EXHIBIT 10.33
PolyMedica Corporation
Executive Retention Agreement
THIS EXECUTIVE RETENTION AGREEMENT by and between PolyMedica
Corporation, a Massachusetts corporation (the "Company"), and Xxxxxxx X. Xxx
(the "Executive") is executed as of this 9th day of February and shall commence
on the first date of the Executive's full time employment with the Company (the
"Effective Date") pursuant to that Executive Employment Agreement between the
Executive and the Company executed as of the date hereof.
WHEREAS, the Company recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control of the
Company exists and that such possibility, and the uncertainty and questions
which it may raise among key personnel, may result in the departure or
distraction of key personnel to the detriment of the Company and its
stockholders, and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that appropriate steps should be taken to reinforce and encourage the
continued employment and dedication of the Company's key personnel without
distraction from the possibility of a change in control of the Company and
related events and circumstances.
NOW, THEREFORE, as an inducement for and in consideration of the
Executive remaining in its employ, the Company agrees that the Executive shall
receive the severance benefits set forth in this Agreement in the event the
Executive's employment with the Company is terminated under the circumstances
described below subsequent to a Change in Control (as defined in Section 1.1).
1. Key Definitions.
As used herein, the following terms shall have the following respective
meanings:
1.1 "Change in Control" means an event or occurrence set forth
in any one or more of subsections (a) through (d) below (including an event or
occurrence that constitutes a Change in Control under one of such subsections
but is specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership of any capital stock of the Company if, after such acquisition, such
Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in excess of 50% of either (i) the then-outstanding shares of
common stock of the Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then-outstanding securities of the Company entitled
to vote generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change in Control: (i) any
acquisition directly from the Company (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for, convertible
into or exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security acquired
such security directly from the Company or an underwriter or agent of the
Company), (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i) and (ii)
of subsection (c) of this Section 1.1; or
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(b) such time as the Continuing Directors (as defined
below) do not constitute a majority of the Board (or, if applicable, the Board
of Directors of a successor corporation to the Company), where the term
"Continuing Director" means at any date a member of the Board (i) who was a
member of the Board on the date of the execution of this Agreement or (ii) who
was nominated or elected subsequent to such date by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election or whose election to the Board was recommended or endorsed by at least
a majority of the directors who were Continuing Directors at the time of such
nomination or election; provided, however, that there shall be excluded from
this clause (ii) any individual whose initial assumption of office occurred as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents, by or on behalf of a person other than the Board; or
(c) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share exchange involving the
Company or a sale or other disposition of all or substantially all of the assets
of the Company in one or a series of transactions (a "Business Combination"),
unless, immediately following such Business Combination, each of the following
two conditions is satisfied: (i) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company Common Stock
and Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the election of
directors, respectively, of the resulting or acquiring corporation in such
Business Combination (which shall include, without limitation, a corporation
which as a result of such transaction owns the Company or substantially all of
the Company's assets either directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to herein as the "Acquiring
Corporation") in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities, respectively; and (ii)
no Person (excluding the Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly, 20 % or more of the then
outstanding shares of common stock of the Acquiring Corporation, or of the
combined voting power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors (except to the extent
that such ownership existed prior to the Business Combination); or
(d) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company, other than in a bankruptcy
proceeding.
1.2 "Change in Control Date" means the first date during the
Term (as defined in Section 2) on which a Change in Control occurs. Anything in
this Agreement to the contrary notwithstanding, if (a) a Change in Control
occurs, (b) the Executive's employment with the Company is terminated prior to
the date on which the Change in Control occurs, and (c) it is reasonably
demonstrated by the Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change in Control or (ii) otherwise arose in connection with or in anticipation
of a Change in Control, then for all purposes of this Agreement the "Change in
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
1.3 "Cause" means:
(a) the Executive's willful and continued failure to
substantially perform his reasonable assigned duties as an officer of the
Company (other than any such failure resulting from incapacity due to physical
or mental illness or any failure after the Executive gives notice of termination
for Good Reason), which failure is not cured within 30 days after a written
demand for substantial performance is received by the Executive from the Board
of Directors of the Company which specifically identifies the manner in which
the Board of Directors believes the Executive has not substantially performed
the Executive's duties; or
(b) the Executive's willful engagement in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company.
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For purposes of this Section 1.3, no act or failure to act by the
Executive shall be considered "willful" unless it is done, or omitted to be
done, in bad faith and without reasonable belief that the Executive's action or
omission was in the best interests of the Company.
1.4 "Good Reason" means the occurrence, without the
Executive's written consent, of any of the events or circumstances set forth in
clauses (a) through (g) below. Notwithstanding the occurrence of any such event
or circumstance, such occurrence shall not be deemed to constitute Good Reason
if, prior to the Date of Termination specified in the Notice of Termination
(each as defined in Section 3.2(a)) given by the Executive in respect thereof,
such event or circumstance has been fully corrected and the Executive has been
reasonably compensated for any losses or damages resulting therefrom (provided
that such right of correction by the Company shall only apply to the first
Notice of Termination for Good Reason given by the Executive).
(a) the assignment to the Executive of duties
inconsistent in any material respect with the Executive's position (including
status, offices, titles and reporting requirements), authority or
responsibilities in effect immediately prior to the earliest to occur of (i) the
Change in Control Date, (ii) the date of the execution by the Company of the
initial written agreement or instrument providing for the Change in Control or
(iii) the date of the adoption by the Board of Directors of a resolution
providing for the Change in Control (with the earliest to occur of such dates
referred to herein as the "Measurement Date"), or any other action or omission
by the Company which results in a material diminution in such position,
authority or responsibilities;
(b) a reduction in the Executive's annual base salary
as in effect on the Measurement Date or as the same was or may be increased
thereafter from time to time;
(c) the failure by the Company to (i) continue in
effect any material compensation or benefit plan or program (including without
limitation any life insurance, medical, health and accident or disability plan
and any vacation or automobile program or policy) (a "Benefit Plan") in which
the Executive participates or which is applicable to the Executive immediately
prior to the Measurement Date, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such plan
or program, (ii) continue the Executive's participation therein (or in such
substitute or alternative plan) on a basis not materially less favorable, both
in terms of the amount of benefits provided and the level of the Executive's
participation relative to other participants, than the basis existing
immediately prior to the Measurement Date or (iii) award cash bonuses to the
Executive in amounts and in a manner substantially consistent with past practice
in light of the Company's financial performance;
(d) a change by the Company in the location at which
the Executive performs his principal duties for the Company to a new location
that is both (i) outside a radius of 35 miles from the Executive's principal
residence immediately prior to the Measurement Date and (ii) more than 20 miles
from the location at which the Executive performed his principal duties for the
Company immediately prior to the Measurement Date; or a requirement by the
Company that the Executive travel on Company business to a substantially greater
extent than required immediately prior to the Measurement Date;
(e) the failure of the Company to obtain the
agreement from any successor to the Company to assume and agree to perform this
Agreement, as required by Section 6.1;
(f) a purported termination of the Executive's
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 3.2(a); or
(g) any failure of the Company to pay or provide to
the Executive any portion of the Executive's compensation or benefits due under
any Benefit Plan within seven days of the date such compensation or benefits are
due, or any material breach by the Company of this Agreement or any employment
agreement with the Executive.
The Executive's right to terminate his employment for Good Reason shall
not be affected by his incapacity due to physical or mental illness.
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1.5 "Disability" means the Executive's absence from the
full-time performance of the Executive's duties with the Company for 180
consecutive calendar days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the Executive's
legal representative.
2. Term of Agreement. This Agreement, and all rights and obligations of
the parties hereunder, shall take effect upon the Effective Date and shall
expire upon the first to occur of (a) the expiration of the Term (as defined
below) if a Change in Control has not occurred during the Term, (b) the date 24
months after the Change in Control Date, if the Executive is still employed by
the Company as of such later date, or (c) the fulfillment by the Company of all
of its obligations under Sections 4 and 5.2 if the Executive's employment with
the Company terminates within 24 months following the Change in Control Date.
"Term" shall mean the period commencing as of the Effective Date and continuing
through the second anniversary thereof; provided, however, that commencing on
the date prior to the second anniversary of the Effective Date and each date
prior to all subsequent anniversaries of the Effective Date hereafter, the Term
shall be automatically extended for one additional year unless, not later than
90 days prior to the scheduled expiration of the Term (or any extension
thereof), the Company shall have given the Executive written notice that the
Term will not be extended.
3. Employment Status; Termination Following Change in Control.
3.1 Not an Employment Contract. The Executive acknowledges
that this Agreement does not constitute a contract of employment or impose on
the Company any obligation to retain the Executive as an employee and that this
Agreement does not prevent the Executive from terminating employment at any
time. If the Executive's employment with the Company terminates for any reason
and subsequently a Change in Control shall occur, the Executive shall not be
entitled to any benefits hereunder except as otherwise provided pursuant to
Section 1.2.
3.2 Termination of Employment.
(a) If the Change in Control Date occurs during the
Term, any termination of the Executive's employment by the Company or by the
Executive within 24 months following the Change in Control Date (other than due
to the death of the Executive) shall be communicated by a written notice to the
other party hereto (the "Notice of Termination"), given in accordance with
Section 7. Any Notice of Termination shall: (i) indicate the specific
termination provision (if any) of this Agreement relied upon by the party giving
such notice, (ii) to the extent applicable, set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated and (iii) specify the
Date of Termination (as defined below). The effective date of an employment
termination (the "Date of Termination") shall be the close of business on the
date specified in the Notice of Termination (which date may not be less than 15
days or more than 120 days after the date of delivery of such Notice of
Termination), in the case of a termination other than one due to the Executive's
death, or the date of the Executive's death, as the case may be. In the event
the Company fails to satisfy the requirements of Section 3.2(a) regarding a
Notice of Termination, the purported termination of the Executive's employment
pursuant to such Notice of Termination shall not be effective for purposes of
this Agreement.
(b) The failure by the Executive or the Company to
set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting any such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(c) Any Notice of Termination for Cause given by the
Company must be given within 90 days of the occurrence of the event(s) or
circumstance(s) which constitute(s) Cause. Prior to any Notice of Termination
for Cause being given (and prior to any termination for Cause being effective),
the Executive shall be entitled to a hearing before the Board of Directors of
the Company at which he may, at his election, be represented by counsel and at
which he shall have a reasonable opportunity to be heard. Such hearing shall be
held on not less than 15 days prior written notice to the Executive stating the
Board of Directors' intention to terminate the Executive for Cause and stating
in detail the particular event(s) or circumstance(s) which the Board of
Directors
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believes constitutes Cause for termination. Any such Notice of Termination for
Cause must be approved by an affirmative vote of two-thirds of the members of
the Board of Directors.
(d) Any Notice of Termination for Good Reason given
by the Executive must be given within 90 days of the occurrence of the events(s)
or circumstance(s) which constitute(s) Good Reason.
4. Benefits to Executive.
4.1 Stock Acceleration. If the Change in Control Date occurs
during the Term, then, effective upon the Change in Control Date, (a) each
outstanding option to purchase shares of Common Stock of the Company held by the
Executive shall become immediately exercisable in full and will no longer be
subject to a right of repurchase by the Company, (b) each outstanding restricted
stock award shall be deemed to be fully vested and will no longer be subject to
a right of repurchase by the Company.
4.2 Compensation. If the Change in Control Date occurs during
the Term and the Executive's employment with the Company terminates within 24
months following the Change in Control Date, the Executive shall be entitled to
the following benefits:
(a) Termination Without Cause or for Good Reason. If
the Executive's employment with the Company is terminated by the Company (other
than for Cause, Disability or Death) or by the Executive for Good Reason within
24 months following the Change in Control Date, then the Executive shall be
entitled to the following benefits:
(i) the Company shall pay to the Executive
in a lump sum in cash within 30 days after the Date of Termination the aggregate
of the following amounts:
(1) the sum of (A) the Executive's
base salary through the Date of Termination, (B) the product of (x) the annual
bonus paid or payable (including any bonus or portion thereof which has been
earned but deferred) for the most recently completed fiscal year and (y) a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(C) the amount of any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not previously paid (the sum of the
amounts described in clauses (A), (B), and (C) shall be hereinafter referred to
as the "Accrued Obligations"); and
(2) the amount equal to (A) two
multiplied by (B) the sum of (x) the Executive's highest annual base salary
during the three-year period prior to the Change in Control Date and (y) the
Executive's average bonus payment over the three-year period prior to the Change
in Control Date.
(ii) for 12 months after the Date of
Termination, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company shall continue to
provide benefits to the Executive and the Executive's family at least equal to
those which would have been provided to them if the Executive's employment had
not been terminated, in accordance with the applicable Benefit Plans in effect
on the Measurement Date or, if more favorable to the Executive and his family,
in effect generally at any time thereafter with respect to other peer executives
of the Company and its affiliated companies; provided, however, that if the
Executive becomes reemployed with another employer and is eligible to receive a
particular type of benefits (e.g., health insurance benefits) from such employer
on terms at least as favorable to the Executive and his family as those being
provided by the Company, then the Company shall no longer be required to provide
those particular benefits to the Executive and his family;
(iii) to the extent not previously paid or
provided, the Company shall timely pay or provide to the Executive any other
amounts or benefits required to be paid or provided or which the Executive is
eligible to receive following the Executive's termination of employment under
any plan, program, policy, practice, contract or agreement of the Company
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and its affiliated companies (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits"); and
(iv) for purposes of determining eligibility
(but not the time of commencement of benefits) of the Executive for retiree
benefits to which the Executive is entitled, the Executive shall be considered
to have remained employed by the Company until 12 months after the Date of
Termination.
(b) Resignation without Good Reason; Termination for
Death or Disability. If the Executive voluntarily terminates his employment with
the Company within 24 months following the Change in Control Date, excluding a
termination for Good Reason, or if the Executive's employment with the Company
is terminated by reason of the Executive's death or Disability within months
following the Change in Control Date, then the Company shall (i) pay the
Executive (or his estate, if applicable), in a lump sum in cash within 30 days
after the Date of Termination, the Accrued Obligations and (ii) timely pay or
provide to the Executive the Other Benefits.
(c) Termination for Cause. If the Company terminates
the Executive's employment with the Company for Cause within 24 months following
the Change in Control Date, then the Company shall (i) pay the Executive, in a
lump sum in cash within 30 days after the Date of Termination, the sum of (A)
the Executive's annual base salary through the Date of Termination and (B) the
amount of any compensation previously deferred by the Executive, in each case to
the extent not previously paid, and (ii) timely pay or provide to the Executive
the Other Benefits.
4.3 Taxes.
(a) Notwithstanding any other provision of this
Agreement, in the event that the Company undergoes a Change in Ownership or
Control (as defined below), the Company shall not be obligated to provide to the
Executive a portion of any "Contingent Compensation Payments" (as defined below)
that the Executive would otherwise be entitled to receive to the extent
necessary to eliminate any "excess parachute payments" (as defined in Section
280G(b)(1) of the Internal Revenue Code of 1986, as amended (the "Code")) for
the Executive. For purposes of this Section 4.3, the Contingent Compensation
Payments so eliminated shall be referred to as the "Eliminated Payments" and the
aggregate amount (determined in accordance with Proposed Treasury Regulation
Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent
Compensation Payments so eliminated shall be referred to as the "Eliminated
Amount."
(b) For purposes of this Section 4.3, the
following terms shall have the following respective meanings:
(i) "Change in Ownership or Control"
shall mean a change in the ownership or effective control of the Company or in
the ownership of a substantial portion of the assets of the Company determined
in accordance with Section 280G(b)(2) of the Code.
(ii) "Contingent Compensation Payment"
shall mean any payment (or benefit) in the nature of compensation that is made
or made available (under this Agreement or otherwise) to a "disqualified
individual" (as defined in Section 280G(c) of the Code) and that is contingent
(within the meaning of Section 280G(b)(2)(A)(i) of the Code) on a Change in
Ownership or Control of the Company.
(c) Any payments or other benefits otherwise due
to the Executive following a Change in Ownership or Control that could
reasonably be characterized (as determined by the Company) as Contingent
Compensation Payments shall not be made until the determination, pursuant to
this Section 4.3(c), of which Contingent Compensation Payments shall be treated
as Eliminated Payments. Within 30 days after each date on which the Executive
first becomes entitled to receive (whether or not then due) a Contingent
Compensation Payment relating to such Change in Ownership or Control, the
Company shall determine and notify the Executive (with reasonable detail
regarding the basis for its determinations) (i) which of such payments and
benefits constitute Contingent Compensation Payments and (ii) the Eliminated
Amount. Within 30 days after delivery of such notice to the Executive, the
Executive shall notify the Company which Contingent Compensation Payments, or
portions thereof (the aggregate amount of which, determined in accordance with
Proposed Treasury Regulation Section
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1.280G-1, Q/A-30 or any successor provision, shall be equal to the Eliminated
Amount), shall be treated as Eliminated Payments. In the event that the
Executive fails to notify the Company pursuant to the preceding sentence on or
before the required date, the Contingent Compensation Payments (or portions
thereof) that shall be treated as Eliminated Payments shall be determined by the
Company in its absolute discretion. In no event shall the Company be liable to
the Executive as a result of any factual or legal determination made by it
pursuant to this subsection (c) or for any information supplied by it to the
Executive or his advisors.
(d) The provisions of this Section 4.3 are
intended to apply to any and all payments or benefits available to the Executive
under this Agreement or any other agreement or plan of the Company under which
the Executive receives Contingent Compensation Payments.
4.4 Mitigation. The Executive shall not be required to
mitigate the amount of any payment or benefits provided for in this Section 4 by
seeking other employment or otherwise. Further, except as provided in Section
4.2(a)(ii), the amount of any payment or benefits provided for in this Section 4
shall not be reduced by any compensation earned by the Executive as a result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
4.5 Outplacement Services. In the event the Executive is
terminated by the Company (other than for Cause, Disability or Death), or the
Executive terminates employment for Good Reason, within 24 months following the
Change in Control Date, the Company shall provide outplacement services through
one or more outside firms of the Executive's choosing up to an aggregate amount
to be negotiated by the Executive and the Company, with such services to extend
until the earlier of (i) 12 months following the termination of Executive's
employment or (ii) the date the Executive secures full time employment.
5. Disputes.
5.1 Settlement of Disputes; Arbitration. All claims by the
Executive for benefits under this Agreement shall be directed to and determined
by the Board of Directors of the Company and shall be in writing. Any denial by
the Board of Directors of a claim for benefits under this Agreement shall be
delivered to the Executive in writing and shall set forth the specific reasons
for the denial and the specific provisions of this Agreement relied upon. The
Board of Directors shall afford a reasonable opportunity to the Executive for a
review of the decision denying a claim. Any further dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
5.2 Expenses. The Company agrees to pay as incurred, to the
full extent permitted by law, all legal, accounting and other fees and expenses
which the Executive may reasonably incur as a result of any claim or contest
(regardless of the outcome thereof) by the Company, the Executive or others
regarding the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive regarding the amount of any payment or benefits
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the
Code.
6. Successors.
6.1 Successor to Company. 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
expressly to assume and agree to perform this Agreement to the same extent that
the Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain an assumption of this Agreement at or
prior to the effectiveness of any succession shall be a breach of this Agreement
and shall constitute Good Reason if the Executive elects to terminate
employment, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
defined above 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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6.2 Successor to Executive. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable to the Executive or his family hereunder if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Executive's estate.
7. Notice. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) prepaid via a reputable
nationwide overnight courier service, in each case addressed to the Company, at
00 Xxxxx Xx., Xxxxxx, XX 00000, and to the Executive at 0000 XX 00 Xxxxx, Xxxx
Xxxxx, XX 00000 (or to such other address as either the Company or the Executive
may have furnished to the other in writing in accordance herewith). Any such
notice, instruction or communication shall be deemed to have been delivered five
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent via a reputable
nationwide overnight courier service. Either party may give any notice,
instruction or other communication hereunder using any other means, but no such
notice, instruction or other communication shall be deemed to have been duly
delivered unless and until it actually is received by the party for whom it is
intended.
8. Miscellaneous.
8.1 Employment by Subsidiary. For purposes of this Agreement,
the Executive's employment with the Company shall not be deemed to have
terminated solely as a result of the Executive continuing to be employed by a
wholly-owned subsidiary of the Company.
8.2 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
8.3 Injunctive Relief. The Company and the Executive agree
that any breach of this Agreement by the Company is likely to cause the
Executive substantial and irrevocable damage and therefore, in the event of any
such breach, in addition to such other remedies which may be available, the
Executive shall have the right to specific performance and injunctive relief.
8.4 Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the internal laws of the
Commonwealth of Massachusetts, without regard to conflicts of law principles.
8.5 Waivers. No waiver by the Executive at any time of any
breach of, or compliance with, any provision of this Agreement to be performed
by the Company shall be deemed a waiver of that or any other provision at any
subsequent time.
8.6 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but both of which
together shall constitute one and the same instrument.
8.7 Tax Withholding. Any payments provided for hereunder shall
be paid net of any applicable tax withholding required under federal, state or
local law.
8.8 Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of the
subject matter contained herein; and any prior agreement of the parties hereto
in respect of the subject matter contained herein is hereby terminated and
cancelled. Notwithstanding the foregoing, the effectiveness of the Employment
Agreement, dated as of the date hereof, between the Company and the Executive
(the "Prior Agreement") shall be suspended during the 24 months following the
Change in
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Control Date (the "Protected Period"), except as specifically set forth herein;
provided that if the Executive's employment is not terminated on or before the
last day of the Protected Period, then the Prior Agreement shall be effective
during the period, if any, from the end of the Protected Period through the end
of the Employment Period (as defined in the Prior Agreement)
8.9 Amendments. This Agreement may be amended or modified only
by a written instrument executed by both the Company and the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
Very truly yours,
/s/ Xxxx X.X. Xxxxx III
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Xxxx X.X. Xxxxx III
Senior Vice President and General Counsel
AGREED TO AND ACCEPTED:
/s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
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