Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 9th day of July, 2007,
by and between PolyMedica Corporation (the "Company"), a Massachusetts
corporation, and Xxxxxxxx Xxxxx, (the "Executive") (hereinafter collectively
referred to as the "parties"). The parties hereto agree that the terms of this
Agreement shall be effective as of April 1, 2007 (the "Effective Date").
WHEREAS, the Company recognizes the Executive's extraordinary experience
and the Company desires to retain the services and employment of the Executive;
and
WHEREAS, the Company and the Executive desire to enter into this Agreement
which will provide for the continued employment of the Executive by the Company
upon the terms and subject to the conditions set forth herein; and
WHEREAS, the Company (or one of the Company's direct or indirect
subsidiaries) and the Executive have previously entered into an employment
agreement, dated November 1, 2005 (the "Prior Agreement"), and the parties
hereby desire to terminate the Prior Agreement which shall be superseded by this
Agreement upon the execution hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties agree as follows:
1. Term. The initial term of employment under this Agreement will be for
the period commencing on the Effective Date and continuing in effect until March
31, 2010. The term of this Agreement shall be extended for successive one (1)
year terms at the end of the initial term and on each anniversary thereafter
unless the Company has provided written notice to the Executive at least 30 days
before the end of a term that the Agreement shall not be extended (the initial
term and any extensions thereof, the "Term"). Notwithstanding the foregoing, the
Executive's employment may be terminated during a Term as provided in Section 7
below.
2. Employment.
(a) The Executive will be employed as Executive Vice President and
Chief Financial Officer of PolyMedica Corporation or in such other position(s)
as may be mutually agreed upon by the parties. The Executive will perform the
duties, undertake the responsibilities and exercise the authority customarily
performed, undertaken and exercised by persons employed in a similar executive
capacity or as directed by PolyMedica's Chief Operating Officer or designee. The
Executive shall report directly to the Chief Operating Officer or designee.
(b) The Executive will devote his full working time, attention and
skill to the performance of his duties and responsibilities as an executive
employee of the Company in a trustworthy and professional manner, and will use
his best efforts to promote the interests of the Company. The Executive will
not, without prior written approval of the Board of Directors
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of the Company (the "Board"), engage in any other activities that would
interfere with the performance of his duties as an employee of the Company, are
in violation of written policies of the Company, are in violation of applicable
law, or would create an actual or perceived conflict of interest with respect to
the Executive's obligations as an employee of the Company. The Executive may (1)
with advance notice to and consent of the Board, serve on corporate, civil or
charitable boards or committees; (2) deliver lectures and teach at educational
institutions; (3) serve as a personal representative or trustee; (4) manage his
personal, financial and legal affairs; and (5) invest personally in any business
where no conflict of interest exists between such investment and the business of
the Company, provided those activities do not require a material time commitment
by the Executive or are otherwise contrary to any provision of this Agreement.
3. Compensation. For so long as the Executive is employed by the
Company under this Agreement, the Executive shall be paid the following
compensation:
(a) Base Salary. The Executive's initial base salary will be
$262,000 per annum (such base salary, as may be adjusted from time to time in
accordance with this Section, the "Base Salary"), from which shall be deducted
all required or authorized payroll deductions, including state and federal
withholdings. The Base Salary will be payable in accordance with the Company's
customary payroll practices applicable to its executives. The Base Salary will
be reviewed, and may be adjusted, at least annually in a manner designated by
the Board.
(b) Bonus. The Executive will be eligible for an annual bonus for
each fiscal year of his employment. Such bonus shall be based on a target equal
to a percentage of Executive's Base Salary as determined by the Board or the
Compensation Committee of the Board (the "Compensation Committee"). The Board,
or the Compensation Committee, in its sole discretion, shall establish the
eligibility criteria for such annual bonus, which may include Company financial
projections and management goals specific to the Executive. Each bonus earned by
the Executive will be paid to the Executive on or before 2 1/2 months following
the end of (i) the Company's fiscal year in which the applicable bonus was
earned, or (ii) the calendar year in which the applicable bonus was earned, as
applicable.
(c) Stock Based Compensation. The Executive will be eligible to
participate in PolyMedica's Employee Stock Purchase Plan and to be considered by
the Compensation Committee for grants or awards of stock options or other
stock-based compensation under PolyMedica's 2000 Stock Incentive Plan or similar
plans as in effect from time to time. All such grants or awards shall be
governed by the relevant plan documents and requirements and shall be evidenced
by PolyMedica's then-standard form of stock option, restricted stock or other
applicable agreement.
4. Employee Benefits. The Executive will be entitled to participate in all
employee benefit plans, practices and programs maintained by the Company and
made available to employees generally including, without limitation, all
pension, retirement, profit sharing, savings, health, hospitalization,
disability, dental, life or travel accident insurance benefit plans, vacation
and sick leave in accordance with the terms of such plans, practices and
programs as in effect from time to time.
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5. Executive Benefits. The Executive will be entitled to participate in
all executive benefit or incentive compensation plans now maintained or
hereafter established by the Company for the purpose of providing compensation
and/or benefits to executives of the Company. Unless otherwise provided herein
or as otherwise determined by the Compensation Committee of the Board, the
Executive's participation in such plans will be on the same basis and terms as
other similarly situated executives of the Company. No additional compensation
provided under any of such plans will be deemed to modify or otherwise affect
the terms of this Agreement or any of the Executive's entitlements hereunder.
6. Reimbursements and Other Benefits.
(a) Expenses. The Company will pay all reasonable and properly
documented expenses incurred by the Executive in furtherance of the Company's
business in accordance with applicable Company policies and procedures
("Expenses"), including, without limitation, traveling and entertainment
expenses, and will reimburse the Executive for all such reasonable expenses
advanced by him/her and not reimbursed prior to the date of this Agreement.
(b) Life Insurance. The Company will provide term life insurance on
the life of the Executive, for which the Executive shall designate the
beneficiaries, with a death benefit equal to 150% of the Executive's Base
Salary.
(c) Vacation. The Executive may be permitted to take (but shall not
be entitled to) up to four (4) weeks of paid vacation during each calendar year
at such times as shall be consistent with PolyMedica's vacation policies and, in
PolyMedica's judgment, with PolyMedica's vacation schedule for executives and
other employees. The Executive hereby agrees and acknowledges that the such
vacation time shall not accrue, that no unused vacation time will "roll forward"
from one year to the next pursuant to this Agreement or otherwise, and that,
accordingly, the Executive shall not be entitled to payment for any "unused"
vacation time upon termination of Executive's employment.
7. Termination and Compensation Upon Termination. The Executive's
employment hereunder may be terminated under the following circumstances:
(a) Definitions.
(i) Cause. For purposes of this Agreement, "Cause" means:
(A) a good faith finding by the Board that the Executive
failed to substantially perform his duties and obligations to the Company (other
than a failure resulting from the Executive's incapacity because of a
Disability, as defined in Section 7(a)(ii)), including but not limited to one or
more acts of gross negligence;
(B) a good faith finding by the Board of a material
breach of the Company's Code of Conduct or other policies and procedures;
provided that, if such material breach is determined by the Board, in its sole
discretion, to be curable, the material breach is not cured within 10 days after
a written demand for cure is received by the Executive from the Board which
specifically identifies the manner in which the Board believes the
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Executive has materially breached a provision of the Company's Code of Conduct
or other written policies of the Company;
(C) indictment or conviction (including the entry of a
plea of guilty or nolo contendere by the Executive) to any felony or any
misdemeanor or other criminal offense involving fraud, dishonesty, theft, breach
of trust or moral turpitude or that requires mandatory exclusion in any Federal
health care program pursuant to 42 U.S.C. Section 1320a-7(a) during the
Executive's employment;
(D) a good faith finding by the Board that the Executive
willfully engaged in conduct which is demonstrably and materially injurious to
the Company, monetarily or otherwise;
(E) a good faith finding by the Board that the Executive
materially breached this Agreement or the Confidentiality,
Non-Competition/Non-Solicitation and Work Product Agreement incorporated by
reference by Section 8 herein;
(F) the Executive's exclusion, debarment or suspension
from participation in any Federal health care programs or in Federal procurement
or nonprocurement programs; or
(G) the Executive's violation of the Securities Act of
1933 or the Securities Exchange Act of 1934.
(ii) Disability.
(A) Except as set forth in Section 7(a)(ii)(B) below,
for purposes of this Agreement, "Disability" means a physical or mental illness,
impairment or infirmity which renders the Executive unable to perform the
essential functions of his position, including his duties under this Agreement,
with reasonable accommodation, as determined by a physician selected by the
Company and acceptable to the Executive or the Executive's legal representative,
for at least one hundred eighty (180) days during any 365-consecutive-day
period.
(B) Notwithstanding the foregoing, to the extent that
any payment under this Agreement that is subject to Code Section 409A may be
triggered due to a Disability, "Disability" shall mean Executive (A) is unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than twelve
(12) months, or (B) is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than twelve (12) months, receiving
income replacement benefits for a period of not less than three (3) months under
a Company-sponsored group disability plan.
The Executive shall be entitled to the compensation and benefits
provided for under this Agreement for any period during the Term of this
Agreement and prior to the establishment of the Executive's Disability during
which the Executive is unable to work due to a physical or mental illness,
impairment or infirmity. Notwithstanding anything contained in
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this Agreement to the contrary, the Executive will be entitled to return to his
position with the Company as set forth in this Agreement in which event no
Disability of the Executive will be deemed to have occurred, until the
Termination Date specified in a Notice of Termination (as each term is
hereinafter defined) relating to the Executive's Disability.
(b) Termination and Compensation Upon Termination.
(i) Termination for Cause. The Company may terminate the
Executive's employment for Cause.
(A) If the Executive's employment is terminated by the
Company for Cause, then the Company will pay the Executive all amounts earned or
accrued hereunder through the Termination Date but not paid as of the
Termination Date, including (1) Base Salary; (2) Expenses incurred by the
Executive on behalf of the Company for the period ending on the Termination
Date; and (3) any bonus or incentive compensation with respect to the fiscal
year ended prior to the fiscal year in which the Termination Date occurs that
was earned and unpaid, (collectively, "Accrued Compensation").
(B) In the event that the Company terminates the
Executive's employment without Cause as set forth in Section 7(b)(ii), but the
Board determines subsequently that the Company had the right to terminate the
Executive's employment for Cause pursuant to this Section 7(b)(i), the Company
may terminate the payment of all amounts to the Executive pursuant to Section
7(b)(ii) and the Executive shall return all previous payments made to him
pursuant to Section 7(b)(ii) other than the Accrued Compensation.
(ii) Termination by the Company Without Cause. The Company may
terminate the Executive's employment without Cause. If the Executive's
employment with the Company is terminated without Cause (excluding any
termination due to the Executive's death or Disability), then the Company will
pay the Executive:
(A) all Accrued Compensation;
(B) any deferred compensation;
(C) a severance payment equal to 1.5 times the sum of
the Executive's highest Base Salary during the three-year period immediately
preceding the Termination Date (or during the period the Executive was employed
by the Company, if shorter than three years). The severance pay provided for in
this section shall be paid to the Executive in eighteen (18) equal monthly
installments on the first business day of each month following the Termination
Date except that the first payment shall not be sooner than the eighth day
following the date on which the Executive delivers to the Company the release
referred to in Section 7(b)(ii)(F) below.
(D) directly, or by reimbursing the Executive for, the
monthly premium for continuation coverage under the Company's health and dental
insurance plans, to the same extent that such insurance is provided to persons
currently employed by the Company, provided that the Executive makes a timely
election for such continuation coverage under the Consolidate Omnibus Budget
Reconciliation Act of 1985 ("COBRA"). The
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"qualifying event" under COBRA shall be deemed to have occurred on the
Termination Date. The Company's obligation under this paragraph shall end 18
months after the Termination Date or at such earlier date as the Executive
becomes eligible for comparable coverage under another employer's group
coverage. The Executive agrees to notify the Company promptly and in writing of
any new employment and to make full disclosure to the Company of the health and
dental insurance coverage available to him through such new employment.
(E) directly, or by reimbursing the Executive for, the
monthly premium to continue the life insurance provided for in Section 6(b) for
18 months following the Termination Date.
(F) The Company shall not be obligated to make the
payments otherwise provided for in Sections 7(b)(ii)(B), (C), (D) and (E) unless
the Executive provides to the Company, and does not revoke, a general release of
claims in a form satisfactory to the Company.
(G) The Company shall not be obligated to make the
payments otherwise provided for in Sections 7(b)(ii)(B), (C), (D) and (E) upon a
good faith finding by the Board of a material breach of the Confidentiality,
Non-Competition/Non-Solicitation and Work Product Agreement incorporated by
reference by Section 8 herein and the Executive shall return all previous
payments made to him pursuant to Sections 7(b)(ii)(B), (C), (D) and (E) after
the date on which the Executive materially breached the Confidentiality,
Non-Competition/Non-Solicitation and Work Product Agreement incorporated by
Section 8.
(H) Notwithstanding any other provision with respect to
the timing of payments under Sections 7(b)(ii)(B), (C), (D) and (E), to the
extent that the Executive is deemed to be a "key employee" within the meaning of
Code Section 416(i), any payments to which the Executive may become entitled
under Sections 7(b)(ii) (B), (C), (D) and (E) will not commence until the first
business day of the seventh month following the Termination Date, at which time
the Executive shall be paid an aggregate amount equal to seven monthly payments
otherwise due to the Executive under the terms of Sections 7(b)(ii)(B), (C), (D)
and (E). Commencing on the first business day of the eighth month following the
Termination Date and continuing each month thereafter, the Executive shall be
paid the regular monthly payment otherwise due to the Executive in accordance
with the terms of Sections 7(b)(ii) (B), (C), (D) and (E).
(iii) Disability. The Company may terminate the Executive's
employment upon the Executive's Disability. If the Executive's employment with
the Company is terminated because of his Disability, then the Company will pay
the Executive all Accrued Compensation. If the Executive's Disability meets the
definition set forth in Section 7(a)(ii)(B), the Company will also pay the
Executive any deferred compensation.
(iv) Death. The Company shall terminate the Executive's
employment because of the Executive's death. If the Executive's employment with
the Company terminates because of the Executive's death, then the Company will
pay the Executive's beneficiaries or heirs all Accrued Compensation and any
deferred compensation.
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(v) Resignation. The Executive may terminate this Agreement by
resigning upon thirty (30) days' prior written notice to the Board. If the
Executive's employment with the Company is terminated by the Executive's
resignation, then the Company will pay the Executive all Accrued Compensation
earned through the Termination Date specified in the Notice of Termination.
(c) Notice of Termination. Any purported termination by the Company
or by the Executive will be communicated by a written Notice of Termination to
the other. For purposes of this Agreement, a "Notice of Termination" means a
notice which indicates the specific termination provision in this Agreement
relied upon and sets forth the Termination Date (as defined below). For purposes
of this Agreement, no purported termination of employment will be effective
without a Notice of Termination.
(d) Termination Date. "Termination Date" will mean (i) in the case
of the Executive's Death, the Executive's date of Death; (ii) if the Executive's
employment is terminated for Disability, the date of the Executive's Disability;
(iii) if the Executive terminates his employment, on the effective date of
termination specified in the Notice of Termination; and (iv) if the Executive's
employment is terminated for any other reason, the date specified in the Notice
of Termination, which will not be longer than seven (7) days after the Notice of
Termination.
(e) Timing of Payment. The Accrued Compensation payable to the
Executive as provided in Sections 7(b)(i) - (v) will be paid pursuant to
applicable state law or within ten (10) business days after the Executive's
Termination Date, whichever period is shorter. Any deferred compensation will be
paid to the Executive or his beneficiaries, as applicable, 60 days after the
Executive's termination date. Any other compensation provided for in Section
7(b) will be paid as set forth above.
(f) Mitigation. The Executive will not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment will be offset or reduced by the amount of any
compensation or benefits provided to the Executive in any subsequent employment
other than as provided under Section 7(b)(ii)(D).
(g) Other. The Executive's entitlement to any other compensation or
benefits upon termination of Executive's employment will be determined in
accordance with the Company's employee benefit plans and other applicable
programs and practices then in effect.
8. Executive Covenants. As a condition of his continued employment with
the Company and in exchange for the consideration set forth in this Agreement,
the Executive acknowledges and reaffirms his obligations under his
Confidentiality, Non-Competition/Non-Solicitation and Work Product Agreement
dated March 6, 2006 and as may be amended from time to time (the
"Non-Competition Agreement"), which shall survive the termination of his
employment.
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9. Accelerated Vesting Upon a Change in Control.
(a) Definitions.
(i) Change in Control. For purposes of this Agreement,
"Change in Control" means the occurrence of any of the following events:
(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 the then-outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or 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: (1) any
acquisition of more than 50% of the Outstanding Company Common Stock 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); (2) any
acquisition of more than 50% of the Outstanding Company Common Stock by the
Company; (3) any acquisition of more than 50% of the Outstanding Company Common
Stock by any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company; or (4) any acquisition
by any Person who, prior to such acquisition, already owned more than 50% of the
Outstanding Company Common Stock or Outstanding Company Voting Securities; or
(B) such time as the majority of the members of the
Board (or, if applicable, the board of directors of a successor corporation to
the Company) is replaced during any 12-month period (commencing no earlier than
the date of this Agreement) by directors whose appointment or election is not
endorsed by a majority of the members of the Board prior to the date of the
appointment or election; 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, 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) in substantially the same proportions as their ownership,
immediately prior
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to such Business Combination, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, respectively; or
(D) approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company, other than in a bankruptcy
proceeding, provided that the liquidation or dissolution otherwise meets the
requirements of one of the events described in Sections 7(a)(iii)(A), (B) or (C)
above.
In all respects, the definition of "Change in Control" shall be
interpreted to comply with Code Section 409A, and the provisions of Treasury
Notice 2005-1, and any successor statute, regulation and guidance thereto.
(ii) Change in Control Date. For purposes of this Agreement,
"Change in Control Date" means (A) the first date during the Term on which a
Change in Control occurs; or (B) the date immediately prior to the date on which
the Executive is terminated before a Change in Control if a Change in Control
occurs and it is reasonably demonstrated by the Executive that such termination
of employment (1) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control; or (2) otherwise arose in
connection with or in anticipation of a Change in Control.
(b) If a Change in Control occurs during the Term, then, effective
upon the Change in Control:
(i) 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; and
(ii) 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.
10. Successors and Assigns.
(a) 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
entitle the Executive to terminate his employment and be paid pursuant to
Section 7(b)(ii), except that for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the Date of
Termination.
(b) Successor to the Executive. Neither this Agreement nor any right
or interest hereunder will be assignable or transferable by the Executive, his
beneficiaries or legal representatives, except by will or by the laws of descent
and distribution. This Agreement will inure to the benefit of and be enforceable
by the Executive's legal personal representative.
11. Dispute Resolution. The Company and the Executive agree that any and
all
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disputes, claims and controversies between the Company or any of its Affiliates
and the Executive (collectively, "Claims") arising out of or relating to this
Agreement, or the breach thereof, and any claim which is a "Covered Claim"
within the meaning of the Company's Dispute Resolution Policy, a copy of which
is attached hereto (the "Dispute Resolution Policy"), shall be governed by and
resolved in accordance with the procedures set forth in the Dispute Resolution
Policy. The parties understand and agree that EACH PARTY TO THIS AGREEMENT
WAIVES ANY RIGHT TO A JURY TRIAL FOR ANY SUCH CLAIMS. Notwithstanding the
foregoing, the Company shall retain its right to initiate action and litigate in
court before a judge or jury any claim for damages, enforcement action,
injunction or any other cause of action related to, or for the purpose of
enforcing, the terms of the Executive's Non-Competition Agreement, incorporated
by reference by Section 8 herein.
12. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) will be in writing and will be deemed to have been duly given when
personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company will be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications will be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address will be effective only upon receipt.
13. Non-exclusivity of Rights. Nothing in this Agreement will prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company or any of its
subsidiaries and for which the Executive may qualify, nor will anything herein
limit or reduce such rights as the Executive may have under any other agreements
with the Company or any of its subsidiaries. Amounts which are vested benefits
or which the Executive is otherwise entitled to receive under any plan or
program of the Company or any of its subsidiaries will be payable in accordance
with such plan or program, except as explicitly modified by this Agreement.
14. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and the Company. The Company and the
Executive agree that they will negotiate in good faith and jointly execute an
amendment to modify this Agreement to the extent necessary to comply with the
requirements of Code Section 409A, or any successor statute, regulation and
guidance thereto; provided that no such amendment shall increase the total
financial obligation of the Company under this Agreement. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party will be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreement or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.
15. Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the laws of the State of Florida without giving
effect to the conflict
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of law principles thereof. The Executive hereby irrevocably submits and
acknowledges and recognizes the jurisdiction of the courts of the State of
Florida, or if appropriate, a federal court located in Florida (which courts,
for purposes of this Agreement, are the only courts of competent jurisdiction),
over any suit, action or other proceeding arising out of, under or in connection
with this Agreement or the subject matter hereof.
16. Severability. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision will not
affect the validity or enforceability of the other provisions hereof.
17. Entire Agreement. This Agreement, the Non-Competition Agreement, the
2000 Stock Incentive Plan, the PolyMedica Corporation Executive Savings Plan,
the PolyMedica Corporation Employee Stock Purchase Plan and the Dispute
Resolution Policy constitute the entire agreement between the parties hereto and
supersede all prior agreements, understandings and arrangements, oral or
written, between the parties hereto with respect to the subject matter hereof,
including, but not limited to, the Prior Agreements.
18. Tax Consequences. The Company does not guarantee the tax treatment or
tax consequences associated with any payment or benefit arising under this
Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and the Executive has executed this Agreement as
of the day and year first above written.
POLYMEDICA CORPORATION
/s/ Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
Title: Chief Operating Officer
EXECUTIVE
/s/ Xxxxxxxx Xxxxx
-----------------------
Xxxxxxxx Xxxxx
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