UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):  August 7, 2017

 

Diplomat Pharmacy, Inc.

(Exact Name of Registrant as Specified in its Charter)

 


 

Michigan
(State or Other Jurisdiction
of Incorporation)

 

001-36677
(Commission File Number)

 

38-2063100
(IRS Employer
Identification No.)

 

4100 S. Saginaw St.

Flint, Michigan 48507

(Address of Principal Executive Offices)  (Zip Code)

 

(888) 720-4450

(Registrant’s Telephone Number, Including Area Code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see  General Instruction A.2. below):

 

o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company  o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o  

 

 

 



 

Item 2.02               Results of Operations and Financial Condition.

 

On August 7, 2017, Diplomat Pharmacy, Inc. (the “Company”) publicly announced its financial results for the second quarter ended June 30, 2017.  A copy of the Company’s news release is attached hereto as Exhibit 99.1 and is incorporated herein by reference. The information in this Item 2.02 and the attached exhibit shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor shall they be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act except as shall be expressly stated by specific reference in such filing.

 

Item 5.02                                  Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Appointment of Joel Saban and Employment Agreement

 

On August 7, 2017, the Company appointed Joel Saban to serve as the Company’s President, effective August 7, 2017.  Prior to joining the Company, Mr. Saban, age 50,  served as the Executive Vice President, Pharmacy Operations at Catamaran Corp. from June 2010  until January 2016 overseeing a staff of approximately 3,200 employees of Catamaran Corp.’s retail, mail and specialty operations, as well as cost of goods contracting and vendor relations. Prior to joining Catamaran Corp., Mr. Saban was the Senior Vice President of Industry Relations at CVS/Caremark Corporation from 1997 until 2010 where he was responsible for directing brand pharmaceutical industry relations including contract negotiations and administration, financial analysis, and strategic business development, as well as evaluating opportunities, analyzing contract profitability and ensuring that contracts met company business objectives in the pharmaceutical and retail areas. Previously, Mr. Saban also served as Director of Medical and Scientific Affairs for the Alzheimer’s Association. Mr. Saban is a member of the Academy of Managed Care Pharmacy and the Pharmaceutical Care Management Association.

 

On August 7, 2017, the Company and Mr. Saban entered into an employment agreement, effective August 7, 2017 (the “Saban Effective Date”) which provides that Mr. Saban will serve as President of the Company for an initial term of two years, and automatically extends for successive one-year periods unless either party gives at least 90 days’ notice prior to the end of the then existing term.

 

Mr. Saban’s base salary is $450,000 which amount will be reviewed at least annually and may be adjusted by the Company’s Board of Directors or the Compensation Committee (as appropriate, the “Administrator”), at its discretion.  He will be eligible for an annual cash bonus with a target amount of not less than 60% of his annual base salary (pro rata for 2017) pursuant to the terms and conditions of programs generally applicable to senior executive officers of the Company.  In addition, Mr. Saban is eligible for equity compensation beginning in 2018 at a target amount of not less than 100% of his annual base salary pursuant to the terms and conditions of then-existing equity compensation programs of the Company generally applicable to senior executive officers of the Company.  Mr. Saban also will be entitled to participate with other senior executive officers in any of the Company’s employee fringe benefit plans and he will be reimbursed for certain business expenses.

 

The employment agreement provides for certain benefits upon termination of Mr. Saban’s employment under certain circumstances, including a change of control of the Company, as defined therein.  If Mr. Saban’s employment is terminated by reason of death or disability, by the Company for cause or by Mr. Saban without good reason (in each case as defined in the employment agreement), Mr. Saban will receive earned but unpaid base salary through the termination date and any unpaid annual bonus for any completed fiscal year preceding the date of termination (excluding termination for cause), plus any amounts specifically provided for under the Company’s employee benefit plans or as otherwise expressly required by applicable law (the “Accrued Benefits”).  If Mr. Saban is terminated by the Company other than for cause, or by Mr. Saban for good reason, Mr. Saban will receive a severance payment equal to twelve months of his annual base salary and the Accrued Benefits, as well as reimbursement for certain health insurance coverage (the “COBRA Benefits”).  If, within one year following a change in control (as defined in the Company’s 2014 Omnibus Incentive Plan), Mr. Saban is terminated by the Company other than for cause, or Mr. Saban terminates for good reason, Mr. Saban will receive (i) the COBRA

 

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Benefits, (ii) 12 months of his annual base salary and the greater of his target bonus and annual equity incentive compensation for the current year and the average annual bonus annual equity compensation paid to him for the prior three full years (or any shorter period during which the he has been employed by the Company), payable in four equal quarterly installments during the one-year severance period, and (iii) the Accrued Benefits.  In addition, in the case of any termination, Mr. Saban’s rights with respect to any Company equity awards will be governed by the terms and provisions of the applicable plans and award agreements.

 

Mr. Saban’s bonus or incentive compensation is subject to clawback by the Company if the Company’s Board of Directors or a committee thereof determines that any fraud, negligence, or intentional misconduct by Mr. Saban is a significant contributing factor to the Company having to restate all or a portion of its financial statements and certain other specified conditions are satisfied.  The employment agreement contains customary confidentiality terms, as well as non-solicitation and non-competition provisions effective from the Saban Effective Date until the first anniversary following the termination date. If Mr. Saban violates any of the foregoing, the Company’s payment obligations under the employment agreement, including any severance payments, cease.  In addition, Mr. Saban must sign a general form of release of claims against the Company in order to be eligible for severance.

 

The foregoing summary is qualified in its entirety by reference to the employment agreement attached hereto as Exhibit 10.1 and incorporated herein by reference.

 

On August 7, 2017, the Board of Directors of the Company also approved the grant to Mr. Saban of options to purchase 200,000 of the Company’s common shares, at an exercise price equal to the closing price of the Company’s common stock on August 10, 2017, the grant date, with such options vesting in equal annual installments over a four-year period.

 

Resignation of Paul Urick and Separation and Release Agreement

 

On August 7, 2017, the Company accepted the resignation of Paul Urick as the Company’s President.

 

On August 7, 2017, the Company and Mr. Urick entered into a separation and release agreement that sets forth the terms on which Mr. Urick will resign as President of the Company and will provide certain transition services (as defined in the separation and release agreement) until November 7, 2017 (the “Urick Effective Date”) during which he will continue to receive his annual base salary to be paid in accordance with the Company’s normal payroll practices and shall be entitled to participate in any of the Company’s employee fringe benefit plans.

 

The separation and release agreement provides for a severance benefit of $212,500 to be paid in equal installments over six months from the Urick Effective Date, as well as reimbursement for certain health insurance coverage for a period of six months following the Urick Effective Date. All unvested options of Mr. Urick will terminate immediately following the Urick Effective Date.  The vested options held by Mr. Urick will be exercisable for a period of 90 days following the Urick Effective Date.

 

The separation and release agreement further contains a general release of any claims for the benefit of the Company.

 

The foregoing summary is qualified in its entirety by reference to the separation and release agreement attached hereto as Exhibit 10.2 and incorporated herein by reference.

 

A copy of the Company’s news release announcing the foregoing matters is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

 

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Item 9.01               Financial Statements and Exhibits.

 

(d)            Exhibits

 

Exhibit No.

 

Description

 

 

 

10.1

 

Employment Agreement, dated August 7, 2017, by and between the Company and Joel Saban

 

 

 

10.2

 

Separation and Release Agreement, dated August 7, 2017, by and between the Company and Paul Urick

 

 

 

99.1

 

Company news release dated August 7, 2017

 

 

 

99.2

 

Company news release dated August 7, 2017

 

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

Diplomat Pharmacy, Inc.

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Philip R. Hagerman

 

 

Chief Executive Officer

 

Date: August 7, 2017

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

10.1

 

Employment Agreement, dated August 7, 2017, by and between the Company and Joel Saban

 

 

 

10.2

 

Separation and Release Agreement, dated August 7, 2017, by and between the Company and Paul Urick

 

 

 

99.1

 

Company news release dated August 7, 2017

 

 

 

99.2

 

Company news release dated August 7, 2017

 

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Exhibit 10.1

 

EMPLOYMENT AGREEMENT

 

This Employment Agreement (this “ Agreement ”) is made as of August 7, 2017, between Diplomat Pharmacy, Inc., a Michigan corporation (the “ Company ”), and Joel Saban (“ Employee ”).

 

WHEREAS, the Company wishes to hire Employee as its President and Employee wishes to accept employment with the Company under the terms and conditions set forth herein; and

 

WHEREAS, as a condition to the employment of Employee with the Company, Employee is required to enter into this Agreement and to grant the covenants contained herein.

 

NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.            Employment .  The Company shall employ Employee as its President, and Employee hereby accepts employment with the Company in such position, upon the terms and conditions set forth in this Agreement for the period beginning on August   , 2017 (the “ Effective Date ”) and ending as provided in Section 5 hereof (the “ Employment Period ”).

 

2.            Definitions .  For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)            Administrator” shall mean the Board or the Compensation Committee of the Board, consistent with Company policies and procedures in place from time to time.

 

(b)            Affiliate ” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

 

(c)            Board ” shall mean the board of directors of the Company.

 

(d)            Cause ” shall mean the Company’s good faith determination that one or more of the following has occurred with respect to the Employee: (1) the conviction (including conviction upon a plea of nolo contendere) of a felony or other crime which is punishable by imprisonment, (2) the commission of any act or omission involving dishonesty, fraud, or a violation of law with respect to the Company or any of its Subsidiaries or Affiliates, (3) reporting to work under the influence of alcohol or illegal drugs, the use of illegal drugs (whether or not at the workplace) or other conduct causing the Company or any of its Subsidiaries or Affiliates material public disgrace, disrepute or economic harm, (4) breach of fiduciary duty, fraud or willful misconduct with respect to the Company and/or any of its Subsidiaries or Affiliates, or (5) any material breach of this Agreement or the Company’s policies and procedures by Employee unless remedied by Employee within thirty (30) days after receipt of written notice of such breach given by the Company to Employee.  A termination of Employee’s employment for Cause shall be effected in accordance with the following procedures.  The Company shall give Employee written notice (“ Notice of Termination for Cause ”) of its intention to terminate Employee’s employment for Cause, setting forth in reasonable detail the specific conduct of Employee that it considers to constitute Cause and the specific provision(s) of this Agreement on which it relies, and stating the date, time and place of the Board Meeting for Cause.  The Board Meeting for Cause ” means a meeting of the Board at which Employee’s termination for Cause will be considered, that takes place not less than ten

 



 

(10) and not more than twenty (20) business days after Employee received the Notice of Termination for Cause.  Employee shall be given an opportunity, together with counsel, to be heard at the Board Meeting for Cause.  Employee’s termination for Cause shall be effective when and if a resolution is duly adopted at the Board Meeting for Cause by a two-thirds vote of the entire membership of the Board, stating that in the good faith opinion of the Board, the Employee engaged in the conduct described in the Notice of Termination for Cause, and that such conduct constitutes Cause under this Agreement.

 

(e)            Disability ” shall mean Employee’s inability to perform the essential functions of Employee’s position with the Company, with or without reasonable accommodations by the Company, for a period of 90 consecutive days or 120 days in any 365 day period.

 

(f)             Good Reason ” means the occurrence of any of the following without Employee’s written consent: (1) a material adverse change in Employee’s title, duties or responsibilities in a manner that is materially inconsistent with the position he holds; (2) a material reduction in Employee’s Base Salary, target Annual Bonus opportunity or target annual equity compensation; (3) a material breach by the Company of its obligations, covenants or agreements under this Agreement; and (4) a requirement that Employee relocate his principal business office or principal residence outside of the Chicago metropolitan area.  The Company and Employee agree that “Good Reason” shall not exist unless and until Employee provides the Company with written notice of the acts alleged to constitute Good Reason within thirty (30) days of Employee’s knowledge of the occurrence of such event, and the Company fails to cure such acts within thirty (30) days of receipt of such notice, if curable.  Employee must terminate his employment within thirty (30) days following the expiration of such cure period for the termination to be on account of Good Reason.

 

(g)             “ Person ” means an individual, corporation, limited liability company, partnership, joint venture, association, trust, governmental entity, unincorporated organization or other entity.

 

(h)            Subsidiaries ” means, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which (1) if a corporation, a majority of the economic interests or total voting power of shares of stock entitled to vote (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (2) if a partnership, limited liability company, association or other business entity, either (A) a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof, or (B) such Person is a general partner, managing member or managing director of such partnership, limited liability company, association or other entity.

 

3.            Position and Duties .

 

(a)            During the Employment Period, Employee shall serve as President and shall have such duties and responsibilities as are assigned to the Employee by the Board and the Chief Executive Officer consistent with the Employee’s position as President of the Company.

 

(b)            During the Employment Period, Employee shall, at all times, devote the substantial majority of Employee’s working time, attention, energies, efforts and skills to the business and affairs of the Company and shall not, directly or indirectly, engage in any other business activity, whether or not for profit, gain or other pecuniary advantages, without the express written permission of the Board.  Employee shall perform Employee’s duties, responsibilities and functions to the Company hereunder to

 

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the best of Employee’s abilities in good faith and shall comply with all Company policies, rules and procedures.  In performing Employee’s duties and exercising Employee’s authority under this Agreement, Employee shall support and implement the reasonable and lawful business and strategic plans approved from time to time by the Board.

 

4.            Compensation and Benefits .

 

(a)            During the Employment Period, Employee’s shall receive an initial annual base salary (the “ Annual Base Salary ”) of $450,000.00, which shall be paid in accordance with the Company’s normal payroll practices for senior executive officers of the Company as in effect from time to time.  During the Employment Period, the Annual Base Salary shall be reviewed at least annually, and may be increased by the Administrator.  The term “Annual Base Salary” as utilized in this Agreement shall refer to the Annual Base Salary as so increased.

 

(b)            Employee shall be eligible for an annual cash bonus (the “ Annual Bonus ”) for each fiscal year of the Company during the term of his employment, with a target amount of not less than 60% of Employee’s Annual Base Salary (pro-rated, in the case of the Annual Bonus for 2017 fiscal year, for the period beginning on the Effective Date and ending December 31, 2017), with such actual amount to be determined consistent with the bonus plan in effect for other senior executive officers of the Company, on substantially the same terms and conditions as generally apply to such other officers, except that the size of the awards made to the Employee shall reflect the Employee’s position with the Company and such other factors as the Administrator reasonably determines from time to time.  For the Company’s 2018 fiscal year and each fiscal year of the Company thereafter, the performance metrics applicable to the Annual Bonus shall be determined by the Administrator, with input from the Employee.  Each such Annual Bonus awarded to the Employee shall be paid sometime during the first one hundred twenty (120) days of the fiscal year next following the fiscal year for which the Annual Bonus is awarded.

 

(c)            Beginning with the Company’s fiscal year commencing January 1, 2018 and for each subsequent fiscal year during Employee’s employment, the Employee shall be eligible for annual equity compensation targeted at not less than 100% of the Annual Base Salary under any stock option, performance share, restricted stock unit or other equity based long-term incentive compensation plan, program or arrangement (the “ Plans ”) generally made available to senior executive officers of the Company on substantially the same terms and conditions as generally apply to equity awards to the other senior executive officers of the Company, except that the size of the awards made to the Employee shall reflect the Employee’s position with the Company and such other factors as the Administrator reasonably determines from time to time.

 

(d)            In addition to the annual equity awards described in Section 4(c)  hereof, on the  third trading day following the Company’s next earnings release, the Employee shall be granted a stock option to purchase 200,000 shares of the Company’s common stock at an exercise price equal to the fair market value of a share of the Company’s common stock on the grant date (the “Initial Option”).  The Initial Option shall vest in equal annual installments over a period of four years.  The definitive terms of the Initial Option shall be set forth in a stock option agreement to be executed by and between the Company and Employee in substantially the form attached hereto as Exhibit A.

 

(e)            During the Employment Period, Employee shall receive such perquisites and fringe benefits and participate in all of the Company’s employee benefit programs and/or plans for which senior executive employees of the Company are generally eligible in accordance with the policies of the Company in effect from time to time, including, without limitation, 200 hours of PTO annually and three floating holidays (pro-rated for the initial year of employment).

 

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(f)             During the Employment Period, the Company shall reimburse Employee for all reasonable out-of-pocket business expenses incurred by Employee in the course of performing Employee’s duties and responsibilities under this Agreement which are consistent with the Company’s policies, in effect from time to time, with respect to travel, entertainment and other business expenses, subject to the Company’s regular requirements with respect to reporting and documentation of such expenses.  During the Employment Period, the Company shall provide the Employee with a cell phone allowance of not less than $780 per year and a bi-weekly vehicle allowance of not less than $370.

 

(g)            If the Board, or an appropriate committee thereof, reasonably and in good faith, determines that any fraud, negligence, or intentional misconduct by the Employee is a significant contributing factor to the Company having to restate all or a portion of its financial statements, the Board or committee may require reimbursement of any bonus or incentive compensation paid to the Employee if and to the extent that (i) the amount of incentive compensation was calculated based upon the achievement of certain financial results that were subsequently reduced due to a restatement, (ii) the Employee engaged in any fraud or misconduct that caused or significantly contributed to the need for the restatement, and (iii) the amount of the bonus or incentive compensation that would have been awarded to the Employee had the financial results been properly reported would have been lower than the amount actually awarded.

 

5.            Term .  Employee’s employment with the Company will commence on the Effective Date and, subject to Section 6 , will continue until the second anniversary of the Effective Date (the “ Initial Term ”).  Following the Initial Term, the Employment Period will be automatically renewed for successive one-year periods, unless (i) otherwise terminated as set forth in Section 6(a)  of this Agreement, or (ii) the Company or Employee, as the case may be, sends the other party a written notice of non-renewal at least 90 days prior to the expiration of the Initial Term or any successive anniversary date thereof, as applicable.  The initial term of this Agreement, as it may be extended thereafter, is herein referred to as the “ Term .”  Notwithstanding anything contained in this Agreement to the contrary, the parties acknowledge and agree that Employee’s employment with the Company is on an at-will basis.

 

6.            Termination of Employment .

 

(a)            Termination .  Except for certain continuing obligations which the parties expressly agree survive termination, including, without limitation, Sections 6(d) , 7 , and 8 below, this Agreement and the Employment Period will terminate upon one of the following reasons:

 

(i)             Employee’s death or Disability;

 

(ii)            the termination by the Company at any time for Cause;

 

(iii)           the termination by the Company at any time without Cause;

 

(iv)           the resignation by Employee with Good Reason;

 

(v)            the resignation by Employee without Good Reason; and

 

(vi)           the non-renewal of this Agreement by any party as contemplated pursuant to Section 5 .

 

(b)            Effect of Termination .  Except as otherwise expressly provided herein, all of Employee’s rights to salary, bonuses, employee benefits and other compensation hereunder which would have accrued or become payable after the termination of the Employment Period shall cease upon such

 

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termination, other than those expressly required under applicable law.  In all cases of termination set forth above in Section 6(a) : (i) Employee agrees to return to the Company and/or its Affiliates, as applicable, any business equipment (including but not limited to credit cards, computers, printers, fax machines and telephones) or other Company property that Employee may have received from the Company or any Affiliate of the Company for use during Employee’s employment; and (ii) Employee will be deemed to have automatically resigned, effective as of the termination date, from any and all positions Employee holds as an officer, director, manager, and/or as a member of any governing body (or a committee thereof) of the Company or its Affiliates.

 

(c)            Termination other than without Cause, Resignation with Good Reason or Company Election Not to Renew .

 

(i)               If the Employment Period is terminated for any reason other than pursuant to Section 6(a)(iii) , Section 6(a)(iv)  or the Company’s election not to renew the Agreement pursuant to Section 6(a)(vi)  above, Employee shall only be entitled to receive (1) Employee’s Base Salary that has accrued through the date of termination of the Employment Period and (2) any unpaid Annual Bonus (payable at such time as bonuses are paid to similarly situated executives) for any completed fiscal year of the Company preceding the date of termination, provided that any unpaid Annual Bonus shall not be paid if termination is pursuant to Section 6(a)(ii) , and shall not be entitled to any other salary, compensation or benefits from the Company or its Affiliates thereafter, except as otherwise specifically provided for under the Company’s employee benefit plans or as otherwise expressly required by applicable law (the “ Accrued Benefits ”); and

 

(ii)              The Employee’s rights with respect to any stock options, restricted stock units and/or other equity awards granted to the Employee by the Company shall be governed by the terms and provisions of the plans (including plan rules) and award agreements pursuant to which such stock options and equity awards were awarded, as in effect at the date the Employee’s employment terminated.

 

(d)            Termination without Cause, Resignation with Good Reason or by the Company’s Election Not to Renew .

 

(i)             If the Employment Period is terminated pursuant to Section 6(a)(iii), Section 6(a)(iv ) or as the result of the Company’s election not to renew the Agreement pursuant to Section 6(a)(vi)  above, then subject to compliance with Section 6(i)  below, in addition to the Accrued Benefits, the Company shall pay to Employee an amount equal to  twelve (12) months of Employee’s then current Base Salary, payable over a period of twelve (12) months (the “ Severance Period ”) in substantially equal installments in accordance with the Company’s regular payroll policies as if Employee’s employment had not ended (collectively, the “ Severance Payments ”).  Subject to compliance with Section 6(i)  below, the Severance Payments will commence on the first payroll date following the 30-day anniversary of the termination date, with the first payment including such amounts as would have otherwise been paid during such 30-day period.  In addition, if the Employee timely elects COBRA continuation coverage, the Employee shall pay and the Company shall reimburse Employee for such health insurance coverage through the applicable Severance Period at the same rate as it pays for health insurance coverage for its active employees (with the Employee required to pay for any employee-paid portion of such coverage) (such amounts to be referred to herein as the “ COBRA Benefits ”). To receive

 

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reimbursement, Employee shall submit an invoice to: Diplomat Pharmacy, Inc. Attn: Vice President of Human Resources, 4100 S. Saginaw, Flint, MI 48507.

 

(ii)            the Employee’s rights with respect to any stock options, restricted stock units and/or other equity awards granted to the Employee by the Company shall be governed by the terms and provisions of the plans (including plan rules) and award agreements pursuant to which such stock options and equity awards were awarded, as in effect at the date the Employee’s employment terminated.

 

(iii)           Notwithstanding any other payment date or schedule provided in this Agreement to the contrary (including but not limited to such payment dates or schedules set forth in Section 6(d)(iv)  below), if the Employee is deemed on the termination date of the Employee’s employment to be a “specified employee” within the meaning of that term under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations thereunder (“ Section 409A ”), then each of the following shall apply:

 

(A)           With regard to any payment that is considered “nonqualified deferred compensation” under Section 409A and payable on account of and within six months after a “separation from service” (within the meaning of Section 409A and as provided in Section 6(h)  of this Agreement), such payment shall instead be made on the date which is the earlier of (1) the expiration of the six (6)-month period measured from the date of the Employee’s “separation from service,” and (2) the date of the Employee’s death (the “ Delay Period ”) to the extent required under Section 409A.  Upon the expiration of the Delay Period, all payments delayed pursuant to this Section 6(d)  (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid to the Employee in a lump sum, and all remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein; and

 

(B)           To the extent that benefits to be provided during the Delay Period are considered “nonqualified deferred compensation” under Section 409A provided on account of a “separation from service,” the Employee shall pay the cost of such benefits during the Delay Period, and the Company shall reimburse the Employee, to the extent that such costs would otherwise have been paid or reimbursed by the Company or to the extent that such benefits would otherwise have been provided by the Company at no cost to the Employee, for the Company’s share of the cost of such benefits upon expiration of the Delay Period, and any remaining benefits shall be paid, reimbursed or provided by the Company in accordance with the procedures specified herein.

 

The foregoing provisions of this Section 6(d)(iii)  shall not apply to any payments or benefits that are excluded from the definition of “nonqualified deferred compensation” under Section 409A, including, without limitation, payments excluded from the definition of “nonqualified deferred compensation” on account of being separation pay due to an involuntary separation from service under Treasury Regulation 1.409A-1(b)(9)(iii) or on account of being a “short-term deferral” under Treasury Regulation 1.409A-1(b)(4).

 

(iv)           If, during the Employment Period and within one (1) year after a Change in Control, as defined in the Company’s 2014 Omnibus Incentive Plan, or any successor plan thereto, the Employment Period is terminated pursuant to Section 6(a)(iii) , Section 6(a)(iv), or as the result of the Company’s election not to renew the Agreement pursuant to Section 6(a)(vi)  above, then:

 

(A)           the Company shall, in addition to the COBRA Benefits, pay to the Employee the aggregate of the amount equal to (x) the Annual Base Salary, and (y) the greater of the target Annual Bonus and the equity incentive compensation awards for the then current fiscal year under the Plans or any successor annual bonus plan and the average Annual Bonus and annual equity incentive

 

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compensation awards paid to or for the benefit of the Employee for the prior three (3) full years (or any shorter period during which the Employee has been employed by the Company); and the Company shall provide the Employee the Accrued Benefits, and

 

(B)           the Employee’s rights with respect to any stock options, restricted stock units and/or other equity awards granted to the Employee by the Company shall be governed by the terms and provisions of the plans (including plan rules) and award agreements pursuant to which such stock options and equity awards were awarded, as in effect at the date the Employee’s employment terminated.

 

(C)           The amounts due under Section 6(d)(iv)(A)  above shall be payable in equal quarterly installments over a period of one year, beginning on the 3-month anniversary of termination and continuing every 90 days thereafter (collectively, the “ CIC Severance Payments ”), with such payments subject to compliance with Section 6(i)  below.

 

(v)            If any payment or benefit (including payments and benefits pursuant to this Agreement) the Employee would receive in connection with a Change in Control from the Company or otherwise (the “ Payment ”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this paragraph, be subject to the excise tax imposed by Section 4999 of the Code (the “ Excise Tax ”), then the Company shall cause to be determined, before any amounts of the Payment are paid to the Employee, which of the following two alternative forms of payment shall be paid to the Employee: (A) payment in full of the entire amount of the Payment (a “ Full Payment ”), or (B) payment of only a part of the Payment so that Employee receives the largest payment possible without the imposition of the Excise Tax (a “ Reduced Payment ”).  A Full Payment shall be made in the event that the amount received by the Employee on a net after-tax basis is greater than what would be received by the Employee on a net after-tax basis if the Reduced Payment were made, otherwise a Reduced Payment shall be made.  If a Reduced Payment is made, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and the Employee shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in payments and/or benefits shall occur in the following order: (A) reduction of cash payments (in the reverse chronological order in which such cash would otherwise be paid); (B) cancellation of accelerated vesting of equity awards other than stock options (in the reverse chronological order in which such benefits would otherwise be provided); (C) cancellation of accelerated vesting of stock options (in the reverse chronological order in which such benefits would otherwise be provided); and (D) reduction of other benefits paid to Employee (in the reverse chronological order in which such benefits would otherwise be provided).

 

(e)            The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control, or a nationally recognized law firm, shall make all determinations required to be made under Section 6(d)(v) .  If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized law firm or independent registered public accounting firm to make the determinations required hereunder.  The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm or law firm required to be made hereunder.

 

(f)             The independent registered public accounting firm or law firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Employee within fifteen (15) calendar days after the date on which Employee’s right to a Payment is triggered (if requested at that time by the Company or Employee) or such other time as requested by the Company or Employee.  Any good faith determinations of the

 

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accounting firm or law firm made hereunder shall be final, binding and conclusive upon the Company and Employee.

 

(g)            Conflict with Plans.   As permitted under the terms of the applicable Plans, the Company and the Employee agree that the definitions of Cause or Good Reason set forth in this Agreement shall apply in place of any similar definition or comparable concept applicable under the Plans (or any similar definition in any successor plan).

 

(h)            Section 409A.    It is intended that payments and benefits under this Agreement either be excluded from or comply with the requirements of Section 409A and the guidance issued thereunder and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted consistent with such intent.  In the event that any provision of this Agreement is subject to but fails to comply with Section 409A, the Company may revise the terms of the provision to correct such noncompliance to the extent permitted under any guidance, procedure or other method promulgated by the Internal Revenue Service now or in the future or otherwise available that provides for such correction as a means to avoid or mitigate any taxes, interest or penalties that would otherwise be incurred by the Employee on account of such noncompliance.  Provided, however, that in no event whatsoever shall the Company be liable for any additional tax, interest or penalty imposed upon or other detriment suffered by the Employee under Section 409A or damages for failing to comply with Section 409A.  Solely for purposes of determining the time and form of payments due the Employee under this Agreement (including any payments due under Section 6(d) ) or otherwise in connection with the Employee’s termination of employment with the Company, the Employee shall not be deemed to have incurred a termination of employment unless and until the Employee shall incur a “separation from service” within the meaning of Section 409A.  The parties agree, as permitted in accordance with the final regulations thereunder, a “separation from service” shall occur when the Employee and the Company reasonably anticipate that the Employee’s level of bona fide services for the Company (whether as an employee or an independent contractor) will permanently decrease to no more than forty (40) percent of the average level of bona fide services performed by the Employee for the Company over the immediately preceding thirty six (36) months.  The determination of whether and when a separation from service has occurred shall be made in accordance with this subparagraph and in a manner consistent with Treasury Regulation Section 1.409A-1(h).  All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (i) any reimbursement is for expenses incurred during the Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement (and the in-kind benefits to be provided) during a calendar year may not affect the expenses eligible for reimbursement (and the in-kind benefits to be provided) in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement (or in-kind benefits) is not subject to set off or liquidation or exchange for any other benefit.  For purposes of Section 409A, the Employee’s right to any installment payments under this Agreement shall be treated as a right to receive a series of separate and distinct payments.  Whenever a payment under this Agreement specifies a payment period with reference to a number of days ( e.g. , “payment shall be made within ninety (90) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

 

(i)             Conditions to Severance Payments .  To be eligible for Severance Payments, Employee must meet the following conditions:

 

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(i)             Within thirty (30) days following termination, Employee must return and continue to honor, an executed and irrevocable employment separation and release, in substantially the form attached hereto as Exhibit B (the “ Release ”); and

 

(ii)            Employee must remain in compliance with Employee’s obligations under the Release, Sections 7 through 9 of this Agreement, and any other agreements between the Employee and the Company or its Affiliates or Subsidiaries.

 

Should Employee materially fail to comply with this Section, Employee shall receive no further benefits under this Agreement.

 

7.            Confidentiality; Non-Competition; Non-Solicitation; Non-Disparagement .

 

(a)            Employee acknowledges that the information, observations and data obtained by Employee while employed by the Company (prior to or after the date hereof) concerning the business or affairs of the Company or any of its Affiliates, including, without limitation, trade secrets, customer information, pricing information, financial plans, business plans, business concepts, supplier information, know-how and intellectual property and materials related thereto (the “ Confidential Information ”) shall be the property of the Company or such Affiliate.  Confidential Information shall not include information known to Employee prior to Employee’s employment with the Company, or information generally known in the industry.  Therefore, Employee agrees that Employee shall not disclose to any unauthorized person or use for Employee’s own purposes any Confidential Information without the prior written consent of the Board, unless and to the extent that the disclosure of Confidential Information is made in response to a valid order of a court or other governmental body, or was otherwise required by law; provided , that, in such case, Employee shall be required to provide the Company prompt advance notice of any such disclosure and shall use commercially reasonable efforts to limit the extent of such disclosure.  Employee shall deliver to the Company at the termination of the Employment Period, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Information, Work Product (as defined below) or the business of the Company or any Affiliate which Employee may then possess or have under Employee’s control, whether physical or electronic, without retaining any copies of such materials.

 

(b)            Employee acknowledges that during Employee’s employment with the Company Employee will become familiar with the Company’s trade secrets and with other Confidential Information concerning the Company and its Affiliates and that Employee’s services shall be of special, unique and extraordinary value to the Company and its Affiliates.  Employee further acknowledges and agrees that the Company and its Affiliates would be irreparably damaged if Employee were to provide services to any Person competing with the Company or engaged in a similar business and that such competition by Employee would result in a significant loss of goodwill by the Company.  Therefore, in further consideration of the compensation to be paid to Employee hereunder and any other consideration paid to Employee under any other agreement with the Company, Employee agrees that during the period commencing on the date hereof and ending on the first anniversary of the date of termination of the Employment Period, Employee shall not, directly or indirectly, engage in Competition (as defined below).  The Employee shall be deemed to be engaging in “ Competition ” if he, directly or indirectly, anywhere in the continental United States where the Company conducts business or has plans to conduct business, owns, manages, operates, controls or participates in the ownership, management, operation or control of or is connected as an officer, employee, partner, director, consultant or otherwise with, or has any financial interest in, any business (whether through a corporation or other entity) engaged in any business activity that competes with one or more of the principal lines of business conducted by the Company or

 

9



 

its Affiliates.  Ownership for personal investment purposes only of less than 2% of the voting stock of any publicly held corporation shall not constitute a violation hereof.

 

(c)            In further consideration of the compensation to be paid to Employee as described in Section 7(b)  above, for so long as Employee has continuing obligations under Section 7(b)  above, Employee shall not, directly or indirectly through another Person, (i) induce or attempt to induce any employee or consultant of the Company or any of its Affiliates to leave the employ or services of the Company or any of its Affiliates, or in any way interfere with the relationship between the Company or any of its Affiliates and any employee or consultant thereof, or (ii) solicit any customer of the Company or any of its Affiliates to provide products or services that compete with those offered (or for which there are specific plans to offer) by the Company or any of its Affiliates, to induce such customer to cease doing business with, or reduce the amount of business conducted with, the Company or its Affiliates, or in any way interfere with the relationship between any such customer and the Company or any of its Affiliates.

 

(d)            In further consideration of the compensation to be paid to Employee as described in Section 7(b)  above, for so long as Employee has continuing obligations under Section 7(b)  above, (1) Employee shall not, in any communications with the press or other media or any communications with any customer, client, supplier or other current or prospective business relations of the other party, criticize, ridicule or make any statement which disparages or is derogatory to the Company, any of its Affiliates, or any of their directors, officers, or executives and (2) the Company shall use its best efforts to ensure that the members of its Board and its senior executive officers do not make any statements which disparage or are derogatory with respect to Employee.

 

(e)            If, at the time of enforcement of the covenants contained in this Section 7 (the “ Restrictive Covenants ”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law.

 

(f)             If Employee breaches any of the Restrictive Covenants, the Company shall, in addition to, and not in lieu of, any other rights and remedies available to the Company at law or in equity, have the right to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction (without posting a bond), it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the Company and its Affiliates and that money damages would not provide an adequate remedy to the Company.  In the event of any breach or violation by Employee of any of the Restrictive Covenants, the time period of such covenant with respect to such Person shall be tolled until such breach or violation is resolved.

 

8.            Inventions and Patents .  Employee acknowledges that all discoveries, concepts, ideas, inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, patent applications, copyrightable work and mask work (whether or not including any Confidential Information) and all registrations or applications related thereto, all other proprietary information and all similar or related information (whether or not patentable) which relate to the Company’s or any of its Affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by Employee (whether alone or jointly with others) while employed by the Company or any of its Affiliates, whether before or after the date of this Agreement (“ Work Product ”), belong to the Company or such Affiliate and Employee hereby assigns, and agrees to assign, all of the above Work Product to the Company or such Affiliate.

 

10



 

9.            Employee’s Representations .  Employee hereby represents and warrants to the Company that (i) the execution, delivery and performance of this Agreement by Employee does not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Employee is a party or by which Employee is bound, (ii) Employee is not a party to or bound by any employment agreement, noncompete agreement or confidentiality agreement with any other Person or entity (other than such agreements that are being terminated hereby pursuant to Section 25 ), and (iii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Employee, enforceable in accordance with its terms.  Employee hereby acknowledges and represents that Employee has consulted with independent legal counsel regarding Employee’s rights and obligations under this Agreement and that Employee fully understands the terms and conditions contained herein.

 

10.         Survival Sections 6 through 25, 27 and 28 shall continue to be in full force following the termination of the Employment Period.

 

11.         Notices .  All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if delivered in writing in person or by telecopy (or similar electronic means with a copy following by nationally recognized overnight courier) or sent by nationally-recognized overnight courier or first class registered or certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or at such other address as may hereafter be designated in writing by such party to the other parties.

 

Notices to Employee :

 

Joel Saban

2205 Avalon Drive

Buffalo Grove, Illinois 60089

 

Notices to the Company :

 

Diplomat Pharmacy, Inc.

4100 South Saginaw

Flint, MI 48507

Attn:        General Counsel

 

or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.  Any notice under this Agreement shall be deemed to have been given when so delivered, sent or mailed.

 

12.         Severability .  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be construed and enforced in such jurisdiction to the maximum extent permitted by law.

 

13.         Complete Agreement .  This Agreement embodies the complete agreement and understanding among the parties with respect to the subject matter hereof and supersedes and preempts all prior understandings, agreements or representations by or among the parties or any Affiliate of the Company and Employee, written or oral, which may have related to the subject matter hereof in any way.

 

11



 

14.         No Strict Construction .  The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.

 

15.         Counterparts .  This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement.  Facsimile counterpart signatures to this Agreement shall be binding and enforceable.

 

16.         Assignment .  Employee may not assign any of its rights or delegate any of Employee’s performance under this Agreement, except with the prior written consent of the Company (as approved by the Board and evidenced by a written consent), which may be withheld in the Company’s sole discretion.  The Company may assign this Agreement to any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company.  Any purported assignment of rights or delegation of performance by Employee in violation of this Section is void.

 

17.         Choice of Law .  All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Michigan, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Michigan, or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the state or federal courts located in Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.  The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such court and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.

 

18.         Amendment and Waiver .  The provisions of this Agreement may be amended or waived only with the prior written consent of the Company (as approved by the Board and evidenced by a written consent) and Employee, and no course of conduct or course of dealing or failure or delay by any party hereto in enforcing or exercising any of the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.

 

19.         Insurance .  The Company may, at its discretion, apply for and procure in its own name and for its own benefit life and/or disability insurance on Employee in any amount or amounts considered advisable.  Employee agrees to cooperate in any medical or other examination, supply any information and execute and deliver any applications or other instruments in writing as may be reasonably necessary to obtain and constitute such insurance.

 

20.         Taxes and Withholdings .  All payments made under this Agreement shall be made less applicable taxes and withholdings.  Notwithstanding any provision herein to the contrary, the Company makes no representations concerning Employee’s tax consequences under the Agreement under Section 409A, or any other federal, state, or local tax law.  Employee’s tax consequences will depend, in part, upon the application of relevant tax law, including Section 409A, to the relevant facts and circumstances.  Employee should consult a competent and independent tax advisor regarding Employee’s tax consequences under the Agreement.

 

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21.         Corporate Opportunities .  During the Employment Period, Employee shall submit to the Board all business, commercial and investment opportunities or offers presented to Employee or of which the Employee becomes aware which relate to the Company’s business at any time during the Employment Period.

 

22.         Employee’s Cooperation .  During and after the Employment Period, Employee shall cooperate with the Company and its Affiliates in any internal investigation or administrative, regulatory or judicial proceeding as reasonably requested by the Company (including, without limitation, Employee being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s request to give testimony without requiring service of a subpoena or other legal process, volunteering to the Company all pertinent information and turning over to the Company all relevant documents which are or may come into Employee’s possession, all at times and on schedules that are reasonably consistent with Employee’s other permitted activities and commitments).  If the Company requires Employee’s cooperation in accordance with this Section, the Company shall reimburse Employee for reasonable out-of-pocket travel expenses (including reasonable lodging and meals, upon submission of receipts), legal fees and other reasonable expenses.

 

23.         Remedies .  Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover damages caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor.  If the Company prevails in enforcing this Agreement, it shall be entitled to recover, in addition to other damages and remedies, its costs and reasonable attorneys’ fees.  The parties hereto agree and acknowledge that money damages would not be an adequate remedy for the other party’s breach of any term or provision of this Agreement and that the other party in its sole discretion may apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.

 

24.         Third-Party Beneficiaries .  Nothing herein, expressed or implied, shall create or establish any third party beneficiary hereto nor confer upon any Person not a party to this Agreement, any rights or remedies, including without limitation, any right to employment or continued employment for any specified period, of any nature or kind whatsoever, under or by reason of this Agreement.

 

25.         Termination of Former Agreements; Release .

 

(a)            The Company and Employee hereby agree that this Agreement supersedes and replaces, in its or their entirety, all current or former agreements or contracts that Employee has or had with the Company or any of its current or former Subsidiaries or Affiliates relating in any way to Employee’s employment, compensation, or other benefits (collectively, the “ Former Agreements ”), including, without limitation, any employment letters or employment agreements.  Employee further agrees that Employee is not entitled to any severance other than as provided in this Agreement.

 

(b)            EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS READ THIS AGREEMENT AND THAT EMPLOYEE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS CONTENTS, AND THAT EMPLOYEE HEREBY EXECUTES THE SAME AND MAKES THIS AGREEMENT VOLUNTARILY AND OF EMPLOYEE’S OWN FREE WILL.

 

26.         No Offset .  Notwithstanding anything in this Agreement or in any other agreement between Employee and the Company or between Employee and any of the Company’s Affiliates to the contrary, there shall be no right of offset by the Company for any debts or obligations due to Employee by the Company or its Affiliates against any amounts due Employee hereunder.

 

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27.         Indemnification .  Employee is hereby entitled to indemnification for Employee’s acts or omissions in Employee’s capacity as an executive or officer of the Company or member of the Company’s Board to the same extent as other senior executives of the Company and in the manner provided by the Company’s bylaws.  In addition to, and notwithstanding the foregoing, the Company shall indemnify Employee within ten (10) days of the Company receiving evidence reasonably satisfactory to the Board of a liability or expense covered by this Section 27 (“ Indemnification Claim ”); provided, the Company shall have the right to assume, at its own expense, the defense of any liability or expense giving rise to the Indemnification Claim.  In addition, and notwithstanding anything to the contrary herein, the Company shall indemnify and hold Employee harmless, to the fullest extent permitted by the laws of the State of Michigan, from and against all costs, charges and expenses (including reasonable attorneys’ fees), and shall, consistent with the laws of the State of Michigan, provide for the advancement of expenses, incurred or sustained in connection with any action, suit or proceeding to which Employee or his legal representatives may be made a party by reason of Employee’s being or having been a director, officer or employee of the Company or any of its Affiliates or employee benefit plans.  The provisions of this Section 27 shall not be deemed exclusive of any other rights which Employee may have under the Company’s Certificate of Incorporation, any by-law, agreement, vote of stockholders or directors, or otherwise.  The Company shall maintain adequate Directors and Officers liability insurance coverage, which shall include Employee in his capacity as an officer and, if applicable, member of the Company’s Board.  The provisions of this Section 27 shall survive the termination of this Agreement for any reason.

 

28.         Legal Fees .  The Company shall pay Employee’s reasonable legal fees and expenses incurred in the preparation and negotiation of this Agreement and in the good faith enforcement of any of the terms of this Agreement.

 

(Signature page follows)

 

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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date first written above.

 

 

Company:

 

 

 

Diplomat Pharmacy, Inc.

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name: Philip R. Hagerman

 

 

Title: CEO

 

 

 

 

 

 

Employee:

 

 

 

 

/s/ Joel Saban

 

Joel Saban

 


 


 

Exhibit A

Form of Stock Option Agreement

 

[separately attached]

 



 

Exhibit B

Form of Release

 

In consideration for certain payments or benefits paid or granted to the undersigned (the “ [Former] Employee ”) under Section  [6(d)] of the Employment Agreement, [Former] Employee hereby executes and delivers this Release (this “ Release ”) as of the date set forth on the signature page below.

 

WHEREAS , [Former] Employee and Diplomat Pharmacy, Inc., a Michigan corporation (the “ Company ”) are parties to that certain Employment Agreement, dated as of [ · ][ · ], 2017 (the “ Employment Agreement ”); and

 

WHEREAS , [Former] Employee’s employment relationship with the Company [was] will be terminated effective as of                      , 201   (the “ Separation Date ”).

 

Now, therefore, for good and valuable consideration, the receipt and adequacy of which is acknowledged, [Former] Employee hereby agrees as follows:

 

I.                                         [Former] Employee understands that certain payments or benefits paid or granted to [Former] Employee under Section [ 6(d)] of the Employment Agreement represent, in part, consideration for signing this Release and are not salary, wages or benefits to which [Former] Employee was already entitled.  [Former] Employee understands and agrees that he will not receive certain of the payments and benefits specified in Section  [6(d)] of the Employment Agreement unless [Former] Employee executes this Release and does not revoke this Release within the time period permitted below or otherwise breach this Release.  [Former] Employee also acknowledges and represents that he has received all payments and benefits that he is entitled to receive (as of the date of this Release) by virtue of any employment by the Company.

 

II.                                    In consideration of and subject to the performance by the Company and, together with any direct or indirect subsidiaries of the Company (collectively, the “ Company Group ”), of its obligations under the Employment Agreement, [Former] Employee releases and forever discharges, as of the date of this Release, the Company Group and its affiliates and all present and former directors, managers, officers, agents, representatives, employees, successors and assigns of the Company Group and its affiliates and the Company Group’s direct or indirect owners including without limitation, Diplomat Pharmacy, Inc., a Michigan corporation and its affiliates, present and former directors, managers, officers, agents, representatives, employees, successors and assigns  (collectively, the “ Released Parties ”) to the extent provided below.  Except as provided in paragraph 0 below and except for the provisions of the Employment Agreement which expressly survive the termination of [Former] Employee’s employment by the Company, [Former] Employee knowingly and voluntarily (for himself, his heirs, executors, administrators and assigns) releases and forever discharges the Company Group and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date this Release becomes effective and enforceable) and whether known or unknown, suspected, or claimed against the Company Group or any of the Released Parties which [Former] Employee, his spouse, or any of his heirs, executors, administrators or assigns, may have against the Company (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as

 



 

amended (the “ ADEA ”) (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; or their state or local counterparts; or under any other employment-related federal, state or local civil or human rights law, or under any other employment-related local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any employment-related policies, practices or procedures of the Company or any other member of the Company Group; or any claim for wrongful discharge, employment-related breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “ Claims ”).  [Former] Employee specifically represents that he has not filed any claims, charges, complaints, suits, or other actions against the Company or any other Released Party, with any federal, state or local agency or court.  [Former] Employee further agrees that should any claims, charges, complaints, suits or other actions be filed hereafter on his behalf by any federal, state or local agency or by any other person or entity, that he will immediately withdraw with prejudice, or cause to be withdrawn with prejudice, and/or dismiss with prejudice, or cause to be dismissed with prejudice, any such claims, charges, complaints, suits, or other actions filed against the Company or any other Released Party.  [Former] Employee agrees to opt-out of any class action filed against the Company or any other Released Party.

 

III.                               [Former] Employee represents that he has made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by paragraph 0 above.

 

IV.                                [Former] Employee agrees that this Release does not waive or release any rights or claims that [Former] Employee may have under the ADEA which arise after the date he executes this Release.  [Former] Employee acknowledges and agrees that his separation from employment with the Company in compliance with the terms of the Employment Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the ADEA).

 

V.                                     [Former] Employee acknowledges that he has entered into this Release freely and without coercion, that he has been advised by the Company to consult with counsel of his choice, that [Former] Employee has had adequate opportunity to so consult, and that [Former] Employee has been given all time periods required by law to consider this Release, including but not limited to the 21-day period required by the ADEA.  [Former] Employee understands that he may execute this Release less than 21 days from its receipt from the Company, but agrees that such execution will represent his knowing waiver of such 21-day consideration period. [Former] Employee further acknowledges that within the 7-day period following his execution of this Release (the “ Revocation Period ”), [Former] Employee shall have the unilateral right to revoke this Release, and that the Company’s obligations under this Release shall become effective only upon the expiration of the Revocation Period without his revocation of this Release.  To be effective, notice of [Former] Employee’s revocation of this Release must be received by the Company on or before the last day of the Revocation Period.

 

VI.                                In signing this Release, [Former] Employee acknowledges and intends that it shall be effective as a bar to each and every one of the Claims mentioned or implied above in this Release.  [Former] Employee expressly consents that this Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state statute that expressly limits the effectiveness of a Release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims mentioned or implied above in this Release.  [Former] Employee acknowledges

 

2



 

and agrees that this waiver is an essential and material term of this Release and that without such waiver the Company would not have agreed to the terms of the Employment Agreement or this Release.  [Former] Employee further agrees that in the event he should bring a Claim seeking damages against the Company Group or any other Released Party, or in the event [Former] Employee should seek to recover against the Company Group or any other Released Party in any Claim brought by a governmental agency on his behalf, this Release shall serve as a complete defense to such Claims.  [Former] Employee has informed the Company of any pending charge or complaint of the type described in paragraph 0 as of the execution of this Release.

 

VII.                           [Former] Employee agrees that neither this Release, nor the furnishing of the consideration for this Release, shall be deemed or construed at any time to be an admission by any member of the Company Group, any Released Party or [Former] Employee of any improper or unlawful conduct.

 

VIII.                      [Former] Employee agrees that he will forfeit all amounts payable by the Company pursuant to the Employment Agreement or this Release if he challenges the validity of this Release.  [Former] Employee also agrees that if violates this Release by suing the Company Group or the other Released Parties for Claims, he will pay all costs and expenses of defending against such Claims, including reasonable attorneys’ fees, and return all payments received by [Former] Employee pursuant to this General Release.

 

IX.                                [Former] Employee agrees to reasonably cooperate with the Company Group at the Company Group’s expense in any internal investigation, any administrative, regulatory, or judicial proceeding or any dispute with a third party.  [Former] Employee understands and agrees that his cooperation may include, but not be limited to, making himself available to the Company Group upon reasonable notice for interviews and factual investigations; appearing at the Company Group’s request to give testimony without requiring service of a subpoena or other legal process; volunteering to the Company Group pertinent information; and turning over to the Company Group all relevant documents which are or may come into [Former] Employee’s possession all at times and on schedules that are reasonably consistent with [Former] Employee’s other permitted activities and commitments, all at the Company’s expense.  [Former] Employee understands that in the event the Company Group asks for his cooperation in accordance with this provision, the Company will also reimburse him for reasonable travel expenses, (including lodging and meals), upon [Former] Employee’s submission of receipts and other reasonable expenses.

 

X.                                     [Former] Employee acknowledges that the information, observations and data obtained by [Former] Employee concerning the business and affairs of the Company during the course of his employment with the Company were the property of the Company.  [Former] Employee agrees to abide by his post-employment obligations under the Employment Agreement, including but not limited to Section 7 thereof.

 

XI.                                [Former] Employee also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit [Former] Employee from (y) filing a charge or complaint with the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency, or (z) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, former Employee expressly waives the right to any individual relief of any kind in the event that the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency pursues any claim on [Former] Employee’s behalf.  Notwithstanding the foregoing, [Former] Employee

 

3



 

further understands that this Release does not prevent [Former] Employee from obtaining a whistleblower award from the Securities and Exchange Commission.

 

XII.                           Notwithstanding anything in this Release to the contrary, this Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company Group or by any Released Party of the Employment Agreement or the Release after the date of this Release nor of the Employee’s rights to indemnification under Section 27 of the Employment Agreement.

 

XIII.                      Whenever possible, each provision of this Release shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

BY SIGNING THIS RELEASE, [FORMER] EMPLOYEE REPRESENTS AND AGREES THAT:

 

XIV.                       [FORMER] EMPLOYEE HAS READ IT CAREFULLY;

 

XV.                            [FORMER] EMPLOYEE UNDERSTANDS ALL OF ITS TERMS AND KNOWS THAT HE IS GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;

 

XVI.                       [FORMER] EMPLOYEE VOLUNTARILY CONSENTS TO EVERYTHING IN THIS RELEASE;

 

XVII.                  [FORMER] EMPLOYEE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND [FORMER] EMPLOYEE HAS DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, [FORMER] EMPLOYEE HAS CHOSEN NOT TO DO SO OF HIS OWN VOLITION;

 

XVIII.             [FORMER] EMPLOYEE HAS SIGNED THIS RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE [FORMER] EMPLOYEE WITH RESPECT TO IT; AND

 

XIX.                       [FORMER] EMPLOYEE AGREES THAT THE PROVISIONS OF THIS RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY [FORMER] EMPLOYEE.

 

4



 

[Former] Employee executes this Release as of                             , 20  .

 

 

 

 

Name:

 

[Signature to Update Release Provision:

(To be signed following the Separation Date, if applicable)

 

Capitalized terms used below have the meaning set forth in the Release.

 

In consideration of the above and the promises set forth in this Release, I (the now former Employee) fully and forever release, acquit and discharge the Released Parties from any liability relating to any Claims that may have arisen between the signature date referenced above and the signature date referenced below and hereby agree to and make the representations, warranties, covenants and agreements to the Company set forth in the Release as of the Separation Date, as applicable.

 

I understand I have 21 days to consider this additional release provision, am advised to consult with an attorney of my choice regarding this additional release provision, and may use as much of this review period as I wish prior to signing.  I understand I may expressly and voluntarily waive any part or all of the review period by signing and returning this additional release provision prior to the expiration of the review period, and that I may revoke my acceptance of this additional release provision for 7 days after signing

below, as set forth in Paragraph V. above.

 

 

 

[Name]

 

Date:                                                                    

]

 


Exhibit 10.2

 

Separation & Release Agreement

 

In consideration for certain payments or benefits paid or granted to the undersigned (the “ Former Employee ”) under Section  6(d)  of the Employment Agreement, Former Employee hereby executes and delivers this Release (this “ Release ”) as of the date set forth on the signature page below.

 

WHEREAS , Former Employee and Diplomat Pharmacy, Inc., a Michigan Corporation (the “ Company ”) are parties to that certain Employment Agreement, dated as of October 25, 2016 (the “ Employment Agreement ”) pursuant to which Former Employee is employed as President of the Company; and

 

WHEREAS , Former Employee’s employment as President of the Company terminated effective as of August 7, 2017 (the “ Separation Date ”).

 

WHEREAS , the Company desires to continue to employ Former Employee, and Former Employee desires to continue to be employed by Company to provide Transition Services (defined below) during the Transition Period (defined below).

 

Now, therefore, for good and valuable consideration, the adequacy of which is acknowledged, Former Employee and the Company hereby agree as follows:

 

I.                                         Effective immediately as of 5:00 p.m. (EST) on the Separation Date, Former Employee shall no longer serve as President of the Company.  Effective immediately thereafter, Former Employee shall continue to be employed by the Company as a President Emeritus for a period of ninety (90) days commencing with the Separation Date and ending on November 7, 2017 (the “Transition Period”). During the Transition Period:

 

A.            Former Employee shall devote his working time, attention, energies, efforts and skills as is reasonably necessary to assist the Company and its new President in the transitioning of the new President to his new role as President of the Company (the “Transition Services”).  Former Employee shall provide the Transition Services from the Company’s Boothwyn, Pennsylvania office, Former Employee’s home office and/or such other locations as are mutually agreed upon by Former Employee and the Company.  The Former Employee shall be available during normal business hours to provide such Transition Services and to assist, advise and counsel the new President as may be required.

 

B.            The Company shall continue to pay to Former Employee his annual base salary that is in effect as of the date hereof, which shall be paid in accordance with the Company’s normal payroll practices.

 

C.            Former Employee shall continue to receive such prerequisites and fringe benefits and participate in all of the Company’s employee benefit programs and plans currently in effect.  For purposes of all such programs and plans, Former Employee’s date of termination of employment shall be November 7, 2017 which is the last day of the Transition Period (the “Termination Date”).

 

II.                                    Company shall pay Former Employee six months of severance at his current rate of pay for a period of six months commencing on the Termination Date through the Severance Period as set forth in the Employment Agreement.  During the Severance Period Company shall continue

 



 

health care coverage for Former Employee provided Former Employee makes a timely election for continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”).  Former Employee shall pay and Company shall reimburse the required premium to continue this coverage.  To receive reimbursement, Former Employee shall submit an invoice to: Diplomat Pharmacy, Inc. Attn: Vice President of Human Resources, 4100 S. Saginaw, Flint, MI 48507.

 

III.                               Former Employee understands that certain payments or benefits paid or granted to Former Employee under Section  6(d)  of the Employment Agreement represent, in part, consideration for signing this Release and are not salary, wages or benefits to which Former Employee was already entitled.  Former Employee understands and agrees that he will not receive certain of the payments and benefits specified in Section  6(d)  of the Employment Agreement unless Former Employee executes this Release and does not revoke this Release within the time period permitted below or otherwise breach this Release.  The Severance Payments specified in Section 6(d) of the Employment Agreement will commence on the first payroll date following the 30-day anniversary of the Termination Date.  Former Employee also acknowledges and represents that, with the exception of payments and benefits that he is entitled to during the Transition Period as set forth in Paragraph I above, he has received all payments and benefits that he is entitled to receive (as of the date of this Release) by virtue of any employment by the Company.

 

IV.                                In consideration of and subject to the performance by the Company and, together with any direct or indirect subsidiaries of the Company (collectively, the “ Company Group ”), of its obligations under this Agreement and under the Employment Agreement, Former Employee releases and forever discharges, as of the date of this Release, the Company Group and its affiliates and all present and former directors, managers, officers, agents, representatives, employees, successors and assigns of the Company Group and its affiliates and the Company Group’s direct or indirect owners including without limitation, Diplomat Pharmacy, Inc., a Michigan corporation and its affiliates, present and former directors, managers, officers, agents, representatives, employees, successors and assigns  (collectively, the “ Released Parties ”) to the extent provided below.  Except as provided in paragraph 0 below and except for the obligations of Company under this Agreement and except for the provisions of the Employment Agreement which expressly survive the termination of Former Employee’s employment by the Company, Former Employee knowingly and voluntarily (for himself, his heirs, executors, administrators and assigns) releases and forever discharges the Company Group and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date this Release becomes effective and enforceable) and whether known or unknown, suspected, or claimed against the Company Group or any of the Released Parties which Former Employee, his spouse, or any of his heirs, executors, administrators or assigns,  may have against the Company in connection with his employment in, termination from, or ownership in the Company (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (the “ ADEA ”) (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; or their state or local counterparts; or under any other employment-related federal, state or local civil or human rights law, or under any other employment-related local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any employment-related policies, practices or procedures of the

 

2



 

Company or any other member of the Company Group; or any claim for wrongful discharge, employment-related breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “ Claims ”), other than any Claims with respect to fraud, willful misconduct, or breaches of fiduciary duty.  Former Employee specifically represents that he has not filed any claims, charges, complaints, suits, or other actions against the Company or any other Released Party, with any federal, state or local agency or court.  Former Employee further agrees that should any claims, charges, complaints, suits or other actions be filed hereafter on his behalf by any federal, state or local agency or by any other person or entity, that he will immediately withdraw with prejudice, or cause to be withdrawn with prejudice, and/or dismiss with prejudice, or cause to be dismissed with prejudice, any such claims, charges, complaints, suits, or other actions filed against the Company or any other Released Party.  Former Employee agrees to opt-out of any class action filed against the Company or any other Released Party.

 

V.                                     Former Employee represents that he has made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by paragraph 0 above.

 

VI.                                Former Employee agrees that this Release does not waive or release any rights or claims that Former Employee may have under the ADEA which arise after the date he executes this Release.  Former Employee acknowledges and agrees that his separation from employment with the Company in compliance with the terms of the Employment Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the ADEA).

 

VII.                           Former Employee acknowledges that he has entered into this Release freely and without coercion, that he has been advised by the Company to consult with counsel of his choice, that Former Employee has had adequate opportunity to so consult, and that Former Employee has been given all time periods required by law to consider this Release, including but not limited to the 21-day period required by the ADEA.  Former Employee understands that he may execute this Release less than 21 days from its receipt from the Company, but agrees that such execution will represent his knowing waiver of such 21-day consideration period. Former Employee further acknowledges that within the 7-day period following his execution of this Release (the “ Revocation Period ”), Former Employee shall have the unilateral right to revoke this Release, and that the Company’s obligations under this Release shall become effective only upon the expiration of the Revocation Period without his revocation of this Release.  To be effective, notice of Former Employee’s revocation of this Release must be received by the Company on or before the last day of the Revocation Period.

 

VIII.                      In signing this Release, Former Employee acknowledges and intends that it shall be effective as a bar to each and every one of the Claims mentioned or implied above in this Release.  Former Employee expressly consents that this Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state statute that expressly limits the effectiveness of a Release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims mentioned or implied above in this Release.  Former Employee acknowledges and agrees that this waiver is an essential and material term of this Release and that without such waiver the Company would not have agreed to the terms of the Employment Agreement or this Release.  Except for a claim alleging breach of this agreement, Former Employee further agrees that in the event he should bring a Claim seeking damages against the Company Group or any other Released Party, or in the event Former Employee should seek to recover against the Company Group or any other Released Party in any Claim brought by a governmental agency on

 

3



 

his behalf, this Release shall serve as a complete defense to such Claims.  Former Employee has informed the Company of any pending charge or complaint of the type described in paragraph 0 as of the execution of this Release.

 

IX.                                Former Employee agrees that neither this Release, nor the furnishing of the consideration for this Release, shall be deemed or construed at any time to be an admission by any member of the Company Group, any Released Party or Former Employee of any improper or unlawful conduct.

 

X.                                     Former Employee agrees that he will forfeit all amounts payable by the Company pursuant to the Employment Agreement or this Release if he challenges the validity of this Release, except to any challenge that the release does not comply with the Older Workers Benefit Protection Act. Former Employee also agrees that if Former Employee violates this Release by suing the Company Group or the other Released Parties for Claims, he will pay all costs and expenses of defending against such Claims, including reasonable attorneys’ fees, and return all payments received by Former Employee pursuant to this General Release.

 

XI.                                The Company, on behalf of itself and its affiliates, and also on behalf of the directors, officers, agents, successors and assigns of the Company and its affiliates, hereby releases and forever discharges Former Employee from and against any and all causes of actions, liabilities, claims, suits, controversies, cross-claims, counterclaims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorney fees of any nature whatsoever in law or in equity, both past and present and whether known or unknown, suspected, or claimed against the Former Employee, relating to or arising in any way in connection with Former Employee’s employment by the Company including without limitation from any act or omission of Former Employee during the course of his employment with the Company (“Former Employee Claims”), other than any of Former Employee’s obligations under this Agreement and any Claims with respect to fraud, willful misconduct, or breaches of fiduciary duty.  The Company is not aware of nor does it have any knowledge of any Former Employee Claims that exist or may exist against Former Employee.  Former Employee represents that he is unaware of any material breach of Company policies by Former Employee.

 

XII.                           Former Employee agrees to reasonably cooperate with the Company Group in a manner consistent with his role while last employed at the company, at the Company Group’s expense in any internal or external investigations, any administrative, regulatory, or judicial proceeding or any dispute with a third party provided such request is provided to Former Employee in writing.  Former Employee understands and agrees that his cooperation may include, but not be limited to, making himself available to the Company Group upon reasonable notice for interviews and factual investigations; appearing at the Company Group’s request to give testimony without requiring service of a subpoena or other legal process; volunteering to the Company Group pertinent information; and turning over to the Company Group all relevant documents which are or may come into Former Employee’s possession all at times and on schedules that are reasonably consistent with Former Employee’s other permitted activities and commitments, all at the Company’s expense.  Former Employee understands that in the event the Company Group asks for his cooperation in accordance with this provision, the Company will also reimburse him for reasonable travel expenses, (including lodging and meals), upon Former Employee’s submission of receipts, and will compensate him for reasonable lost wages.  In the event the Company Group requests Former Employee’s cooperation in accordance with this provision, Former Employee shall be entitled to retain separate counsel to represent his interests in connection therewith.  In such event, the Company shall agree to pay for all reasonable legal fees and expenses incurred to the legal firm(s) retained by Former Employee.

 

4



 

XIII.                      The Company agrees to defend and indemnify Former Employee for any and all claims or causes of action brought against Former Employee by a third party arising out of or in connection with his employment with the Company, provided that Company is not obliged to indemnify Former Employee in connection with any judgment entered against him based upon Former Employee’s gross negligence, intentional misconduct, fraud, or criminal misconduct.  Former Employee may select counsel to defend the claim or cause of action, the cost of which shall be promptly paid for by the Company, and Former Employee shall promptly notify the Company of any such claim or cause of action or his knowledge of such claim or cause of action.

 

XIV.                       Former Employee acknowledges that the information, observations and data obtained by Former Employee concerning the business and affairs of the Company during the course of his employment with the Company were the property of the Company.  Former Employee agrees to abide by his post-employment obligations under the Employment Agreement, including but not limited to Section 7 thereof.  The parties desire to clarify the provisions of Section 7(b) of the Employment Agreement by adding the following sentence to the end thereof.  “Notwithstanding the foregoing, the restrictive covenant set forth above shall not prevent Former Employee from owning or being engaged by a health plan, hospital, pharmacy benefit manager, benefit consultant, non-specialty retail pharmacy, long-term care hospital or other noncompeting pharmacy or pharmaceutical manufacturer so long as the Former Employee does not have any direct involvement with such entity’s/business’s specialty pharmacy business, programs or strategies.

 

XV.                            Former Employee also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit Former Employee from (y) filing a charge or complaint with the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency, or (z) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, former Employee expressly waives the right to any individual relief of any kind in the event that the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency pursues any claim on Former Employee’s behalf.  Notwithstanding the foregoing, Former Employee further understands that this Release does not prevent Former Employee from obtaining a whistleblower award from the Securities and Exchange Commission.

 

XVI.                       Capitalized terms not otherwise defined herein have the meaning set forth in the Employment Agreement.

 

XVII.                  Former Employee represents and warrants that he shall refrain from any action that materially harms the reputation or goodwill of the Company, including its subsidiaries or affiliates and any of its officers, directors, employees, agents or shareholders, including, but not limited to, making derogatory comments to the Company’s employees, lenders, suppliers, customers, and others in the trade about the character and ability of the Company’s directors, officers, executives, employees, representatives and agents, and the manner in which the Company conducts its business.  The Company represents and agrees that persons then serving as an officer or director of the Company shall refrain from any action that materially harms the reputation or goodwill of Former Employee, including but not limited to making derogatory comments to the Company’s employees, lenders, shareholders, suppliers, customers, and others in the Company’s trade about the character and ability of Former Employee or regarding the manner in which Former Employee carried out his duties or otherwise performed on behalf of the Company.  This sub-section shall not be construed to prohibit or to limit any statements made by Former Employee to the EEOC or any other state or federal agency in the course of participating in any agency

 

5



 

proceeding.   Each party understands and acknowledges that failure to comply with this Paragraph will be deemed a material breach of this Agreement, and shall entitle the non-breaching party to all remedies provided in law or equity.

 

Notwithstanding anything in this Release to the contrary, this Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company Group or by any Released Party of the Employment Agreement or the Release after the date of this Release.  Whenever possible, each provision of this Release shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

BY SIGNING THIS RELEASE, FORMER EMPLOYEE REPRESENTS AND AGREES THAT:

 

I.                                         FORMER EMPLOYEE HAS READ IT CAREFULLY;

 

II.                                    FORMER EMPLOYEE UNDERSTANDS ALL OF ITS TERMS AND KNOWS THAT HE IS GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;

 

III.                               FORMER EMPLOYEE VOLUNTARILY CONSENTS TO EVERYTHING IN THIS RELEASE;

 

IV.                                FORMER EMPLOYEE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND FORMER EMPLOYEE HAS DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, FORMER EMPLOYEE HAS CHOSEN NOT TO DO SO OF HIS OWN VOLITION;

 

V.                                     FORMER EMPLOYEE HAS SIGNED THIS RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE FORMER EMPLOYEE WITH RESPECT TO IT; AND

 

VI.                                FORMER EMPLOYEE AGREES THAT THE PROVISIONS OF THIS RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY FORMER EMPLOYEE.

 

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

 

6



 

 

DIPLOMAT PHARMACY, INC.

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

 

Print Name:

Philip R. Hagerman

 

 

 

Title:

CEO

 

 

 

Date:

August 7, 2017

 

 

 

 

 

Paul Urick

 

 

 

 

 

/s/ Paul Urick

 

 

 

Date:

August 7, 2017

 

7



 

Signature to Update Release Provision:

(To be signed following the Termination Date)

 

Capitalized terms used below have the meaning set forth in the Release.

 

In consideration of the above and the promises set forth in this Release, I (the Former Employee) fully and forever release, acquit and discharge the Released Parties from any liability relating to any Claims that may have arisen between the signature date referenced above and the signature date referenced below and hereby agree to and make the representations, warranties, covenants and agreements to the Company set forth in the Release as of the Termination Date, as applicable.

 

I understand I have 21 days to consider this additional release provision, am advised to consult with an attorney of my choice regarding this additional release provision, and may use as much of this review period as I wish prior to signing.  I understand I may expressly and voluntarily waive any part or all of the review period by signing and returning this additional release provision prior to the expiration of the review period, and that I may revoke my acceptance of this additional release provision for 7 days after signing below, as set forth in Paragraph VII. above.

 

 

 

 

Paul Urick

 

 

Date:

 

 

 

8


Exhibit 99.1

 

 

Diplomat Announces 2 nd  Quarter Financial Results

 

2nd Quarter Revenue Increased 3.5%, Net Income Attributable to Diplomat of $3.6 Million,

Adjusted EBITDA of $25.2 Million

 

FLINT, Mich., August 7, 2017 /PRNewswire/ — Diplomat Pharmacy, Inc. (NYSE: DPLO), the nation’s largest independent specialty pharmacy, announced financial results for the quarter ended June 30, 2017.  All comparisons, unless otherwise noted, are to the quarter ended June 30, 2016.

 

Second Quarter 2017 Highlights include:

 

·                   Revenue of $1,126 million, compared to $1,089 million, an increase of 3.5%

·                   Total prescriptions dispensed of 220,000, compared to 241,000

·                   Gross margin of 7.5% versus 7.6%

·                   Gross profit per prescription dispensed of $371, compared to $339

·                   Net income attributable to Diplomat of $3.6 million, compared to $8.5 million

·                   Adjusted EBITDA of $25.2 million, compared to $29.6 million

·                   Adjusted EBITDA margin of 2.2% versus 2.7%

·                   EPS of $0.05 per diluted common share versus $0.13

·                   Adjusted EPS of $0.25 versus $0.23

 

Phil Hagerman, CEO and Chairman of Diplomat, commented “ I’m very pleased with our solid second quarter results, which saw continued strength in oncology and infusion, up 25% and 20% year over year, respectively.  In the first half of 2017, a transition year for Diplomat, we have made promising strides in our, higher margin, tuck-in acquisition strategy in infusion, as well as with our managed care strategy.  In addition, we are seeing customers start to embrace our expanded service division. Finally, I’m thrilled to announce that Joel Saban has joined us as President of Diplomat, bringing years of industry experience, which I believe will be a tremendous asset to our company.”

 

Second Quarter Financial Summary:

 

Revenue for the second quarter of 2017 was $1,126 million, compared to $1,089 million in the second quarter of 2016, an increase of $38 million or 3.5%.  The increase was driven by approximately $83 million of revenue from our acquisitions, approximately $63 million from the impact of manufacturer price increases, and approximately $32 million from drugs that were new in the past year.  These increases were partially offset by a decrease due to contracts that were not renewed in 2017 as well as a decrease in the demand for hepatitis C drugs versus the prior year period.  Our revenue increase year over year, excluding the impact of the contract losses was approximately $160 million or 15%.

 



 

Gross profit in the second quarter of 2017 was $84.8 million and generated a 7.5% gross margin, compared to $83.3 million and 7.6% in the second quarter of 2016.  The gross margin decline in the quarter was primarily due to an increase in accrued direct and indirect remuneration (“DIR”) fees versus what was accrued in the second quarter of 2016.

 

Selling, general, and administrative expenses (“SG&A”) for the second quarter of 2017 were $80.0 million, an increase of $10.6 million, compared to $69.4 million in the second quarter of 2016.  Of this change, $7.2 million related to employee cost, including employee cost for our acquired entities.  The increased employee expense was attributable to the growth in our infusion and oncology business which is more clinically and administratively complex.  Also contributing to the SG&A expense increase was a $3.1 million increase in amortization expense from definite-lived intangible assets associated with our acquired entities.  We also experienced increases in other SG&A; including freight, insurance, and other miscellaneous expenses.  As a percentage of revenue, SG&A was 7.1% for the three months ended June 30, 2017, compared to 6.4% in the prior year period.  This increase is primarily attributable to the increase in acquisition related amortization and the increased operating complexity associated with both our acquisitions and new drugs.

 

Net income attributable to Diplomat for the second quarter of 2017 was $3.6 million compared to $8.5 million in the second quarter of 2016.  This decrease was primarily driven by the revenue, gross profit, and SG&A explanations above, partially offset by a $4.7 million change in income taxes. Adjusted EBITDA for the second quarter of 2017 was $25.2 million compared to $29.6 million in the second quarter of 2016, a decrease of $4.5 million.

 

Earnings per share for the second quarter of 2017 was $0.05 per basic/diluted common share, compared to $0.13 per basic/diluted common share for the second quarter of 2016.  Diluted non-GAAP adjusted earnings per share (“Adjusted EPS”) was $0.25 in the second quarter of this year compared to $0.23 in the second quarter of 2016.

 

2017 Financial Outlook

 

For the full-year 2017, we are updating our previous financial guidance:

 

·                   Revenue between $4.3 and $4.6 billion, versus the previous range of $4.3 and $4.7 billion

·                   Net income attributable to Diplomat between $10 and $16 million, versus the previous range of $6.5 and $15.5 million

·                   Adjusted EBITDA between $97 and $103 million, versus the previous range of $95 and $103 million

·                   Diluted EPS between $0.15 and $0.23, versus the previous range of $0.09 and $0.23

·                   Adjusted EPS between $0.71 and $0.79, versus the previous range of $0.54 and $0.70

 

Our EPS and Adjusted EPS expectations assume approximately 68,600,000 weighted average common shares outstanding on a diluted basis and a tax rate of 26%, versus the previous tax rate of 35% and 40% for the high and low of the range respectively, for the full year 2017, which could differ materially.

 

Earnings Conference Call Information

 

As previously announced, the Company will hold a conference call to discuss its second quarter performance this evening, August 7, 2017, at 5:00 p.m. Eastern Time.  Shareholders and interested participants may listen to a live broadcast of the conference call by dialing 877-201-0168 (or 647-788-4901 for international callers) and referencing participant code 51641230 approximately 15 minutes prior to the call.  A live webcast and audio file of the conference call will be available on the investor relations section of the Company’s website for approximately 90 days at ir.diplomat.is.

 



 

About Diplomat

 

Diplomat (NYSE: DPLO) is the nation’s largest independent provider of specialty pharmacy services—helping patients and providers in all 50 states. The company offers medication management programs for people with complex chronic diseases and delivers unique solutions for manufacturers, hospitals, payors, providers, and more. Diplomat opened its doors in 1975 as a neighborhood pharmacy with one essential tenet: “Take good care of patients and the rest falls into place.” Today, that tradition continues—always focused on improving patient care and clinical adherence. For more information, visit diplomat.is.

 

Non-GAAP Information

 

Adjusted EPS adds back, net of income taxes, the impact of all merger and acquisition related expenses, including amortization of intangible assets, the change in fair value of contingent consideration, as well as transaction-related costs.  We exclude merger and acquisition-related expenses from Adjusted EPS because we believe the amount of such expenses in any specific period may not directly correlate to the underlying performance of our business operations and such expenses can vary significantly between periods as a result of new acquisitions, full amortization of previously acquired intangible assets, or ultimate realization of contingent consideration.  Investors should note that acquisitions, once consummated, contribute to revenue in the periods presented as well as future periods and should also note that amortization and contingent consideration expenses may recur in future periods.  A reconciliation of Adjusted EPS, a non-GAAP measure, to EPS as prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) can be found below.

 

We define Adjusted EBITDA as net income (loss) attributable to Diplomat before interest expense, income taxes, depreciation and amortization, share-based compensation, change in fair value of contingent consideration and other merger and acquisition-related expenses, restructuring and impairment charges, and certain other items that we do not consider indicative of our ongoing operating performance (which are itemized below in the reconciliation to net income (loss) attributable to Diplomat).  Adjusted EBITDA is not in accordance with, or an alternative to, GAAP.  In addition, this non-GAAP measure is not based on any comprehensive set of accounting rules or principles.  You should be aware that in the future we may incur expenses that are the same as or similar to some of the adjustments in the presentation, and we do not infer that our future results will be unaffected by unusual or non-recurring items.

 

We consider Adjusted EBITDA and Adjusted EPS to be supplemental measures of our operating performance.  We present Adjusted EBITDA and Adjusted EPS because they are used by our Board of Directors and management to evaluate our operating performance.  Adjusted EBITDA is also used as a factor in determining incentive compensation, for budgetary planning and forecasting overall financial and operational expectations, for identifying underlying trends, and for evaluating the effectiveness of our business strategies.  Further, we believe they assist us, as well as investors, in comparing performance from period-to-period on a consistent basis.  Other companies in our industry may calculate Adjusted EBITDA and Adjusted EPS differently than we do and these calculations may not be comparable to our Adjusted EBITDA and Adjusted EPS metrics.  A reconciliation of Adjusted EBITDA, a non-GAAP measure, to net income (loss) attributable to Diplomat can be found below.

 



 

Forward Looking Statements

 

This press release contains forward-looking statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.  Forward-looking statements give current expectations or forecasts of future events or our future financial or operating performance, and include Diplomat’s expectations regarding revenues, net income (loss) attributable to Diplomat, Adjusted EBITDA, EPS, Adjusted EPS, market share, the performance of acquisitions and growth strategies.  The forward-looking statements contained in this press release are based on management’s good-faith belief and reasonable judgment based on current information, and these statements are qualified by important risks and uncertainties, many of which are beyond our control, that could cause our actual results to differ materially from those forecasted or indicated by such forward-looking statements.  These risks and uncertainties include: our ability to adapt to changes or trends within the specialty pharmacy industry; significant and increasing pricing pressure from third-party payors; the amount of direct and indirect remuneration fees, as well as the timing of assessing such fees and the non-transparent methodology used to calculate such fees; the outcome of material legal proceedings related to direct and indirect remuneration fees; our relationships with key pharmaceutical manufacturers; bad publicity about, or market withdrawal of, specialty drugs we dispense; a significant increase in competition from a variety of companies in the health care industry; our ability to expand the number of specialty drugs we dispense and related services; maintaining existing patients; revenue concentration of the top specialty drugs we dispense; our ability to maintain relationships with a specified wholesaler and two pharmaceutical manufacturers or other pharmaceutical manufacturers that become material to our business over time; increasing consolidation in the healthcare industry; managing our growth effectively; our ability to effectively execute our acquisition strategy or successfully integrate acquired businesses; dependence on our senior management and key employees and managing recent turnover among key employees; potential disruption to our workforce and operations due to recent cost savings and restructuring initiatives; and the additional factors set forth in “Risk Factors” in Diplomat’s Annual Report on Form 10-K for the year ended December 31, 2016 and in subsequent reports filed with or furnished to the Securities and Exchange Commission.  Except as may be required by any applicable laws, Diplomat assumes no obligation to publicly update such forward-looking statements, which are made as of the date hereof or the earlier date specified herein, whether as a result of new information, future developments, or otherwise.

 

INVESTOR CONTACT:
Bob East, Westwicke Partners 
443-213-0500 | Diplomat@westwicke.com

 



 

DIPLOMAT PHARMACY, INC.
Condensed Consolidated Balance Sheets (Unaudited)
(dollars in thousands)

 

 

 

June 30,
2017

 

December 31,
2016

 

ASSETS

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and equivalents

 

$

7,804

 

$

7,953

 

Accounts receivable, net

 

279,604

 

275,568

 

Inventories

 

178,131

 

215,351

 

Prepaid expenses and other current assets

 

10,477

 

6,235

 

Total current assets

 

476,016

 

505,107

 

 

 

 

 

 

 

Property and equipment, net

 

20,963

 

20,372

 

Capitalized software for internal use, net

 

42,953

 

50,247

 

Goodwill

 

358,178

 

316,616

 

Definite-lived intangible assets, net

 

195,100

 

199,862

 

Deferred income taxes

 

5,031

 

6,010

 

Other noncurrent assets

 

1,081

 

1,040

 

Total assets

 

$

1,099,322

 

$

1,099,254

 

 

 

 

 

 

 

LIABILITIES AND SHAREHOLDERS’ EQUITY

 

 

 

 

 

 

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Accounts payable

 

$

307,718

 

$

320,684

 

Borrowings on line of credit

 

2,521

 

39,255

 

Short-term debt, including current portion of long-term debt

 

10,875

 

7,500

 

Accrued expenses:

 

 

 

 

 

Compensation and benefits

 

6,511

 

5,674

 

Other

 

12,792

 

12,233

 

Total current liabilities

 

340,417

 

385,346

 

 

 

 

 

 

 

Long-term debt, less current portion

 

119,006

 

100,184

 

Contingent consideration

 

4,365

 

 

 

 

 

 

 

 

Total liabilities

 

463,788

 

485,530

 

 

 

 

 

 

 

Commitments and contingencies

 

 

 

 

 

Shareholders’ equity:

 

 

 

 

 

Preferred stock (10,000,000 shares authorized; none issued and outstanding)

 

 

 

Common stock (no par value, 590,000,000 shares authorized; 68,017,230 and 66,764,999 shares issued and outstanding at June 30, 2017 and December 31, 2016, respectively)

 

515,820

 

503,828

 

Additional paid-in capital

 

35,372

 

33,268

 

Retained earnings

 

84,264

 

76,306

 

Total Diplomat Pharmacy shareholders’ equity

 

635,456

 

613,402

 

Noncontrolling interests

 

78

 

322

 

Total shareholders’ equity

 

635,534

 

613,724

 

Total liabilities and shareholders’ equity

 

$

1,099,322

 

$

1,099,254

 

 



 

DIPLOMAT PHARMACY, INC.
Condensed Consolidated Statements of Operations (Unaudited)
(dollars in thousands, except per share amounts)

 

 

 

Three Months Ended
June 30,

 

Six Months Ended
June 30,

 

 

 

2017

 

2016

 

2017

 

2016

 

Net sales

 

$

1,126,464

 

$

1,088,506

 

$

2,205,204

 

$

2,084,376

 

Cost of goods sold

 

(1,041,630

)

(1,005,236

)

(2,035,321

)

(1,921,868

)

Gross profit

 

84,834

 

83,270

 

169,883

 

162,508

 

Selling, general and administrative expenses

 

(79,991

)

(69,416

)

(156,492

)

(123,610

)

Income from operations

 

4,843

 

13,854

 

13,391

 

38,898

 

Other (expense) income:

 

 

 

 

 

 

 

 

 

Interest expense

 

(1,931

)

(1,521

)

(3,980

)

(2,956

)

Other

 

34

 

105

 

66

 

213

 

Total other expense

 

(1,897

)

(1,416

)

(3,914

)

(2,743

)

Income before income taxes

 

2,946

 

12,438

 

9,477

 

36,155

 

Income tax benefit (expense)

 

544

 

(4,145

)

(1,763

)

(12,679

)

Net income

 

3,490

 

8,293

 

7,714

 

23,476

 

Less: net loss attributable to noncontrolling interest

 

(101

)

(241

)

(244

)

(487

)

Net income attributable to Diplomat Pharmacy, Inc.

 

$

3,591

 

$

8,534

 

$

7,958

 

$

23,963

 

 

 

 

 

 

 

 

 

 

 

Net income per common share:

 

 

 

 

 

 

 

 

 

Basic

 

$

0.05

 

$

0.13

 

$

0.12

 

$

0.37

 

Diluted

 

$

0.05

 

$

0.13

 

$

0.12

 

$

0.35

 

 

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding:

 

 

 

 

 

 

 

 

 

Basic

 

67,528,151

 

66,085,149

 

67,209,280

 

65,312,155

 

Diluted

 

68,211,882

 

68,034,392

 

67,997,929

 

67,939,665

 

 



 

DIPLOMAT PHARMACY, INC.
Condensed Consolidated Statements of Cash Flows (Unaudited)
(dollars in thousands)

 

 

 

Six Months Ended June 30,

 

 

 

2017

 

2016

 

Cash flows from operating activities:

 

 

 

 

 

Net income

 

$

7,714

 

$

23,476

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

Depreciation and amortization

 

31,935

 

22,389

 

Net provision for doubtful accounts

 

5,401

 

4,010

 

Share-based compensation expense

 

3,798

 

3,152

 

Deferred income tax expense

 

979

 

11,178

 

Amortization of debt issuance costs

 

595

 

581

 

Changes in fair values of contingent consideration

 

 

(8,922

)

Contingent consideration payment

 

 

(382

)

Other

 

6

 

1

 

Changes in operating assets and liabilities, net of business acquisitions:

 

 

 

 

 

Accounts receivable

 

(3,024

)

(49,246

)

Inventories

 

37,179

 

(11,358

)

Accounts payable

 

(14,353

)

52,878

 

Other assets and liabilities

 

(2,977

)

(1,808

)

Net cash provided by operating activities

 

67,253

 

45,949

 

Cash flows from investing activities:

 

 

 

 

 

Payments to acquire businesses, net of cash acquired

 

(53,571

)

(69,072

)

Expenditures for capitalized software for internal use

 

(2,459

)

(7,349

)

Expenditures for property and equipment

 

(2,289

)

(3,705

)

Other

 

(43

)

1

 

Net cash used in investing activities

 

(58,362

)

(80,125

)

Cash flows from financing activities:

 

 

 

 

 

Net (payments on) proceeds from line of credit

 

(36,734

)

17,057

 

Proceeds from long-term debt

 

25,000

 

 

Payments on long-term debt

 

(3,313

)

(3,000

)

Proceeds from issuance of stock upon stock option exercises

 

6,007

 

1,203

 

Contingent consideration payment

 

 

(722

)

Payments of debt issuance costs

 

 

(56

)

Net cash (used in) provided by financing activities

 

(9,040

)

14,482

 

Net increase (decrease) in cash and equivalents

 

(149

)

(19,694

)

Cash and equivalents at beginning of period

 

7,953

 

27,600

 

Cash and equivalents at end of period

 

$

7,804

 

$

7,906

 

Supplemental disclosures of cash flow information:

 

 

 

 

 

Cash paid for income taxes

 

$

4,458

 

$

401

 

Cash paid for interest

 

3,386

 

2,318

 

 



 

Adjusted EBITDA

 

The table below presents a reconciliation of net income attributable to Diplomat Pharmacy, Inc. to Adjusted EBITDA for the periods indicated.

 

 

 

For the three months ended June 30,

 

For the six months ended June 30,

 

 

 

2017

 

2016

 

2017

 

2016

 

 

 

(dollars in thousands) (unaudited)

 

Net income attributable to Diplomat Pharmacy, Inc.

 

$

3,591

 

$

8,534

 

$

7,958

 

$

23,963

 

Depreciation and amortization

 

16,538

 

12,271

 

31,935

 

22,389

 

Interest expense

 

1,931

 

1,521

 

3,980

 

2,956

 

Income tax (benefit) expense

 

(544

)

4,145

 

1,763

 

12,679

 

EBITDA

 

$

21,516

 

$

26,471

 

$

45,636

 

$

61,987

 

 

 

 

 

 

 

 

 

 

 

Contingent consideration and other merger and acquisition expense

 

$

569

 

$

1,103

 

$

1,117

 

$

(7,326

)

Share-based compensation expense

 

2,826

 

1,649

 

3,798

 

3,152

 

Employer payroll taxes - option repurchases and exercises

 

100

 

28

 

185

 

71

 

Severance and related fees

 

40

 

 

702

 

 

Other items

 

116

 

392

 

544

 

779

 

Adjusted EBITDA

 

$

25,167

 

$

29,643

 

$

51,982

 

$

58,663

 

 

Adjusted EPS (diluted)

 

Below is a reconciliation of net income attributable to Diplomat Pharmacy, Inc. per diluted share to Adjusted EPS for the periods indicated.

 

 

 

For the three months ended June 30,

 

For the six months ended June 30,

 

 

 

2017

 

2016

 

2017

 

2016

 

 

 

(dollars in thousands, except per share amounts) (unaudited)

 

Net income attributable to Diplomat Pharmacy, Inc.

 

$

3,591

 

$

8,534

 

$

7,958

 

$

23,963

 

Amortization of acquisition-related intangible assets

 

12,944

 

9,818

 

25,265

 

18,502

 

Contingent consideration and other merger and acquisition expense

 

569

 

1,103

 

1,117

 

(7,326

)

Income tax impact of adjustments

 

(362

)

(3,639

)

(4,909

)

(3,731

)

Adjusted non-GAAP net income

 

$

16,742

 

$

15,816

 

$

29,431

 

$

31,408

 

 

 

 

 

 

 

 

 

 

 

Net income attributable to Diplomat Pharmacy, Inc.

 

$

0.05

 

$

0.13

 

$

0.12

 

$

0.35

 

Amortization of acquisition-related intangible assets

 

0.19

 

0.14

 

0.37

 

0.27

 

Contingent consideration and other merger and acquisition expense

 

0.01

 

0.02

 

0.02

 

(0.11

)

Income tax impact of adjustments

 

(0.01

)

(0.06

)

(0.08

)

(0.06

)

Adjusted EPS

 

$

0.25

 

$

0.23

 

$

0.43

 

$

0.46

 

 

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding:

 

 

 

 

 

 

 

 

 

Diluted

 

68,211,882

 

68,034,392

 

67,997,929

 

67,939,665

 

 



 

2017 Full Year Guidance: GAAP to Non-GAAP Reconciliation

 

The tables below present a reconciliation of net income attributable to Diplomat Pharmacy, Inc. to Adjusted EBITDA and net income attributable to Diplomat Pharmacy, Inc. per diluted share to Adjusted EPS for the year ended December 31, 2017.

 

Reconciliation of GAAP to Adjusted EBITDA
(dollars in thousands) (unaudited)

 

 

 

Range

 

 

 

Low

 

High

 

Net income attributable to Diplomat Pharmacy, Inc.

 

$

10,000

 

$

16,000

 

Depreciation and amortization

 

64,660

 

64,352

 

Interest expense

 

7,299

 

6,999

 

Income tax expense

 

3,398

 

5,506

 

EBITDA

 

$

85,357

 

$

92,857

 

 

 

 

 

 

 

Contingent consideration and other merger and acquisition expense

 

$

2,517

 

$

2,017

 

Share-based compensation expense

 

7,242

 

6,642

 

Employer payroll taxes - option repurchases and exercises

 

338

 

238

 

Severance and related fees

 

1,002

 

702

 

Other items

 

544

 

544

 

Adjusted EBITDA

 

$

97,000

 

$

103,000

 

 

Reconciliation of GAAP to Adjusted Net Income and Adjusted EPS

(dollars in thousands, except per share amounts) (unaudited)

 

 

 

Range

 

 

 

Low

 

High

 

Net income attributable to Diplomat Pharmacy, Inc.

 

$

10,000

 

$

16,000

 

Amortization of acquisition-related intangible assets

 

49,813

 

49,813

 

Contingent consideration and other merger and acquisition expense

 

2,517

 

2,017

 

Income tax impact of adjustments

 

(13,606

)

(13,476

)

Adjusted non-GAAP net income

 

$

48,724

 

$

54,354

 

 

 

 

 

 

 

Net income attributable to Diplomat Pharmacy, Inc.

 

0.15

 

0.23

 

Amortization of acquisition-related intangible assets

 

0.73

 

0.73

 

Contingent consideration and other merger and acquisition expense

 

0.04

 

0.03

 

Income tax impact of adjustments

 

(0.21

)

(0.20

)

Adjusted EPS

 

$

0.71

 

$

0.79

 

 


Exhibit 99.2

 

 

FOR IMMEDIATE RELEASE:

August 7, 2017

INVESTOR CONTACT

Bob East, Westwicke Partners

443.213.0500 | diplomat@westwicke.com

 

 

 

MEDIA CONTACT

Jenny Cretu, Senior Vice President,

Pharma Services and Marketing

810.768.9370 | jcretu@diplomat.is

 

Diplomat Announces A New President

 

The nation’s largest independent specialty pharmacy announces executive leadership change.

 

FLINT, Mich. — Diplomat Pharmacy, Inc. (NYSE: DPLO) today announced the appointment of Joel Saban as president, effective Aug. 7, 2017.

 

Paul Urick has decided to pursue other interests and will serve as president emeritus during a planned, 90-day transition period. “During his tenure, Paul has served us in multiple leadership roles since he joined Diplomat with the acquisition of Burman’s Specialty Pharmacy in Jun. 2015 and has provided decisive, strategic leadership which continues to benefit our patients and our partners. We want to thank Paul for his significant contribution and commitment to the company,” said Phil Hagerman, CEO and chairman.

 

“I am proud of what I was able to accomplish during my time at Diplomat, and enjoyed the opportunity to serve its patients and clients,” said Urick.

 

“In light of this transition we had an opportunity to select an individual who would strengthen our position. Joel’s leadership credentials and strategic thinking make him the right person to help execute Diplomat’s roadmap and drive sustainable growth. He comes to Diplomat with a proven track record across the entire value chain of our business,” said Hagerman.

 

Joel Saban, age 50, served as the executive vice president, pharmacy operations at Catamaran Corp. from June 2010 until January 2016 overseeing a staff of approximately 3,200 employees of Catamaran Corp.’s retail, mail and specialty operations, as well as cost of goods contracting and vendor relations. Prior to joining Catamaran Corp., Saban was the senior vice president of industry relations at CVS/Caremark Corporation from 1997 until 2010 where he was responsible for directing brand pharmaceutical industry

 



 

relations including contract negotiations and administration, financial analysis, and strategic business development, as well as evaluating opportunities, analyzing contract profitability and ensuring that contracts met company business objectives in the pharmaceutical and retail areas. Prior to this, he served as director of medical and scientific affairs for the Alzheimer’s Association. Saban is a member of the Academy of Managed Care Pharmacy and the Pharmaceutical Care Management Association.

 

“After following Diplomat’s success for several years, I am honored to join their team,” said Saban. “Diplomat continues to transform in this rapidly evolving industry and I am committed to their strategies, continued growth, and emphasis on services for patients and partners.”

 

“I look forward to partnering with Joel and our talented senior leadership team to accelerate our strategic plan. We remain focused on driving profitable growth with a continued emphasis on quality and innovation to deliver strong shareholder returns over the long term,” Hagerman said.

 

To learn more about Diplomat, visit diplomat.is.

 

Forward-Looking Statements

 

This press release contains forward-looking statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements give current expectations or forecasts of future events or our future financial or operating performance. The forward-looking statements contained in this press release are based on management’s good-faith belief and reasonable judgment based on current information. These statements are qualified by important risks and uncertainties, many of which are beyond our control, that could cause our actual results to differ materially from those forecasted or indicated by such forward-looking statements. For a discussion of such risks and uncertainties, you should review Diplomat’s filings with the Securities and Exchange Commission, including “Risk Factors” in Diplomat’s Annual Report on Form 10-K for the year ended Dec. 31, 2016, and in subsequent reports filed with or furnished to the Securities and Exchange Commission. Except as may be required by any applicable laws, Diplomat assumes no obligation to publicly update such forward-looking statements, which are made as of the date hereof or the earlier date specified herein, whether as a result of new information, future developments or otherwise.

 

About Diplomat

 

Diplomat (NYSE: DPLO) is the nation’s largest independent provider of specialty pharmacy services—helping patients and providers in all 50 states. The company offers medication management programs for people with complex chronic diseases and delivers unique solutions for manufacturers, hospitals, payors, providers, and more. Diplomat opened its doors in 1975 as a neighborhood pharmacy with one essential tenet: “Take good care of patients and the rest falls into place.” Today, that tradition continues—always focused on improving patient care and clinical adherence. For more information, visit diplomat.is.

 

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