THIS AGREEMENT, dated as of March 24, 2005, is made by and between Express Scripts, Inc. (the “Company”) and Barrett A. Toan (the “Executive”).
WHEREAS, Executive is employed as Chief Executive Officer of the Company and as Chairman and director of the Company's Board of Directors (the “Board”) pursuant to an employment agreement with the Company dated April 1, 1999 as amended (the "Employment Agreement");
WHEREAS, such Employment Agreement expires on March 31, 2005, (the "Commencement Date");
WHEREAS, the Company desires and has requested that after the Commencement Date and through the date of the Company's 2006 Annual Meeting, Executive serve as the non-executive Chairman of the Board and as a consultant to the Company;
WHEREAS, the Company has agreed that it will nominate Executive as part of the Company-recommended slate of directors at the Company's 2005 Annual Meeting;
WHEREAS, Executive has agreed to serve as the non-executive Chairman of the Board if elected and to be available at the Company's request to render services to the Company as a consultant from the Commencement Date through the date of the Company's 2006 Annual Meeting;
WHEREAS, the Company and Executive desire to set forth the terms and conditions of his service as non-executive Chairman of the Board and of his service as a consultant after the Commencement Date;
WHEREAS, the parties agree the Employment Agreement shall remain in full force and effect through the Commencement Date and shall thereafter expire, and further agree that Executive shall be entitled to all compensation and benefits under the Employment Agreement as of such date (or, as applicable, such earlier date as may be specified in the Employment Agreement) in accordance with and subject to the terms of the Employment Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants set forth below, the Company and Executive agree as follows:
1. Duties, Responsibilities & Status.
A. Non-Executive Chairman of the Board. During the Term of this Agreement (as defined in Section 2(A), below), and subject to his election to the Board, Executive shall serve as the non-executive Chairman of the Board and, subject to the direction of the Board from time to time, shall have all duties and responsibilities commensurate with such position including without limitation, establishing and reviewing Board agendas; directing Board information requests to the Company; presiding at Board meetings; providing directors education on relevant issues; together with the Chief Executive Officer of the Company, acting on behalf of the Company with respect to government relations (both legislative and administrative) and non-financial public relations including acting as spokesperson for the Company on such topics; acting as adviser on such specific issues and projects as may be assigned by the Board or any of its committees including litigation advice, strategic planning review, review of succession planning for the Company's senior officers, review of the Company's annual budget with the Company's Chief Executive Officer prior to presentation of such budget to the Board; acting as adviser to the Company's Chief Executive Officer as may be requested by the Chief Executive Officer; acting as a representative for the Company in community involvement matters (including Civic Progress); and serving as a member of the Board of Directors of ESI Foundation.