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EXHIBIT 10.30
AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
PARTIES
On September 1, 2000, PolyMedica Corporation, a Massachusetts corporation
having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (the "Company") and Xxxx X. Xxxxxxx, an individual with an address at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Executive"), entered into an
Executive Employment Agreement. The Company and the Executive now both desire to
replace that original agreement with this Amended Executive Employment Agreement
(this "Agreement") which will become effective and supersede the prior agreement
on April 1, 2001.
TERMS OF AGREEMENT
In consideration of this Agreement and the employment and/or continued
employment of the Executive by the Company, the parties agree as follows:
1. Employment. The Company hereby employs Executive, on a full-time basis,
to act as an executive of the Company and to perform such acts and duties and
furnish such services to the Company as the Company's Chief Executive Officer or
Board of Directors (the "Board") shall from time to time reasonably direct.
Executive hereby accepts said employment. Executive shall use his best and most
diligent efforts to promote the interests of the Company; shall discharge his
duties in a highly competent manner; and shall devote his full business time and
his best business judgment, skill and knowledge to the performance of his duties
and responsibilities hereunder. Executive shall report directly to the Chief
Executive Officer of the Company or such officer of the Company as may be
designated by the Chief Executive Officer or the Board. Nothing contained herein
shall preclude Executive from devoting incidental and insubstantial amounts of
time to activities other than the business of the Company and which are not
inconsistent with the best interests of the Company.
2. Terms of Employment. The Company agrees to employ the Executive for a
twelve (12) month period commencing on April 1, 2001 (the "Employment Period").
Notwithstanding the foregoing, both Executive and the Company shall have the
right to terminate the Executive's employment under this Agreement upon thirty
(30) days' written notice to the other party, subject to the Company's
obligation to pay severance benefits under certain circumstances as provided in
Section 3.6. If Executive shall remain in the employ of the Company beyond the
Employment Period, in the absence of any other express agreement between the
parties, this Agreement shall be deemed to continue on a month-to-month basis
(the "Extended Employment Period").
3. Compensation and Benefits; Disability.
3.1. Salary. During Executive's employment, the Company shall pay
Executive an annualized base salary of $231,000 ("Base Salary") payable in equal
installments pursuant to the Company's customary payroll policies in force at
the time of payment (but in no event less frequently than monthly), less all
required and authorized payroll deductions and state and federal withholdings.
Executive's Base Salary may be adjusted from time to time in the sole discretion
of the Board or the Compensation Committee of the Board (the "Compensation
Committee") and shall be reviewed annually by the Compensation Committee.
3.2. Bonus Payment. During the Employment Period, Executive may
receive, in the sole
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discretion of the Compensation Committee, an annual discretionary bonus payment
in an amount, if any, to be determined by the Compensation Committee.
3.3. Executive Benefits. During the Employment Period, Executive
shall be entitled to participate in all benefit programs that the Company
establishes and makes available to its other executives and employees, if any,
in accordance with the relevant plan documents and requirements, including but
not limited to the following benefits:
(a) Health Insurance. Health and dental insurance; and
(b) Life Insurance. Life insurance on the life of Executive with an
Executive-directed beneficiary in the amount of 150% of Executive's Base Salary.
(c) Stock Based Compensation. Executive will be eligible to
participate in the Company'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 the Company's Stock Incentive Plan or similar
plans from time to time in effect. All such grants or awards shall be governed
by the governing Plan and shall be evidenced by the Company's then standard form
of stock option, restricted stock or other applicable agreement.
3.4. Vacation. Executive may take four weeks of paid vacation during
each year at such times as shall be consistent with the Company's vacation
policies and (in the Company's judgment) with the Company's vacation schedule
for executives and other employees.
3.5. Disability. If during the Employment Period Executive shall
become ill, disabled or otherwise incapacitated so as to be unable to perform
the essential functions of his position with or without reasonable
accommodation, as may be required by state or federal law, (a) for a period in
excess of ninety (90) consecutive days or (b) for more than one hundred-twenty
(120) days in any twelve (12) month period, then the Company shall have the
right to terminate this Agreement, in accordance with applicable laws, on thirty
(30) days' notice to Executive. A determination of disability shall be made by a
physician satisfactory to both the Executive and the Company, provided that if
the Executive and the Company do not agree on a physician, the Executive and the
Company shall each select a physician and these two together shall select a
third physician, whose determination shall be binding on all parties.
3.6. Severance Pay. If at any time during the term of this Agreement
(including any Extended Employment Period) there is a "Change of Control" as
defined in the Executive Retention Agreement dated September 1, 2000, and within
six (6) months prior to that Change of Control the Company terminates this
Agreement without cause (i.e., other than pursuant to Section 3.5 or Section 4
hereof) and subject to the Executive's execution and non-revocation of a
severance agreement and release drafted by and satisfactory to counsel for the
Company, the Company shall continue to pay Executive at his then current Base
Salary for the remainder of the Employment Period or for eighteen (18) months,
whichever is longer (the "Severance Period"). Neither party shall be entitled to
any compensation or claim for good will or other loss suffered by reason of
termination of this Agreement.
3.7 Benefits During Severance Period. Except as otherwise required
by law, the Executive shall not be entitled to any employee benefits provided
under Section 3.3 after termination of Executive's employment whether or not
severance pay is being provided, except that (i) the Company shall continue in
full force and effect, at its expense, the life insurance provided for in
Section 3.3(b) for a period of eighteen (18) months after termination of
Executive's employment hereunder or until Executive becomes employed, whichever
first occurs, and (ii) during the Severance Period, the Company shall offer
continued health and dental insurance as required under the Consolidated Omnibus
Budget Reconciliation Act of 1985
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("COBRA") or other law and shall reimburse the Executive for the full cost of
that coverage. If Executive elects not to maintain health insurance pursuant to
COBRA or other law, the Company is under no obligation to reimburse Executive
for his otherwise elected coverage. Executive shall be obligated to give the
Company prompt notice of his subsequent employment and at that time, the
Company's obligations pursuant to this Section 3.7, if any, shall cease.
4. Discharge for Cause. The Company may discharge Executive and terminate
his employment under this Agreement for cause without further liability to the
Company. As used in this Section 4, "cause" shall mean any or all of the
following:
(a) a good faith finding by the Company of failure of the Executive
to perform his assigned duties for the Company, including but not limited to
dishonesty, gross negligence, misconduct, theft or embezzlement from the
Company, the intentional provision of services to competitors of the Company, or
improper disclosure of proprietary information.
(b) indictment, conviction (or the entry of a pleading of guilty or
nolo contendere by Executive) of a fraud or felony or any criminal offense
involving dishonesty, breach of trust or moral turpitude during Executive's
employment;
(c) Executive's breach of any of the agreements originally executed
in connection with his original Employment Agreement dated September 1, 2000, as
enumerated in Section 10.1.
In the event the Company exercises its right to terminate Executive's
employment under this Section 4, Executive shall not be entitled to receive any
severance pay or other termination benefits.
5. Termination Without Cause. The Company may terminate this Agreement
without cause without further liability to the Company except as set forth in
Section 3.6 and 3.7.
6. Expenses. Pursuant to the Company's customary policies in force at the
time of payment, Executive shall be promptly reimbursed for business related
expenses.
7. Agreement Not to Compete. Executive acknowledges and confirms his
Agreement Not to Compete and his Confidentiality and Proprietary Information
Agreement, each dated May 16, 1990, (or under any similar later agreements) with
the Company (the "Additional Agreements"), which shall survive the termination
of this Agreement.
8. Arbitration. The Executive agrees that any dispute or controversy
arising out of or relating in any way to the Executive's employment with and/or
termination from the Company (including, but not limited to, all claims, demands
or actions under any federal, state or local statute or regulation regarding
employment discrimination, and/or all claims, demands or actions concerning the
interpretation, construction, performance or breach of this Employment
Agreement) shall be settled by arbitration held in Boston, Massachusetts in
accordance with the Rules of the American Arbitration Association, before an
arbitrator who shall have experience in the area of the matter in dispute. Each
party shall bear its own costs and attorneys' fees in connection with any
arbitration pursuant to this paragraph. Provided, however, that this paragraph
shall not apply to any dispute or controversy arising out of or relating in any
way to the interpretation, construction, performance or breach of the
Non-Solicitation and Non-Competition Agreement contained at Paragraph 4 herein
or the Confidential Information and Non-Disclosure Agreement attached hereto as
Exhibit A, and no such dispute or controversy shall be deemed to be arbitrable
in the absence of the Corporation's written agreement.
9. Notices. Any notice or communication given by any party hereto to the
other party or parties
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shall be in writing and personally delivered or mailed by certified mail, return
receipt requested, postage prepaid, to the addresses provided above. All notices
shall be deemed given when actually received. Any person entitled to receive
notice (or a copy thereof) may designate in writing, by notice to the others,
another address to which notices to such person shall thereafter be sent.
10. Miscellaneous.
10.1. Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of its subject matter and supersedes all
prior agreements and understandings between the parties with respect to such
subject matter; provided that nothing in this Agreement shall affect Executive's
or the Company's obligations under the Additional Agreements.
10.2 Amendment; Waiver. This Agreement may not be amended,
supplemented, cancelled or discharged, except by written instrument executed by
the party affected thereby. No failure to exercise, and no delay in exercising,
any right, power or privilege hereunder shall operate as a waiver thereof. No
waiver of any breach of any provision of this Agreement shall be deemed to be a
waiver of any preceding or succeeding breach of the same or any other provision.
10.3. Binding Effect; Assignment. The rights and obligations of this
Agreement shall bind and inure to the benefit of any successor of the Company by
reorganization, merger or consolidation, or any assignee of all or substantially
all of the Company's business and properties. Executive's rights or obligations
under this Agreement may not be assigned by Executive; except that Executive's
right to compensation to the earlier of date of death or termination of actual
employment shall pass to Executive's executor or administrator.
10.4. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
10.5. Applicable Law. This Agreement shall be interpreted and
construed by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions. Executive hereby irrevocably submits and
acknowledges and recognizes the jurisdiction of the courts of the Commonwealth
of Massachusetts, or if appropriate, a federal court located in Massachusetts
(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 letter agreement or the subject matter hereof.
10.6 Other Agreements. Executive hereby represents that he is not
bound by the terms of any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or proprietary
information in the course of his employment with the Company, or to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. Executive further represents that his performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence proprietary information, knowledge or
data acquired by him in confidence or trust prior to his employment with the
Company.
10.7. Further Assurances. Each of the parties agrees to execute,
acknowledge, deliver and perform, or cause to be executed, acknowledged,
delivered or performed, at any time, or from time to time, as the case may be,
all such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be necessary or proper to carry out the
provisions or intent of this Agreement.
10.8. Severability. If any one or more of the terms, provisions,
covenants or restrictions of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force
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and effect and shall in no way be affected, impaired or invalidated. If,
moreover, any one or more of the provisions contained in this Agreement shall
for any reason be determined by a court of competent jurisdiction to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be construed by limiting or reducing it so as to be enforceable to the
extent compatible with then applicable law.
EXECUTION
The parties executed this Agreement as a sealed instrument as of the date
first above written, whereupon it becomes binding in accordance with its terms.
POLYMEDICA CORPORATION
/s/ Xxxxxx X. Xxx
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By: Xxxxxx X. Xxx
Title: Chairman and CEO
AGREED TO AND ACCEPTED:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
