exv10w1






Exhibit 10.1




EXECUTION VERSION




     AMENDED & RESTATED EMPLOYMENT AGREEMENT dated as of December 31, 2011 (the “Effective
Date”), by and between HENRY SCHEIN, INC., a Delaware corporation (the “Company”), and STANLEY M.
BERGMAN (“Bergman”).



     WHEREAS, Bergman is currently Chairman of the Board of Directors and Chief Executive Officer
of the Company, and Bergman and the Company previously had entered into an Amended and Restated
Employment Agreement dated as of December 31, 2008, as subsequently amended by amendment dated as
of June 30, 2011 (the “Prior Agreement”);



     WHEREAS, the Company recognizes that Bergman has made substantial contributions to the success
of the Company over a long period of time and desires to assure the Company of Bergman’s continued
service and Bergman desires to continue to perform services for the Company; and



     WHEREAS, Bergman and the Company wish to amend and restate the Prior Agreement in the form set
forth below.



     In consideration of the agreements herein after set forth, the Company and Bergman agree as
follows:



     1. EMPLOYMENT



     1.1 CAPACITY; DUTIES. The Company hereby continues to employ Bergman as the Company’s
Chairman of the Board of Directors and Chief Executive Officer. Bergman shall have general
supervision over the business and affairs of the Company and its subsidiaries, shall report and be
responsible only to, and subject to the supervision of, the Board of Directors of the Company (the
“Board of Directors”), and shall have powers and authority superior to those of any other officer
or employee of the Company or any of its subsidiaries. The Board of Directors may with Bergman’s
consent, which consent may be withheld in his reasonable discretion, confer the title of President
upon another person without any diminution in the compensation or benefits payable to Bergman
hereunder. Subject to Section 6(b), Bergman may serve on the board of directors of any other
corporation, or may be involved in civic or charitable activities and may manage his personal
investments, so long as such service does not interfere with his duties to the Company or its
subsidiaries and such other corporation is not a supplier or customer of the Company and does not
engage in any business that is competitive with the business of the Company. Bergman accepts the
employment described herein and agrees to devote his full business time and effort thereto, and to
perform those duties normally attributable to the positions for which he is employed hereunder.



     1.2 EMPLOYMENT PERIOD. Bergman’s employment shall be for the period (the “Employment Period”)
commencing on the Effective Date, and ending on the earlier of (i) December 31, 2016, as such date
may be extended as provided below, or (ii) the date on which Bergman’s employment is terminated
earlier pursuant to Section 4. The Employment Period may be extended by the Company for successive
one-year periods by giving Bergman notice (an “Extension Notice”) at least six months prior to the
date that the then applicable Employment Period is to expire. Notwithstanding the preceding
sentence, the Employment Period shall not be



 









 




extended if Bergman, within 90 days after any Extension Notice is given, advises the Company
that he chooses not to extend the Employment Period. The date on which the Employment Period is
scheduled to expire pursuant to whichever shall be the later of the date set forth in clause (i)
above or the extended date as provided above is hereinafter referred to as the “Employment
Expiration Date.”




     2. COMPENSATION



     2.1 BASE SALARY. During the Employment Period, as compensation for Bergman’s employment
hereunder, Bergman shall receive a base salary at the rate of $1,180,000 per annum, payable in
accordance with the Company’s normal payroll practices for its senior executive officers from time
to time in effect. The base salary may be increased by such amounts and at such times as shall be
determined by the Board of Directors or the Compensation Committee of the Board of Directors (the
“Compensation Committee”) from time to time, in its sole discretion. (The base salary, as it may
be increased from time to time, is hereinafter referred to as the “Base Salary.”)



     2.2 INCENTIVE COMPENSATION. During the Employment Period, Bergman shall be eligible to
receive, in addition to his Base Salary, incentive compensation (“Incentive Compensation”) as
follows: with respect to each year during the Employment Period, the Compensation Committee shall,
after consultation with Bergman, establish a target annual Incentive Compensation opportunity for
Bergman, to be expressed as a percentage of the Base Salary for such year, and performance criteria
consistent with such performance-based criteria as are applicable to other Company senior
management. All Incentive Compensation shall be paid as soon as practicable after the amount of
such compensation has been finally determined, and in all events during the calendar year
immediately following the calendar year with respect to which the Incentive Compensation was
earned.



     2.3 ADDITIONAL COMPENSATION. Nothing contained herein shall limit or otherwise restrict the
Board of Directors from granting to Bergman at any time and from time to time such additional
compensation as may be recommended from time to time by the Compensation Committee.



     2.4 EXPENSES. The Company shall promptly reimburse Bergman for all expenses reasonably
incurred by him in the performance of his duties under this Agreement in accordance with the
Company’s general policies and practices for senior executive officers in effect from time to time;
provided that in no event shall any such reimbursement be made later than the later of (i) the
15th day of the third month following the end of the calendar year in which the
applicable expense is incurred or (ii) the 15th day of the third month following the end
of the fiscal year in which the applicable expense is incurred.



     3. BENEFITS



     3.1 BENEFITS. During the Employment Period, Bergman shall be entitled to participate in all
benefit, welfare, perquisite, equity and other similar plans, policies and programs, in accordance
with the terms as are generally provided from time to time by the Company for its senior management
employees and for which Bergman is eligible. Unless



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Bergman’s employment shall have been terminated for Cause (in the manner and as defined in
Section 4.3), during the period commencing immediately after Bergman’s termination of employment
for any reason and continuing (x) as to Bergman, for the life of Bergman, and (y) as to Bergman’s
spouse, for the life of his spouse, the Company shall continue the participation of Bergman and his
spouse in all health and medical benefit plans, policies and programs in effect from time to time
with respect to the senior executive officers of the Company and their families generally (at the
same levels and at the same cost, if any, as provided to the senior executive officers of the
Company generally immediately prior to his date of termination). Notwithstanding the foregoing, in
the event the plan under which Bergman and his spouse were receiving health benefits immediately
prior to Bergman’s date of termination is not fully-insured or would trigger excise taxes or other
penalties on the Company if provided to Bergman and/or his spouse after Bergman’s date of
termination, then the Company shall either (A) provide health coverage to Bergman and his spouse
pursuant to a fully-insured replacement policy or (B) in lieu of such health coverage pay Bergman
(or to his spouse, as applicable, in the event of his death) annual cash payments equal to the cost
to Bergman (and/or his spouse) to obtain a replacement policy (i.e., the premium costs), as
determined on the termination date (adjusted for increase in the cost-of-living index, as defined
in Treasury regulation § 1.401(a)(9)-6, Q&A-14(b)(2)); in either case for the remaining lives of
Bergman and his spouse. In all cases, the annual cash payments described above (if applicable),
will be paid on each anniversary of Bergman’s date of termination, commencing with the one-year
anniversary of such date.




     3.2 VACATION. During each calendar year during the Employment Period, Bergman shall be
entitled to four weeks of vacation and such other number of personal days generally afforded to
senior executive officers of the Company.



     3.3 AUTOMOBILE. During the Employment Period, the Company shall provide Bergman with first
priority, non-exclusive use of a car and driver on the same basis as immediately prior to the
Effective Date. At Bergman’s option, the Company shall provide Bergman with the use of a new
automobile during the Employment Period, similarly equipped to that last provided to him under the
Prior Agreement, and shall pay the costs of fuel, maintenance, repairs and insurance. If Bergman’s
employment hereunder is terminated by the Company without Cause (as defined in Section 4.3), by the
Company choosing not to extend the Employment Period, upon Bergman’s Disability, by Bergman for
Good Reason pursuant to Section 4.1(c)(i), or by Bergman voluntarily pursuant to Section
4.1(c)(ii), the Company shall continue the arrangements in effect immediately prior to his
termination of employment until the second anniversary of Bergman’s date of termination. If
Bergman’s employment is terminated by the Company without Cause, by the Company choosing not to
extend the Employment Period, or by Bergman for Good Reason pursuant to Section 4.l(c)(i), in any
such case within two years after the date of a Change in Control, the Company shall continue the
transportation arrangements in effect immediately prior to his termination of employment until the
last day of the second calendar year following the calendar year in which Bergman’s date of
termination occurs, and (ii) shall pay on the second anniversary of Bergman’s date of termination a
lump sum in cash equal to the value of the applicable benefits specified in the prior sentence for
the period from the last day of the second calendar year following the calendar year on which the
termination date occurs until the third anniversary of his date of termination.



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     3.4 CONVERSION OF BENEFITS. During the Employment Period, Bergman shall be entitled to the
same conversion privileges (including but not limited to cash conversions) with regard to the
Company’s benefit plans, policies and programs in which Bergman is entitled to participate under
Section 3.1 as may be generally offered from time to time by the Company to its senior executive
officers; provided that in the event of a cash conversion, the payment of such cash conversion
shall be made no later than the later of (i) the 15th day of the third month following
the end of the calendar year in which the benefit is offered to senior executive officers or (ii)
the 15th day of the third month following the end of the fiscal year in which the
benefit is offered to senior executive officers.



     4. TERMINATION



     4.1 TERMINATION OF EMPLOYMENT. Bergman’s employment (and the Employment Period) shall
terminate prior to the Employment Expiration Date upon the occurrence of any of the following
events:




          (a) upon Bergman’s death or Bergman’s Disability (pursuant to Section 4.2); or




          (b) (i) by action of the Company for Cause; or (ii) by action of the Board of Directors
without Cause upon 90 days’ prior written notice to Bergman; or




          (c) by Bergman (i) following the occurrence of an event that constitutes Good Reason,
as hereinafter defined, or (ii) voluntarily upon 180 days prior written notice to the
Company.



     A “Change in Control” shall be deemed to occur upon any of the following:



     (A) acquisition of “beneficial ownership” (within the meaning of Rule 13d-3 promulgated under
the Securities and Exchange Act of 1934, as amended (the “Act”)) by any one “person” (as such term
is defined in Section 3(a)(9) of the Act) or by any two or more persons deemed to be one “person”
(as used in Section 13(d) or 14(d) of the Act)(each referred to as a “Person”) excluding the
Company, any subsidiary of the Company and any employee benefit plan sponsored or maintained by the
Company or any subsidiary of the Company (including any trustee of any such plan acting in his or
its capacity as trustee), of 33% or more of the combined total voting power of the then-outstanding
voting securities of the Company (the “Outstanding Voting Securities”) without the prior express
approval of the Board of Directors;



     (B) acquisition of “beneficial ownership” by any Person excluding the Company, any subsidiary
of the Company and any employee benefit plan sponsored or maintained by the Company or any
subsidiary of the Company (including any trustee of any such plan acting in his or its capacity as
trustee), of more than 50% of the combined total voting power of the then Outstanding Voting
Securities;



     (C) directors elected to the Board of Directors over any 24-month period (except in the case
of a Change in Control referred to in Section 5.4(c), a twelve-month period) not nominated by the
Company’s Nominating & Corporate Governance Committee (or a committee of the Board of Directors
performing functions substantially similar to such committee) represent



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30% (except in the case of a Change in Control referred to in Section 5.4(c), a majority) or
more of the total number of directors constituting the Board of Directors at the beginning of the
period, (or such nomination results from an actual or threatened proxy contest);




     (D) any merger, consolidation or other corporate combination of the Company (a “Transaction”),
other than (i) a Transaction involving only the Company and one or more of its subsidiaries, or
(ii) a Transaction immediately following which the stockholders of the Company immediately prior to
the Transaction continue to be the beneficial owners of securities of the resulting entity
representing more than 50% of the voting power in the resulting entity, in substantially the same
proportions as their ownership of Outstanding Voting Securities immediately prior to the
Transaction; and



     (E) upon the sale of all or substantially all of the consolidated assets of the Company, other
than (i) a distribution to stockholders, or (ii) a sale immediately following which the
stockholders of the Company immediately prior to the sale are the beneficial owners of securities
of the purchasing entity representing more than 50% of the voting power in the purchasing entity,
in substantially the same proportions as their ownership of Outstanding Voting Securities
immediately prior to the Transaction.


Solely for purposes of Section 5.4(c), no Change in Control shall be deemed to have occurred unless
the circumstances of such Change in Control would be treated as having resulted in the occurrence
of a “change in control event” as such term is defined in Treasury Regulation Section
1.409A-3(i)(5)(i).




     A “Good Reason” event shall have occurred upon the taking of any of the following actions,
without Bergman’s written consent; provided that a Good Reason event shall not be deemed to have
occurred unless Bergman shall have given written notice to the Company specifying the Good Reason
event within 90 days of the occurrence of such event:




	 	(a)	 	a material reduction or material adverse change in Bergman’s responsibilities,
duties, positions or authority, as provided in the Agreement, including, the failure to
appoint Bergman to, or to continue Bergman in, any position to which he is required to
be appointed under this Agreement.
	 
	 	(b)	 	any failure by the Company to provide the compensation, or any failure by the
Company to provide the material benefits, agreed to be provided under this Agreement;
provided, however, that any reduction in benefits generally applicable
to senior management employees shall not constitute Good Reason;
	 
	 	(c)	 	any change in location of the Company’s principal executive offices outside of
the New York metropolitan area (which shall consist solely of New York City, Long
Island and any other location within 35 miles of the Company’s current principal
executive offices);
	 
	 	(d)	 	any failure of the Company to obtain the express assumption of this Agreement
as provided in Section 9(a) or 9(b), unless such assumption occurs by operation of law;




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provided, however, that (i) a “Good Reason” event will not include acts which are
cured by the Company within 30 days from receipt by it of a written notice from Bergman identifying
in reasonable detail the act or acts constituting “Good Reason,” and (ii) if the Company has failed
to cure as provided above, a “Good Reason” event will not exist unless Bergman has thereafter given
notice of termination for Good Reason within 30 days after the earlier of the expiration of the
30-day cure period or the Company’s notice to Bergman that it will not cure such Good Reason event.




     4.2 DISABILITY. If, by reason of physical or mental disability, Bergman (i) is unable to
carry out the material duties he has agreed to carry out under this Agreement for more than 180
days in any twelve-month period or (ii) is expected to be unable to carry out his duties for such
period as certified by a Licensed Physician (“Disability”), the Employment Period shall terminate
hereunder. A “Licensed Physician” shall be any qualified physician licensed to practice medicine
in the State of New York as shall be mutually agreed by the Company and Bergman (or his
representatives), such approval not to be unreasonably withheld or delayed. Bergman shall submit
to an examination by a physician for purposes of the preceding provisions upon the request of the
Board of Directors. During any period of Disability prior to such termination, Bergman shall
continue to receive all compensation and other benefits provided herein as if he had not been
disabled at the time, in the amounts and in the manner provided herein, provided that the Company
shall be entitled to a credit against such amounts with regard to the amount, if any, paid to
Bergman for such period under any disability plan of the Company.



     4.3 CAUSE. For purposes of this Agreement, the term “Cause” shall be limited to (i) action or
omission by Bergman involving willful malfeasance or willful misconduct having a material adverse
effect on the Company (whether economically or as to reputation), (ii) Bergman being convicted of,
or pleading NOLO CONTENDERE to, a felony (other than resulting from a traffic violation or like
event) or being convicted of any other crime involving intentional dishonesty or fraud, (iii) any
other action by Bergman constituting a material breach of Section 6 of this Agreement which is not
cured within 30 days after notice from the Company. In the case of (i) above, no act or omission
by Bergman shall be considered willful if it is done or omitted in good faith and with a reasonable
belief that it was in the best interests of the Company. Termination by the Company for Cause
pursuant to (i) or (iii) above will not be effective unless the Board of Directors has voted to
terminate Bergman for Cause at a meeting of the Board of Directors called for such purpose after
Bergman has been afforded at least three days notice of the meeting and an opportunity to be heard
at a meeting of the Board of Directors; provided, however, that the Board of
Directors may suspend Bergman with pay and benefits pending such Board of Directors meeting.



     5. CONSEQUENCES OF TERMINATION



     5.1 DEATH. If Bergman’s employment hereunder is terminated by reason of Bergman’s death, the
Company shall have no further obligation to Bergman under this Agreement except that Bergman’s
heirs or estate shall be paid those obligations accrued hereunder to the date of his death,
consisting only of (a) Bergman’s unpaid Base Salary to the extent unpaid through the date of
termination, (b) the annual Incentive Compensation due to Bergman, if any, for the last full fiscal
year of the Company ending prior to the date of termination (if not previously paid), (c) the
product of (i) the annual Incentive Compensation



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payable to Bergman for the fiscal year of the Company (based on the actual achievement of the
specified goals) in which Bergman’s date of termination occurs multiplied by (ii) a fraction, the
numerator of which is the number of days in such fiscal year during which Bergman was employed by
the Company, and the denominator of which is 365, (d) any accrued and unpaid vacation pay, and (e)
to the extent permitted under this Agreement, any other amounts or benefits owing to Bergman or his
beneficiaries under the then applicable benefit plans, policies and programs of the Company. (All
amounts determined pursuant to the provisions of clauses (a) through (e) above are hereinafter
referred to as “Accrued Obligations”.) Unless otherwise required by any benefit plan qualified
under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”) (any such plan
hereinafter referred to as a “Qualified Plan”), the Accrued Obligations described in clauses (a),
(b), (d) and (e) above shall be paid to Bergman’s estate or designated beneficiaries, as the case
may be, in a lump sum (to the extent such obligations are able to be paid in a lump sum, under the
terms of the plan for which such obligation arose) in cash within 15 business days after the date
of Bergman’s death, and, otherwise, in accordance with the terms of the applicable plan or
applicable law. The Accrued Obligation described in clause (c) above shall be paid in a lump sum
to Bergman’s estate or designated beneficiaries, as the case may be, at the time specified in the
last sentence of Section 2.2. Nothing in this Section 5.1 shall be deemed to affect the right of
Bergman’s spouse to receive the applicable benefits referred to in Section 3.1.




     5.2 COMPANY TERMINATION FOR CAUSE; RESIGNATION OTHER THAN FOR GOOD REASON; BERGMAN
NON-RENEWAL. If Bergman’s employment hereunder is terminated by the Company for Cause, by Bergman
voluntarily pursuant to Section 4.1(c)(ii), or by Bergman by non-renewal pursuant to Section 1.2,
the Company shall have no further obligation to Bergman under this Agreement, except that, unless
otherwise required by any Qualified Plan, Bergman shall be paid all Accrued Obligations to the date
of termination (other than the obligations specified in clauses (b) and (c) of Section 5.1) in a
lump sum (to the extent such obligations are able to be paid, under the terms of the plan for which
such obligation arose, in a lump sum) in cash within 15 business days after the date of
termination, and, otherwise, in accordance with the terms of the applicable plan or applicable law.
Bergman shall not be entitled to receive the amounts specified in clauses (b) and (c) of Section
5.1. Nothing in this Section 5.2 shall be deemed to affect the right of Bergman or his spouse, as
applicable, to receive the applicable benefits referred to in Sections 3.1, 3.3 and 5.5, unless
Bergman’s employment has been terminated by the Company for Cause.



     5.3 COMPANY TERMINATION WITHOUT CAUSE OR DUE TO DISABILITY; RESIGNATION FOLLOWING GOOD REASON;
COMPANY NON-RENEWAL. Subject to Section 5.4(c), if Bergman’s employment hereunder is terminated
due to Disability pursuant to Section 4.2 or by the Company without Cause, or by Bergman for Good
Reason pursuant to Section 4.1(c)(i) above, or if the Company at any time chooses not to extend or
not to continue to extend the Employment Period, in each case prior to the occurrence of a Change
in Control, the Company shall have no further obligation to Bergman under this Agreement except
that:




          (a) Unless otherwise required by any Qualified Plan, Bergman shall be paid the Accrued
Obligations to the date of termination (other than the obligations specified in clauses (b)
and (c) of Section 5.1) in a lump sum (to the extent such obligations are able to be paid in
a lump sum, under the terms of the plan for which such



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obligation arose) in cash within 15 business days after the date of termination, and,
otherwise, in accordance with the terms of the applicable plan or applicable law; provided,
that the obligations specified in clauses (b) and (c) of Section 5.1 shall be paid in a lump
sum in cash at the time specified in the last sentence of Section 2.2.




          (b) Bergman shall be paid, as severance pay, on the day immediately following the
six-month anniversary of his date of termination:




	 	(i)	 	in a lump sum in cash, an amount
equal to 200% of Bergman’s then annual Base Salary plus, in a
lump sum in cash, an amount equal to 200% of Bergman’s average
annual Incentive Compensation recommended by the Compensation
Committee to be paid or payable with respect to the immediately
preceding three fiscal years of the Company ending prior to the
date of termination; and
	 
	 	(ii)	 	in a lump sum in cash, an amount
equal to the Make-Up Pension Payment (as defined below). For
purposes of this Agreement, the “Make-Up Pension Payment” shall
mean with respect to each “pension plan” (as such term is
defined in Section 3(2)(A) of the Employee Retirement Income
Security Act of 1974, as amended) of the Company (or its
subsidiaries) in which Bergman participated or had a benefit
under at the date of termination, the value of the excess of (A)
the fully vested value of the benefit to him under such plan,
assuming additional credit for service for all purposes under
such plan for the period from the date of termination through
the Employment Expiration Date (the “Remaining Term”),
continuation of Bergman’s Base Salary for the Remaining Term,
and that there are no earnings on plan funds in defined
contribution type plans for any period after the date of
termination, over (B) Bergman’s vested accrued benefits pursuant
to the provisions of each respective plan on the date of
termination. (For purposes of calculating the Make-Up Pension
Payment, the value of the excess shall be calculated using a
discount rate equal to the applicable federal rate (as defined
in Code Section 1274) in effect on the date of termination of
employment and no other actuarial assumptions). Notwithstanding
the foregoing, for purposes of any termination of employment
occurring during the Employment Period, the “Remaining Term”
under this clause (ii) shall mean the period from the date of
termination through the immediately succeeding December 31.




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          (c) Nothing in this Section 5.3 shall be deemed to affect the right of Bergman or his
spouse, as applicable, to receive the applicable benefits referred to in Sections 3.1, 3.3
and 5.5.




          (d) With respect to an amount due to Bergman pursuant to Section 5.3(b)(i), the Company
shall be entitled to a credit against such amount with regard to the amount, if any, payable
to Bergman for such period under any disability plan of the Company.



     5.4 TERMINATION OF EXECUTIVE IN CONNECTION WITH A CHANGE IN CONTROL. If Bergman’s employment
is terminated by the Company without Cause or by Bergman for Good Reason pursuant to Section
4.1(c)(i) within two years following a Change in Control, the Company shall have no further
obligation to Bergman under this Agreement except that:




          (a) Unless otherwise required by any Qualified Plan, Bergman shall be paid all Accrued
Obligations (other than the obligations specified in clauses (b) and (c) of Section 5.1) to
the date of termination in a lump sum (to the extent such obligations are able to be paid in
a lump sum, under the terms of the plan for which such obligation arose) in cash within 15
business days after the date of termination and, otherwise, in accordance with the terms of
the applicable plan or applicable law; provided, that the obligations specified in clauses
(b) and (c) of Section 5.1 shall be paid in a lump sum in cash at the time specified in the
last sentence of Section 2.2.




          (b) Bergman shall be paid, as severance pay, on the day immediately following the
six-month anniversary of his date of termination:




	 	(i)	 	in a lump sum in cash, an amount
equal to 300% of Bergman’s then annual Base Salary plus, in a
lump sum in cash, an amount equal to 300% of Bergman’s annual
Incentive Compensation recommended by the Compensation Committee
to be paid or payable with respect to whichever of the
immediately preceding two fiscal years of the Company ending
prior to the date of termination was higher; and
	 
	 	(ii)	 	in a lump sum in cash, an amount
equal to the Make-Up Pension Payment (as defined above).






          (c) In the event Bergman’s employment is terminated by the Company without Cause (i)
within 90 days prior to the occurrence of a Change in Control, or (ii) after the first
public announcement of the pendency of a Change in Control (but on or prior to a Change in
Control), Bergman shall be paid, as additional severance pay, on the day immediately
following the later of the six-month anniversary of his date of termination and the date of
the occurrence of the Change in Control, a lump sum cash amount equal to the sum of:



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	 	(i)	 	the excess, if any, of (A) 300%
of Bergman’s annual Base Salary at the rate in effect
immediately preceding such termination of employment, plus 300%
of Bergman’s annual Incentive Compensation recommended by the
Compensation Committee to be paid or payable with respect to
whichever of the immediately preceding two fiscal years of the
Company ending prior to the date of termination was higher, over
(B) the amount paid or payable to Bergman pursuant to Section
5.3(b)(i) (whether or not such amount has then been paid); and
	 
	 	(ii)	 	the excess, if any, of (A) the
aggregate per share cash consideration, and the fair market
value on such date of the aggregate per share non-cash
consideration, paid or payable to the Company’s common
stockholders in the transaction which is the basis for the
Change in Control, (or if no such consideration was then
payable, the last trading price of the Company’s common stock on
the day immediately preceding the date of the event that
resulted in the occurrence of the Change in Control), over (B)
the strike price per share that would have been required to be
paid in order to exercise each tranche of unvested options that
expired at the time of Bergman’s prior termination of
employment, times the number of shares of Common Stock covered
by each such tranche (such calculation to be performed
separately for each tranche with a different strike price, and
the aggregate amounts so calculated being the amount required to
be paid under this clause (ii)).






The amounts provided for under this Section 5.4(c) are in addition to, and not in lieu of,
the amounts provided for under Section 5.3.




          (d) Nothing in this Section 5.4 shall be deemed to affect the right of Bergman or his
spouse, as applicable, to receive the applicable benefits referred to in Sections 3.1, 3.3
and 5.5.




          (e) In the event that Bergman shall become entitled to the payments and/or benefits
provided by this Section 5.4 or any other amounts (whether pursuant to the terms of this
Agreement, including Section 5.3, or any other plan, arrangement or agreement with the
Company) (collectively the “Company Payments”) and such Company Payments will be subject to
the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may
hereafter be imposed), then the Company Payments shall be either (A) delivered in full or
(B) delivered as to such lesser extent, as would result in no portion of such amounts being
subject to the Excise Tax, whichever of the foregoing results in the receipt by Bergman on a
net after-tax basis of the greatest amount, notwithstanding that all of some of the amounts
may be taxable under Code Section 4999. If a reduction is to occur pursuant to clause (B)
of the prior



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sentence,unless an alternative election is permitted by, and does not result in taxation under,
Code Section 409A and timely elected by Bergman, the Company Payments shall be cutback to an
amount that would not give rise to any Excise Tax by reducing payments and benefits in the
following order: (1) accelerated vesting of restricted stock awards, to the extent
applicable; (2) accelerated vesting of stock options, to the extent applicable; (3) payments
under Section 5.4(b)(i) or 5.4(c)(i) hereof, as applicable; (4) payments under Section
5.4(b)(ii) hereof, if applicable; and (5) continued health insurance under Section 3.1
hereof.




          (f) For purposes of determining whether any of the Company Payments will be subject to
the Excise Tax and the amount of such Excise Tax, (i) the Company Payments shall be treated
as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all
“parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of
the Code) shall be treated as subject to the Excise Tax, unless and except to the extent
that, in the written opinion (at the substantial authority level) of the Company’s
independent certified public accountants appointed prior to any change in ownership (as
defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants
(the “Accountants”) such Company Payments (in whole or in part) either do not constitute
“parachute payments,” represent reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are
otherwise not subject to the Excise Tax, and (ii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the Accountants in accordance with the
principles of Section 280G of the Code.




          (g) For purposes of determining whether clause (A) or clause (B) of Section 5.4(e)
applies to the amount of the Company Payments, Bergman’s actual marginal rate of federal
income taxation in the calendar year in which the Company Payments are to paid shall be used
and the actual marginal rate of taxation in the state and locality of Bergman’s residence
for the calendar year in which the Company Payments are to be made shall be used, net of the
maximum reduction in federal income taxes which could be obtained from deduction of such
state and local taxes if paid in such year, after taking into account the limitation on the
deductibility of itemized deductions, including such state and local taxes under Section 68
of the Code.



     5.5 OFFICE SUPPORT. If Bergman’s employment hereunder is terminated by the Company without
Cause (as defined in Section 4.3), by the Company choosing not to extend the Employment Period,
upon Bergman’s Disability, by Bergman for Good Reason pursuant to Section 4.1(c)(i), or by Bergman
voluntarily pursuant to Section 4.1(c)(ii), prior to the occurrence of a Change in Control, then
the Company (i) shall provide Bergman, at the Company’s cost, an office comparable to that used by
him prior to his termination and related office support (including making available the services of
one executive assistant) until the last day of the second calendar year following the calendar year
in which Bergman’s date of termination occurs and (ii) shall pay on the second anniversary of
Bergman’s date of termination a lump sum in cash equal to the value of the office and related
office support specified above (including the costs of one executive assistant) for the period from
the last day of the second calendar year following the calendar year on which date of termination
occurs until the third



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anniversary of his date of termination. If Bergman’s employment hereunder has been terminated
by the Company choosing not to extend the Employment Period, upon Bergman’s Disability, by Bergman
for Good Reason pursuant to Section 4.l(c)(i), or by Bergman voluntarily pursuant to Section
4.1(c)(ii), on or after the occurrence of a Change in Control, the Company (i) shall provide
Bergman such office and related office support (including making available the services of one
executive assistant) until the last day of the second calendar year following the calendar year in
which Bergman’s date of termination occurs and (ii) shall pay on the second anniversary of
Bergman’s date of termination a lump sum in cash equal to the value of the office and related
office support specified above (including the costs of one executive assistant) for the period from
the last day of the second calendar year following the calendar year on which date of termination
occurs until the fourth anniversary of his date of termination.




     5.6 VESTING OF OPTIONS, ETC. Notwithstanding anything to the contrary in any other agreement
between the Company and Bergman, upon the occurrence of a “Change in Control” as such term is
defined in Section 4.1, any and all options held by Bergman (or his assignees, if assignment is
permissible) to purchase Company capital stock, to the extent not theretofore vested, shall be
fully vested and, with respect to any and all shares of stock theretofore issued to Bergman bearing
restrictions on transfer imposed by the Company, such restrictions shall thereupon lapse.



     6. CONFIDENTIAL INFORMATION, NON-COMPETITION, ETC.




          (a) (i) Both during and after the Employment Period, Bergman shall hold in a fiduciary
capacity for the benefit of the Company and shall not, without the prior written consent of
the Company, communicate or divulge (other than in the regular course of the Company’s
business), to anyone other than the Company, its subsidiaries and those designated by it,
any confidential or proprietary information, knowledge or data relating to the Company or
any of its subsidiaries, or to any of their respective businesses, obtained by Bergman
before or during the Employment Period except to the extent (A) disclosure is made during
the Employment Period by Bergman in the course of his duties hereunder and Bergman
reasonably determines in good faith that it is in the best interest of the Company to do so,
(B) Bergman is compelled pursuant to an order of a court or other body having jurisdiction
over such matter to do so (in which case the Company shall be given prompt written notice of
such intention to divulge not less than five days prior to such disclosure or such shorter
period as the circumstances may reasonably require) or (C) such information, knowledge or
data is or becomes public knowledge or is or becomes generally known within the Company’s
industry other than through improper disclosure by Bergman.




	 	(ii)	 	Bergman acknowledges and agrees
that the whole interest in any invention, improvement,
confidential information, copyright, design, plan, drawing or
data, including all worldwide rights to copyrights or any other
intellectual property rights (collectively, the “Rights”)
arising out of or resulting from Bergman’s performance of his
duties during the Employment Period shall be the sole and
exclusive property of the Company. Bergman undertakes (at the




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	 	 	 	expense of the Company) to execute any document or do any
reasonably necessary act to enable the Company to obtain or
to assist the Company in obtaining any Rights. Bergman
hereby irrevocably appoints the Company to be his
attorney-in-fact to execute in his name and on his behalf any
instrument required and take any actions reasonably necessary
for the purpose of giving to the Company the full benefit of
the provisions of this subsection; provided,
however, that the Company shall notify Bergman prior
to executing any such instruments or taking any such actions.






          (b) Bergman will not (other than on behalf of the Company) directly or indirectly,
during the Employment Period and thereafter until the end of the “Restricted Period,” as an
individual proprietor, partner, stockholder, officer, employee, director, joint venturer,
investor, lender, or in any other capacity whatsoever (other than as the holder of not more
than one percent (1%) of the total outstanding stock of a publicly held company other than
Schein Pharmaceutical, Inc., (x) engage in any activity competitive with a material segment
of the business of the Company, or (y) recruit, solicit or induce any employee or employees
of the Company (other than his personal administrative assistant) to terminate their
employment with, or otherwise cease their relationship with, the Company. The “Restricted
Period” shall end (A) one year after termination of employment if termination is due to a
termination by the Company without Cause, by Bergman for Good Reason pursuant to Section
4.1(c)(i), or because of Bergman’s Disability (such one-year period may be extended for an
additional year at the Company’s option; provided, however, that upon making
such election which shall be made no less than 180 days prior to the expiration of such
one-year period, the Company shall pay Bergman on the day immediately following the
six-month anniversary of his date of termination, a lump sum cash amount equal to 100% of
his Base Salary (as of the date of such termination)), or (B) upon the later of the second
anniversary of the expiration of the Employment Period and the Employment Expiration Date,
if such termination is due to a termination by the Company for Cause or by Bergman
voluntarily pursuant to Section 4.1(c)(ii).




          (c) If any restriction set forth in Section 6(b) is found by any court of competent
jurisdiction or arbitrator to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area, it shall be
interpreted to extend only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.




          (d) The restrictions contained in Sections 6(a) and (b) are necessary for the
protection of the business and goodwill of the Company and are considered by Bergman to be
reasonable to such purpose. Bergman acknowledges and agrees that money damages would not
adequately compensate the Company for any breach of Sections 6(a) or 6(b) and will cause the
Company substantial and irreparable damage and therefore, in the event of any such breach,
in addition to such other remedies which may be available, the Company shall have the right
to seek specific performance and injunctive relief.



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     7. NO MITIGATION; NO SET-OFF



     The Company agrees that if Bergman’s employment with the Company is terminated prior to the
Employment Expiration Date for any reason whatsoever, Bergman is not required to seek other
employment or to attempt in any way to reduce any amounts payable to Bergman by the Company
pursuant to this Agreement. Further, the amount of any payment provided for in this Agreement
shall not be reduced by any compensation earned by Bergman as the result of employment by another
employer or otherwise; and the amount of any benefit provided for in this Agreement (other than the
health and medical benefits to the extent provided for in Section 3.1) shall not be reduced by any
benefit provided to Bergman as the result of employment by another employer or otherwise. The
Company’s obligations to make the payments provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, or other
similar right which the Company may have against Bergman.



     8. LEGAL FEES



     If the Company fails to timely make any payment due hereunder and Bergman seeks to collect
such amounts or negotiate a settlement, and either (i) reaches a settlement for any part or all of
the payments provided for hereunder, or (ii) successfully enforces the terms of this Agreement,
through litigation or arbitration, by or through a lawyer, the Company shall advance all reasonable
costs of such collection or enforcement, including reasonable legal fees and disbursements and
other fees and expenses which Bergman may incur, promptly after submission of documentation
reasonably acceptable to the Company in respect of such costs and expenses. All amounts paid by
the Company shall promptly be refunded to the Company if and when a court of competent jurisdiction
finds that the Company is entitled to have such sums refunded or if a settlement is reached which
is insubstantial compared to the damages that were requested. The Company shall pay or reimburse
Bergman for all reasonable legal fees incurred by him in connection with the negotiation and
execution of this Agreement; provided that such payment or reimbursement shall be paid promptly and
in no event later than the later of (i) the 15th day of the third month following the
end of the calendar year in which the legal fees are incurred or (ii) the 15th day of
the third month following the end of the fiscal year in which the legal fees are incurred.



     9. SUCCESSORS; BINDING AGREEMENT




          (a) Unless otherwise resulting by operation of law, the Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company to expressly assume and
agree in writing to perform this Agreement in the same manner, and to the same extent that
the Company would be required to perform it if no such transaction had taken place. As used
in this Agreement, “Company” shall mean the Company as hereinbefore defined and any
successor to its business or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.



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          (b) The Company may not assign this Agreement except in connection with, and to the
acquiror of, all or substantially all of the business or assets of the Company, provided
such acquiror expressly assumes and agrees in writing to perform this Agreement as provided
in Section 9(a).




          (c) This Agreement shall inure to the benefit of and be enforceable by Bergman and his
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees; provided, however, that this Agreement
may not be assigned by Bergman.




          (d) The parties agree that, in addition to the persons or entities referred to in
Section 9(c) above, who shall be third party beneficiaries of the entire Agreement in the
event of Bergman’s death or Disability, Bergman’s spouse is a third party beneficiary of
Section 3.1 and, to the extent that the events described therein would cause her to be
entitled to the benefit of rights granted to her under Section 3.1, or any provision of
Section 5, she shall have the right to enforce such provisions as fully as if she were a
party to this Agreement.



     10. MISCELLANEOUS




          (a) Any notices or other communications required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly made, given or received when
hand-delivered, one business day after being transmitted by telecopier (confirmed by mail)
or sent by overnight courier against receipt, or five days after being mailed by registered
or certified mail, postage prepaid, return receipt requested, to the party to whom such
communication is given at the address set forth below, which address may be changed by
notice given in accordance with this Section:



          If to the Company:



Henry Schein, Inc.

135 Duryea Road

Melville, New York 11747

Attention: Corporate Secretary




          If to Bergman:



Stanley M. Bergman

c/o Henry Schein, Inc.

135 Duryea Road

Melville, New York 11747





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          (b) If any provision of this Agreement shall be held by court of competent jurisdiction to
be illegal, invalid or unenforceable, including, without limitation, under any provision of
the Sarbanes-Oxley Act of 2002, as amended from time to time, such provision shall be
construed and enforced as if it had been more narrowly drawn so as not to be illegal,
invalid or unenforceable and such illegality, invalidity or unenforceability shall have no
effect upon and shall not impair the enforceability of any other provision of this
Agreement.




          (c) No provision of this Agreement may be modified, waived or discharged except by a
waiver, modification or discharge in writing signed by Bergman and such officer as may be
designated by the Board of Directors. No waiver by either party hereto at any time of any
breach by the other party hereto of, or in compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the time or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with respect to the
subject matter have been made by either party which are not expressly set forth in this
Agreement.




          (d) This Agreement represents the entire agreement of the parties and shall supersede
any and all previous contracts, arrangements or understandings between the Company and
Bergman with respect to the subject matter, including, without limitation, as of the
effective date of this Agreement, the Prior Agreement.




          (e) This Agreement shall be construed, interpreted, and governed in accordance with the
laws of the State of New York, without reference to rules relating to conflicts of law.




          (f) The section headings herein are for the purpose of convenience only and are not
intended to define or limit the contents of any section.




          (g) The parties may sign this Agreement in counterparts, all of which shall be
considered one and the same instrument.




          (h) It is intended that the provisions of this Agreement comply with, or be exempt
from, Section 409A of the Code and the regulations and guidance promulgated thereunder
(collectively “Code Section 409A”), and all provisions of this Agreement (or of any award of
compensation, including equity compensation or benefits) shall be construed in a manner
consistent with the requirements for avoiding taxes or penalties under Code Section 409A.
Notwithstanding the foregoing, the Company does not guarantee any particular tax treatment
and the Company shall have no liability with regard to any failure to comply with Code
Section 409A. A termination of employment shall not be deemed to have occurred for purposes
of any provision of this Agreement providing for the payment of any amounts or benefits,
which are subject to Code Section 409A, upon or following a termination of employment unless
such termination is also a “separation from service” within the meaning of Code Section 409A
(and the guidance issued thereunder) and, for purposes of any such provision of this
Agreement,



16









 








references to a “resignation,” “termination,” “termination of employment,” “retirement” or like
terms shall mean separation from service.




          (i) Notwithstanding anything herein to the contrary, Bergman agrees that incentive
compensation, as defined under of the Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010 and such regulations as are promulgated thereunder from time to time
(“Dodd-Frank”), payable to Bergman under the Company’s bonus plans, this Agreement or any
other plan, arrangement or program established or maintained by the Company shall be subject
to any clawback policy adopted or implemented by the Company in respect of Dodd-Frank, or in
respect of any other applicable law or regulation.



     IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and year first above
written.



	 	 	 	 	 
	 	HENRY SCHEIN, INC.

 	 
	 	By:  	




/s/ Gerald A. Benjamin	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                                              /s/ Stanley M. Bergman
 	 
	 	 	STANLEY M. BERGMAN 	 
	 	 	 	 
	 




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