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Exhibit 10.1
WAIVER AND MODIFICATION
This waiver and modification (this "Waiver") is
made and entered into by the undersigned executive (the
"Executive") and Express Scripts, Inc. ("ESI") effective as of
December 15, 2006.
RECITALS:
A. The Executive is an employee and
executive officer of Express Scripts, Inc. ("ESI"), and is a party
to an Executive Employment Agreement with ESI (the "Employment
Agreement").
B.
On December 12, 2006, ESI’s Board of Directors
(the "Board") authorized ESI to make an offer to acquire all of the
outstanding common stock of Caremark Rx, Inc. ("Caremark"), which
offer may be revised or adjusted by the Board or the Transaction
Committee of the Board (the "Offer").
C. The Executive has received one or more
Awards under the Express Scripts, Inc. 2000 Long Term Incentive
Plan, as amended (the "Plan"), each of which is subject to the
specific terms of such Award and the Plan.
D. Pursuant to Section 2(g)(iii) of the
Plan a "Change in Control" is deemed to occur upon a merger or
certain other "Business Combinations" (as defined in the plan),
unless each of the conditions in Subsections (A), (B) and (C) of
Section 2(g)(iii) are satisfied. The condition in Subsection
2(g)(iii)(A) is as follows:
"all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirect
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