, as
amended.
1.9 “
Committee ” means the Compensation and Development
Committee of the Board.
1.10 “
Covered Equity Awards ” means the following awards
granted to the Executive under the Incentive Plan: any and all
Options, Stock Appreciation Rights, Restricted Stock Units or
Performance Shares (as such terms are defined in the Incentive
Plan) granted after January 1, 2008, but during the term of this
Agreement.
1.11 “
Covered Payments ” means the amounts described in
Section 6.12(a) hereof.
1.12 “
Deemed Retirement Date means the later to occur of (a) the
date six months after the Executive properly delivers a Notice of
Retirement, or (b) the Termination Date.
1.13 “
Disability ” has the meaning ascribed to such term in
the Incentive Plan.
1.14 “
Early Retirement ” means a voluntary termination of
employment by Executive which is not a Tenured Retirement and which
meets all of the following requirements:
(a) Executive
shall have properly delivered a Notice of Retirement at least six
(6) months prior to the proposed effective date of the
Retirement;
(b) as
of the date of proper delivery of the Notice of Retirement (i)
Executive shall be at least 54 ½ years of age, (ii)
Executive shall have served on Senior Staff for a continuous period
of at least 4 ½ years up to and including the date such
Notice of Retirement is delivered, and (iii) the sum of
Executive’s age plus cumulative years of service on Senior
Staff shall equal at least 64.
1.15 “
Early Retirement Option Expiration Date ” means, with
respect to each applicable grant of Options or Stock Appreciation
Rights, the first to occur of (A) the expiration of such
grant’s respective term (as set forth in the applicable
option or stock appreciation right agreement or notice), or (B) the
date twelve months, plus the number of months in the Early
Retirement Extension Period, after the Deemed Retirement Date (e.g.
if the Early Retirement Extension Period is 4 months, the date
referenced in this Subsection (B) would be 16 months after the
Deemed Retirement Date).
1.16 “
Early Retirement Extension Period ” means a number of
months equal to the number of months from the first day of the
calendar month of Executive’s 55 th birthday to the Deemed Retirement Date,
truncated to a whole number (e.g. if an Executive’s 55
th birthday was February 11, 2009 and his or her
Deemed Retirement Date was November 5, 2009, the Early Retirement
Extension Period would be nine months – the truncated number
of months from February 1, 2009 to November 5, 2009).
1.17 “
Early Retirement Vesting Factor ” means a fraction,
the numerator of which is the number of whole months in the Early
Retirement Extension Period, and the denominator of which is 60;
provided, however, that under no circumstances may the Early
Retirement Vesting Factor be greater than one (or, if expressed as
a percentage, 100%).
1.18 “
Effective Date ” means the date specified in the
recitals to this Agreement.
1.19 “
Employment Period ” means the Initial Employment
Period (as defined in Section 1.23 hereof) plus any additional
Renewal Periods (as defined in Section 1.30 hereof).
1.20 “
Excise Tax ” means the excise tax imposed by Section
4999 of the Code or any similar state or local tax that may be
imposed.
1.21 “
Good Reason ” means the occurrence of any one or more
of the following:
(a) Any
material breach by the Company of any of the provisions of this
Agreement or any material failure by the Company to carry out any
of its obligations hereunder;
(b) The
Company’s requiring Executive to be based at any office or
location more than 50 miles from One Express Way, Saint Louis,
Missouri (the “Current Headquarters”), except for
travel reasonably required in the performance of Executive’s
responsibilities to the extent substantially consistent with
Executive’s business travel obligations;
(c) Any
substantial and sustained diminution in Executive’s authority
or responsibilities from those described in Section 2.3 hereof;
provided, however, notwithstanding the foregoing, (i) in the event
a Change in Control shall occur which results in the Company
becoming a subsidiary of another pharmacy benefit management
company (“PBM”), or which is in the form of a merger in
which the surviving corporation or entity is a PBM (x)
so long as Executive is offered a position as an officer of the
parent PBM (or surviving corporation or entity) with duties and
responsibilities which are not inconsistent in any material adverse
respect with his or her duties and responsibilities immediately
prior to such Change in Control, and such position is based at an
office or location not more than 50 miles from the Current
Headquarters, such change in position shall not constitute Good
Reason, but (y) if Executive is not offered a position as an
officer of the parent PBM or surviving corporation or entity as
described in (x), a substantial and sustained diminution in
Executive’s authority or responsibility shall be deemed to
have occurred; or (ii) in the event a Change in Control shall occur
which results in the Company becoming a subsidiary of a non-PBM or
is in the form of a merger in which the surviving corporation or
entity is not a PBM, failure to receive an offer to serve as an
officer of the non-PBM parent or surviving corporation or entity
shall not constitute Good Reason provided Executive’s duties
subsequent to the Change in Control are not inconsistent in any
material adverse respect with his or her duties immediately prior
to the Change in Control, and such position is based at an office
or location not more than 50 miles from the Current
Headquarters;
(d) The
failure by the Company to continue to provide Executive with
substantially similar perquisites or benefits Executive enjoyed in
the aggregate under the Company’s benefit programs (other
than long-term incentive compensation programs), such as any of the
Company’s pension, savings, vacation, life insurance,
medical, health and accident, or disability plans in which he or
she was participating at the time of any such discontinuation (or,
alternatively, if such plans are amended, modified or discontinued,
substantially similar equivalent benefits thereto in the
aggregate), or the taking of any action by the Company which would
directly or indirectly cause such benefits to be no longer
substantially equivalent in the aggregate to the benefits in effect
immediately prior to taking such action; provided , that any
amendment, modification or discontinuation of any plans or benefits
referred to in this subsection (d) hereof that generally affect
substantially all other domestic salaried employees of the Company
who were eligible to participate, and participated, in the affected
Company benefit program(s) shall not be deemed to constitute Good
Reason; and
(e) The
timely delivery by the Company to the Executive of notice under
Section 2.2, indicating that the Company does not desire to renew
this Agreement for an additional Renewal Period, unless the
Employment Period during which such notice is delivered is
scheduled to end after the Executive has attained the age of
65;
provided that the events described in Section 1.21 (a),
(b), (c) or (d) above shall only constitute Good Reason if the
Company fails to cure such event within 30 days after receipt from
Executive of written notice of the event which constitutes Good
Reason; and provided further that, “Good Reason” shall
cease to exist for an event on the 120th day following the later of
its occurrence or Executive’s knowledge thereof, unless
Executive has given the Company written notice thereof prior to
such date.
Notwithstanding
anything to the contrary set forth in this Section 1.21, the
Company’s appointment of a new President to succeed Executive
with Executive’s consent (which consent shall not be
unreasonably withheld) shall not constitute Good Reason.
1.22 “
Incentive Plan ” means the Express Scripts, Inc. 2000
Long-Term Incentive Plan, as amended from time to time.
1.23 “
Initial Employment Period ” has the meaning set forth
in Section 2.2 hereof.
1.24 “
Nondisclosure and Noncompetition Agreement ” means the
Form of Nondisclosure and Noncompetition Agreement entered into by
and between Executive and the Company dated as of January 29,
1998.
1.25 “
Notice of Retirement ” means a notice of any purported
Retirement by Executive as further described in Section 4.5(b)
hereof.
1.26 “
Notice of Termination ” means a notice of any
purported termination of Executive’s employment by the
Company or by Executive as further described in Section 4.5
hereof.
1.27 “
Original Effective Date ” means the date specified in
the recitals to this Agreement.
1.28 “
Payment Cap ” means the maximum amount described in
Section 6.12(b) hereof.
1.29 “
Post-Retirement Performance Share Factor ” means a
fraction determined as follows:
(a) The
numerator shall be the sum of (i) the number of calendar years in a
Performance Period (as such term is defined in the Incentive Plan)
during which the Executive was employed by the Company as of
December 31 of such year, plus (ii) an additional one year for the
calendar year in which the Termination Date occurs, provided that
the Executive was employed by the Company during such year for at
least three full calendar months prior to the Termination Date, and
further provided that such additional year was not already included
in 1.29(a)(i) above (e.g. for a Performance Period of January 1,
2008 through January 1, 2011, and a Termination Date of March 31,
2009 or thereafter, the numerator shall be two); and
(b)
The denominator shall be the number of full calendar years in a
Performance Period (e.g. for a Performance Period of January 1,
2008 through January 1, 2011, the denominator shall be
three).
1.30 “
Renewal Period ” has the meaning set forth in Section
2.2 hereof.
1.31 “
Retirement ” means an Early Retirement, a Tenured
Retirement or any other voluntary termination of employment by
Executive which becomes effective on or after Executive has reached
the age of 59 ½.
1.32 “
Senior Staff ” means those members of the
Company’s senior management team with a pay grade of M3 or
higher, or a similar level under any new or revised salary grading
system utilized by the Company.
1.33 “
Severance Benefit ” means a severance payment in an
amount equal to:
(a) eighteen
(18) months of Executive’s Annual Base Salary as in effect
immediately prior to the Termination Date, plus
(b) an
amount equal to one hundred fifty percent (150%) of the product of
(i) Executive’s Bonus Potential for the year in which the
Termination Date occurs (the “Termination Year”),
multiplied by (ii) the average percentage of the Bonus Potential
earned by the Executive for the three (3) full years immediately
preceding the Termination Year, (or such shorter period if
Executive was employed by the Company for less than three (3) full
years and received, or was eligible to receive, a bonus during such
period), which product shall be prorated for the portion of the
Termination Year in which Executive was employed by the Company;
provided, however, that such product shall not be prorated if the
Termination Date occurs within one year following a Change in
Control Date (as defined in the Incentive
Plan). Notwithstanding anything to the contrary herein,
neither the three-year average percentage of Bonus Potential
described in (ii) above, nor the percentage of Bonus Potential for
any single year used to compute such three-year average, may exceed
100%; provided, however, that there shall be no such 100% maximum
for the three year average, or for any single year, if the
Termination Date occurs within one year following a Change in
Control Date.
1.34 “
Tax Reimbursement Payment ” means the payment
described in Section 6.12(c) hereof.
1.35 “
Tenured Retirement ” means a voluntary termination of
employment by Executive which meets all of the following
requirements:
(a) Executive
shall have properly delivered a Notice of Retirement at least six
(6) months prior to the proposed effective date of the
Retirement;
(b) as
of the date of proper delivery of the Notice of Retirement (i)
Executive shall be at least 59 ½ years of age, and (ii)
Executive shall have served on Senior Staff for a continuous period
of at least 4 ½ years up to and including the date such
Notice of Retirement is delivered.
1.36 “
Termination Date ” means the effective date of
termination of Executive’s employment as determined in
accordance with Section 4.5 hereof.
1.37 “
Welfare Benefit ” has the meaning set forth in Section
4.2.
ARTICLE II
TERM/POSITION
2.1
Employment; Effectiveness of Agreement
. Effective as of the Original Effective Date, the
Company hereby employs Executive, and Executive hereby accepts such
employment, according to the terms and conditions set forth in this
Agreement.
2.2
Term . Subject to the provisions of Sections 4.1
through 4.5 of this Agreement, the term of Executive’s
employment hereunder shall commence on the Original Effective Date
and continue through March 31, 2011 (the “Initial Employment
Period”). This Agreement may be extended by the
Company and Executive beyond the Initial Employment Period (any
such additional period, a “Renewal Period”) upon the
mutual written agreement of the Company and
Executive. The Initial Employment Period and any Renewal
Periods, if any, shall constitute the “Employment
Period” for purposes of this Agreement. If there
are no Renewal Periods, then the Employment Period shall have the
same meaning as Initial Employment Period. Except as set
forth in Section 6.1 hereof, upon termination of Executive’s
employment with the Company in accordance with the terms hereof or
upon termination of the Initial Employment Period or the Employment
Period without extension thereof, this Agreement shall terminate
and no longer be of any force or effect.
2.3
Position and Duties . Executive shall hold the
position of President and Chief Executive Officer and shall report
to, and at all times be subject to the lawful direction of, the
Board of Directors of the Company. Additionally,
Executive shall serve as a member of the executive staff and
participate in the strategic decision-making of the Company from
time to time. If requested, Executive shall also serve as a member
of the Board without additional compensation. During the
Employment Period, Executive shall devote his or her best efforts
and his or her full business time and attention (except for
permitted vacation periods and reasonable periods of illness or
other incapacity) to the business affairs of the Company. Executive
shall perform his or her duties and responsibilities to the best of
his or her abilities in a diligent, trustworthy, businesslike and
efficient manner. Nothing herein shall preclude Executive from, (a)
subject to the prior written consent of the Board, or an
appropriate committee of the Board, serving on any for-profit
corporate or governmental board of directors (b) serving on the
board of, or working for, any charitable, not-for-profit or
community organization, (c) pursuing his or her personal, financial
and legal affairs, or (d) pursuing any other activity;
provided that Executive shall not engage in any other
business, profession, occupation or other activity, for
compensation or otherwise, which would violate the provisions of
Section 5.1 or would, in each case, and in the aggregate, otherwise
conflict or interfere with the performance of Executive’s
duties and responsibilities hereunder, either directly or
indirectly, without the prior written consent of the Board or an
appropriate committee of the Board.
2.4
New President . The appointment of a different
person to the office of President of the Company during the term of
this Agreement shall not constitute “Good Reason” for
Executive’s termination of employment hereunder, provided
such person reports to and is subject to the direction of Executive
in Executive’s capacity as Chief Executive
Officer.
ARTICLE III
COMPENSATION AND BENEFITS
3.1
Annual Base Salary . During the Employment
Period, the Company shall pay Executive a base salary (the
“Annual Base Salary”) at the annual rate of Nine
Hundred Fifty Thousand Dollars ($950,000.00), which shall be
payable in regular installments in accordance with the
Company’s usual payroll practices and shall be subject to
deductions for customary withholdings, including, without
limitation, federal, state and local withholding taxes, social
security taxes and Medicare taxes. Executive shall be eligible for
such merit-based increases in Executive’s Annual Base Salary,
if any, as may be determined from time to time in the sole
discretion of the Board or the Committee; provided that any such
increase shall not serve to limit or reduce any other obligation to
Executive under this Agreement. The term “Annual Base
Salary” as used in this Agreement shall refer to the Annual
Base Salary as in effect from time to time during the Employment
Period. Executive’s Annual Base Salary shall not be reduced
after any such increase without Executive’s express written
consent.
3.2
Annual Incentive Compensation . Executive shall
be eligible to participate in the Company’s Annual Bonus Plan
established for senior executives by the Board or the Committee.
The size of Executive’s bonus opportunity, which for any
calendar year shall be no less than 130% of Executive’s
Annual Base Salary as in effect on January 1 of such year, and the
terms of Executive’s participation in the Annual Bonus Plan
shall be determined based on the terms and conditions of the Annual
Bonus Plan, subject to adjustment as described therein, and in
accordance with any bonus award agreement
thereunder. Executive’s Annual Bonus shall be
subject to deductions for customary withholdings, including,
without limitation, federal, state and local withholding taxes,
social security taxes and Medicare taxes
3.3
Participation in Benefit Plans . During the
Employment Period, Executive shall be entitled to participate in
the Company’s employee benefit plans (other than bonus and
incentive plans) as in effect from time to time, on the same basis
as those benefits are generally made available to similarly
situated senior executives of the Company.
3.4
Restricted Stock, Stock Options and Other Equity Awards and
Deferred Compensation . Executive may receive
restricted stock, stock options and other equity awards and
deferred compensation, to the extent determined by the Company,
Board or Committee, as applicable, from time to
time. The terms of any such award shall be documented in
a separate award notice or agreement.
3.5
Business Expenses . During the Employment Period,
Executive shall be reimbursed for all reasonable expenses incurred
by him or her in performing his or her duties hereunder provided
that such expenses are incurred and accounted for in accordance
with the policies and procedures established by the
Company.
3.6
Perquisites . During the Employment Period,
Executive shall be entitled to receive such perquisites and fringe
benefits which similarly situated executives of the Company are
entitled to receive and such other perquisites which are suitable
to the character of Executive’s position with the Company and
adequate for the performance of Executive’s duties
hereunder.
ARTICLE IV
TERMINATION OF EMPLOYMENT
4.1
Termination by the Company for Cause; Termination by Executive
Other Than for Good Reason or Retirement . If the
Employment Period and Executive’s employment under this
Agreement is terminated by the Company for Cause or by Executive
other than for Good Reason or Retirement, prior to the scheduled
expiration of the Employment Period, Executive shall be entitled to
receive:
(a) The
Annual Base Salary through the Termination Date;
(b) Reimbursement
for any unreimbursed business expenses properly incurred by
Executive in accordance with Company policy prior to the
Termination Date; and
(c) Such
employee benefits, if any, to which Executive may be entitled under
the employee benefit plans of the Company, including rights with
respect to any restricted stock, stock option and other equity
awards or any deferred compensation, subject to the terms and
conditions of the applicable plan, award, agreement or notice, if
relevant (the amounts described in clauses (a) through (c) hereof
being referred to as the “Accrued Rights”).
Following such
termination of Executive’s employment hereunder pursuant to
this Section 4.1, Executive shall have no further rights to any
compensation or any other benefits under this
Agreement. Notwithstanding the delivery of a Notice of
Termination or a Notice of Retirement (as applicable) with respect
to a termination other than a termination by the Company under this
Section 4.1, the Company may, at any time on or prior to the
Termination Date, exercise its right to terminate the Employment
Period and Executive’s employment for Cause, and, upon the
proper exercise of such right, any other purported termination
(including a purported Retirement) shall be null and void, and the
terms of this Section 4.1 shall apply. In addition,
notwithstanding the delivery of a Notice of Retirement by
Executive, if the Employment Period and Executive’s
employment under this Agreement is terminated by Executive other
than for Good Reason prior to the proposed effective date set forth
in such Notice of Retirement, such purported Retirement (and the
related Notice of Retirement) shall be null and void, and the terms
of this Section 4.1 shall apply.
4.2
Termination by the Company Other Than for Cause or Disability;
Termination by Executive for Good Reason .
(a) If
the Employment Period and Executive’s employment under this
Agreement is terminated by the Company prior to the scheduled
expiration of the Employment Period other than for Cause or
Disability, or Executive terminates his or her employment prior to
the end of the Employment Period for Good Reason, Executive shall
be entitled to receive:
(ii) Any
Annual Bonus earned for a previously completed fiscal year but
unpaid as of the Termination Date, which Annual Bonus shall be
payable to the extent the corporate bonus pool is approved by the
Committee;
(iii) A Severance Benefit
pursuant to the terms and conditions set forth in Section 4.2(b)
below; and
(iv) The Company will reimburse the
Executive for Executive’s cost of continuing medical
insurance under COBRA, or, following the expiration of the COBRA
period, equivalent medical insurance coverage, for Executive,
Executive’s spouse and any eligible dependents of Executive
until the earlier of (A) thirty-six (36) months after the
Termination Date, or (B) such time as Executive becomes eligible
for group insurance from another employer (the “Welfare
Benefit”).
(b) The
Company shall pay the Severance Benefit, without interest thereon,
in eighteen (18) substantially equal monthly installments, which
installments shall be payable on the first day of each month, with
the first installment payable in the first full month commencing
fifteen (15) days after the Termination
Date. Notwithstanding the foregoing, in the event that
Executive is determined to be a specified employee in accordance
with Section 409A of the Code and the regulations and other
guidance issued thereunder for purposes of the Severance Benefit,
the Severance Benefit shall begin on the first payroll date which
is more than six months following the date of his or her separation
from service; provided, that this sentence shall apply only to the
extent required to avoid Executive's incurrence of any additional
tax or interest under Section 409A of the Code or any regulations
or Treasury guidance promulgated thereunder. Payment of
the Severance Benefit is subject to deductions for customary
withholdings, including, without limitation, federal, state and
local withholding taxes, social security taxes and Medicare taxes.
Executive shall not be under any duty to mitigate damages in order
to be eligible to receive the Severance Benefit.
(c) Notwithstanding
the foregoing, Executive agrees that payment of the Severance
Benefit is contingent upon the following:
(i) In
the event of breach by Executive of Sections 5.1 through 5.3 hereof
(or any breach of any agreements in the release described in
Section 4.2(c)(ii) below, or in the Nondisclosure and
Noncompetition Agreement, or in any other nondisclosure or
noncompetition agreement between Executive and the Company),
Executive shall reimburse the Company for all compensation or other
amounts previously paid, allocated, accrued, delivered or provided
by the Company to Executive pursuant to Section 4.2 (a)(ii) hereof
and the Company shall be entitled to discontinue the future
payment, delivery, allocation, accrual or provision of the
Severance Benefit, the Welfare Benefit, and such other
compensation, including any deferred or equity compensation, as
reflected in the terms of any plan, notice or agreement evidencing
such other compensation, except to the extent prohibited by
applicable law.
(ii) No
later than thirty (30) days after the Termination Date, Executive
must execute and deliver a general release releasing all claims
against the Company (other than those specifically described in the
below proviso) in such form and containing such terms as the
Company may reasonably prescribe; provided , however
, that it shall not be a condition to the Executive’s receipt
of the Severance Benefit that the Executive release the Company
from any of the following:
(A) the
obligations of the Company described in Article IV of the
Agreement; or
(B) any
vested rights that the Executive may have with respect to any
benefits, rights or entitlements under the terms of any employee
benefit programs of the Company to which the Executive is or will
be entitled by virtue of his or her employment with the Company or
any of its subsidiaries, and nothing in the release will prohibit
or be deemed to restrict the Executive from enforcing his or her
rights to any such benefits, rights or entitlements; or
(C) the
Executive’s right to indemnification to the extent provided
in the Company’s Certificate of Incorporation and/or
bylaws.
Following such
termination of Executive’s employment hereunder pursuant to
this Section 4.2, Executive shall have no further rights to any
compensation or any other benefits under this Agreement.
4.3
Termination Due to Death, Disability or Retirement
.
(a)
Rights Upon Termination . If the Employment
Period and Executive’s employment under this Agreement are
terminated due to Executive’s death, Disability or Retirement
prior to the scheduled expiration of the Employment Period,
Executive or Executive’s estate, as applicable, will receive
(a) the Accrued Rights plus any Annual Bonus earned for a
previously completed fiscal year but unpaid as of the Termination
Date which Annual Bonus shall be payable to the extent the
corporate bonus pool is approved by the Committee; provided,
however, that, in the event of Executive’s death, the Company
agrees to abide by previously received written instructions from
the Executive directing the Company to pay the Accrued Rights
and/or the accrued but unpaid Annual Bonus to a living trust or
similar estate planning vehicle
