Exhibit 10.15
EMPLOYMENT AGREEMENT
March 23, 2004
AGREEMENT made by and between Xxxx Xxxxx (the "Executive") and Insulet
Corporation, a Delaware corporation with a principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxx 000X, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Insulet" or the
"Company").
WHEREAS, the Executive's position under this Agreement requires that he be
trusted with extensive confidential information and trade secrets of the Company
and that he develop a thorough and comprehensive knowledge of all details of the
Company's business, including, but not limited to, information relating to
research, development, inventions, financial and strategic planning, research,
marketing, distribution and licensing of the Company's products and services;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Position and Responsibilities. During the term of this Agreement, the
Executive agrees to serve as Vice President, Sales and Marketing or in such
other positions and with such other title as may be assigned from time to time
by the Chief Executive Officer. The Executive shall exercise such powers and
comply with and perform, faithfully and to the best of his ability, such
directions and duties in relation to the business and affairs of the Company as
may from time to time be vested in or requested of him. The Executive shall
devote substantially all of his business time, attention and energies to the
Company's business and shall not engage in any other business activity without
the Chief Executive Officer's approval. The Executive shall perform his services
under this Agreement at such locations as may be required by the Company, but he
initially will be located at the Company's facilities in Beverly, Massachusetts.
2. Compensation: Salary, Bonuses and Other Benefits. During the term of
this Agreement, the Company shall pay the Executive, as consideration for the
Executive's satisfactory performance of his duties, the following compensation:
(A) Salary. In consideration of the services to be rendered by the
Executive to the Company, the Company will pay to the Executive a
bi-weekly salary of $7692.30 (annualized, $200,000) (the Executive's
"Base Salary"). Such Base Salary shall be payable in conformity with
the Company's customary practices for executive compensation, as
such practices shall be established or modified from time to time.
Executive's performance and salary will be reviewed by the Chief
Executive Officer annually on or about the anniversary of this
Agreement.
(B) Fringe Benefits. The Executive will be eligible to participate
on the same general basis and subject to the same rules and
regulations as other Company executives in the Company's standard
benefit plans as such benefits or plans may be modified or amended
from time to time. The Company may alter, add to, modify or delete
its benefit plans at any time it determines in its sole judgment to
be appropriate.
(C) Life Insurance. The Company shall provide Executive with life
insurance in an amount equal to twice Executive's annual salary, the
proceeds of which are to be payable to the Executive's designated
beneficiary.
(D) Vacation. During the term hereof, the Executive shall be
eligible to accrue three weeks of paid vacation per calendar year,
to be taken at such times and intervals as shall be agreed to by the
Company and the Executive in their reasonable discretion.
(E) Equity. Executive will be greatened the opportunity to purchase
360,000 shares of Company common stock, $0.001 par value, at a
purchase price equal to the fair market value as of the date of the
grant. The shares will be subject to and governed by the terms and
conditions of a Stock Restriction Agreement between Executive and
the Company and the Company's Stock Option and Incentive Plan, which
will include, among other things, a vesting schedule.
(F) Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable business expenses incurred or paid by
the Executive in the performance of his responsibilities hereunder
in accordance with the Company's prevailing policy and practice
relating to reimbursements as established, modified or amended from
time to time. The Executive must provide substantiation and
documentation of these expenses to the Company in order to receive
reimbursement.
(G) Tax Withholding. All payments in this Section 2 shall be subject
to all applicable federal, state and local withholding, payroll and
other taxes.
3. Term. Subject to the earlier termination as hereafter provided in
Section 4 he term of this Agreement shall commence on June 14, 2004, and shall
continue until three years therefrom. At the end of the term, the Agreement will
expire and, if the parties mutually desire for the Executive to remain employed,
such employment will continue solely on an "at-will" basis, which means that
either the Company or the Executive can terminate the Executive's employment at
any time, for any or no reason, and with or without cause or prior notice, and
without obligation of salary continuation, severance or other benefits upon such
termination.
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4. Termination. The Executive's employment under this Agreement may be
terminated as follows:
(A) By Expiration of the Agreement: If this Agreement expires as set
forth in Section 3 hereof, the Executive's employment shall
terminate and the Executive shall be entitled to no payments, salary
continuation, severance or other benefits after the expiration date
of the Agreement, except for Base Salary and vacation to the extent
accrued through the date of such expiration; provided, however, that
at the expiration of this Agreement, the parties may agree to
continue the Executive's employment solely on an "at-will" basis, as
described in Section 3 above.
(B) At the Executive's Option. The Executive may terminate his
employment under this Agreement, at any time by giving at least
forty-five (45) days' advance written notice to the Company. In the
event of a termination at the Executive's option, the Company may
accelerate Executive's departure date and will have no obligation to
pay Executive after his actual departure date. In the event of
termination at the Executive's option, the Executive shall be
entitled to no payments, salary continuation, severance or other
benefits, except for earned but unpaid Base Salary and vacation to
the extent accrued through the Executive's departure date.
(C) At the Election of the Company for Cause. The Company may,
immediately and unilaterally, terminate the Executive's employment
under this Agreement for "Cause" at any time during the term of this
Agreement without any prior written notice to the Executive.
Termination by the Company shall constitute a termination for Cause
under this Section 4(C) if such termination is for one or more of
the following causes:
(i) the failure or refusal of the Executive to render services
to the Company in accordance with his obligations under this
Agreement or a determination by the Company that the Executive
has failed to perform the duties of his employment;
(ii) disloyalty, gross negligence, dishonesty, breach of
fiduciary duty or breach of the terms of this Agreement or the
other agreements executed in connection herewith;
(iii) the commission by the Executive of an act of fraud,
embezzlement or disregard of the rules or policies of the
Company or the commission by the Executive of any other action
which injures the Company;
(iv) acts which, in the judgment of the Board of
Directors, would tend to generate adverse publicity toward
the Company;
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(v) the commission, or plea of nolo contendere, by the
Executive of a felony;
(vi) the commission of an act which constitutes unfair
competition with the Company or which induces any customer of
the Company to breach a contract with the Company; or
(vii) a breach by the Executive of the terms of the
Non-Competition and Non-Solicitation Agreement or the Employee
Nondisclosure and Developments Agreement.
In the event of a termination for Cause pursuant to the
provisions of clauses (i) through (vii) above, inclusive, the
Executive shall be entitled to no payments, salary
continuation, severance or other benefits, except for earned
but unpaid Base Salary and vacation to the extent accrued
through the Executive's termination date.
(D) At the Election of the Company for Reasons Other than for Cause.
The Company may, immediately and unilaterally, terminate the
Executive's employment under this Agreement at any time during the
term of this Agreement without Cause by giving ten (10) days'
advance written notice to the Executive of the Company's election to
terminate. During such ten-day period, the Executive will be
available on a full-time basis for the benefit of the Company to
assist the Company in making the transition to a successor. The
Company, at its option, may pay the Executive his prorated Base
Salary rate for ten (10) days in lieu of such notice. In the event
the Company exercises its right to terminate the Executive under
this Section 4(D), Executive may be eligible for severance payments
as set forth in 4(F).
(E) Benefits if Agreement Terminated Due to Death or Disability.
Executive's employment will terminate if Executive dies or suffers
physical incapacity or mental incompetence. For the purposes of this
Agreement, the Executive shall be deemed to have suffered physical
incapacity or mental incompetence if the Executive is unable to
perform the essential functions of his job with reasonable
accommodation for a period of 120 consecutive or cumulative days in
any one year period. Any accommodation will not be deemed reasonable
if it imposes an undue hardship on the Company. If this Agreement
terminates due to the death or disability of Executive, Executive
(or in the case of death, Executive's designated beneficiary, or if
no beneficiary has been designated by you, your estate) shall be
entitled to no payments, salary continuation, severance or other
benefits, except for earned but unpaid Base Salary, vacation and
benefits to the extent accrued or vested through the Executive's
termination date.
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(F) Severance. In the event the Company terminates Executive's
employment under Section 4(D) (For Reasons Other Than For Cause) and
the Executive signs a comprehensive release in the form, and of a
scope, acceptable to the Company, the Company agrees to pay the
Executive severance payments at the Executive's then current Base
Salary rate for six (6) months. Such severance payments shall be
payable on a monthly basis in conformity with the Company's
customary practices for executive compensation as such practices may
be modified from time to time and shall be subject to all applicable
federal, state and local withholding, payroll and other taxes.
Except as expressly set forth in this Section 4(F), Executive
acknowledges that the Company shall not have any further obligations
to the Executive in the event of Executive's termination under
Section 4(D), except such further obligations as may be imposed by
law and except for earned but unpaid Base Salary and vacation to the
extent accrued through the Executive's termination date.
If Executive breaches his post-employment obligations under the
Non-Competition and Non-Solicitation Agreement or the Employee
Nondisclosure and Developments Agreement, to be executed herewith,
or any other restrictive covenants or agreements executed by
Executive, the Company may immediately cease payment of all
severance and/or benefits described in this Agreement. This
cessation of severance and/or benefits shall be in addition to, and
not as an alternative to, any other remedies in law or in equity
available to the Company, including the right to seek specific
performance or an injunction.
5. Execution of Other Agreements; Survival of Certain Provisions. As a
condition of his employment by the Company pursuant to the terms of this
Agreement, Executive acknowledges that he will execute herewith the
Non-Competition and Non-Solicitation Agreement and the Employee Nondisclosure
and Developments Agreement. Executive's post employment obligations under these
agreements and any other restrictive covenants or agreements executed by
Executive shall survive any termination of employment or termination or
expiration of this Agreement. The obligation of the Company to make payments to
or on behalf of the Executive under Section 4(F) hereof is expressly conditioned
upon Executive's continued full performance of the Non-Competition and
Non-Solicitation Agreement and the Employee Nondisclosure and Developments
Agreement and any other obligations under any restrictive covenants or
agreements.
6. Consent and Waiver by Third Parties. The Executive hereby represents
and warrants that he has obtained all waivers and/or consents from third parties
which are necessary to enable him to enjoy employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Executive represents that he is not bound by any
agreement or any other existing or previous business relationship which
conflicts with, or may conflict with, the
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performance of his obligations hereunder or prevent the full performance of his
duties and obligations hereunder.
7. Governing Law. This Agreement, the employment relationship contemplated
herein and any claim arising from such relationship, whether or not arising
under this Agreement, shall be governed by and construed in accordance with the
internal laws of Massachusetts, without giving effect to the principles of
choice of law or conflicts of law of Massachusetts and this Agreement shall be
deemed to be performable in Massachusetts. Any claims or legal actions by one
party against the other arising out of the relationship between the parties
contemplated herein (whether or not arising under this Agreement) shall be
commenced or maintained in any state or federal court located in Massachusetts,
and Executive hereby submits to the jurisdiction and venue of any such court.
8. Severability. In case any one or more of the provisions contained in
this Agreement or the other agreements executed in connection with the
transactions contemplated hereby for any reason shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or such
other agreements, but this Agreement or such other agreements, as the case may
be, shall be construed and reformed to the maximum extent permitted by law.
9. Waivers and Modifications. This Agreement may be modified, and the
rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 9. No waiver by either party of any
breach by the other or any provision hereof shall be deemed to be a waiver of
any later or other breach thereof or as a waiver of any other provision of this
Agreement. This Agreement and its terms may not be waived, changed, discharged
or terminated orally or by any course of dealing between the parties, but only
by an instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought. No modification or waiver by the Company
shall be effective without the consent of the Board of Directors then in office
at the time of such modification or waiver.
10. Assignment. The Executive acknowledges that the services to be
rendered by him hereunder are unique and personal in nature. Accordingly, the
Executive may not assign any of his rights or delegate any of his duties or
obligations under this Agreement. The rights and obligations of the Company
under this Agreement may be assigned by the Company and shall inure to the
benefit of, and shall be binding upon, the successors and assigns of the
Company.
11. Entire Agreement. This Agreement constitutes the entire understanding
of the parties relating to the subject matter hereof and supersedes and cancels
all agreements relating to the subject matter hereof, whether written or oral,
made prior to the date hereof between the Executive and the Company or any of
its affiliates or predecessors except that Non-Competition and Non-Solicitation
Agreement and the Employee Nondisclosure and Developments Agreement, executed
herewith, shall remain in full force and effect.
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12. Notices. All notices hereunder shall be in writing and shall be
delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
If to the Company, to:
Chief Executive Officer
Insulet Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx Xxxxxx, XX 00000
If to the Executive, at the Executive's address set forth on the signature
page hereto.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
14. Section Headings. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written as an instrument under seal.
INSULET CORPORATION XXXX XXXXX
By: /s/ Xxxxx XxXxxxx /s/ Xxxx Xxxxx
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Xxxxx XxXxxxx Signature of Xxxx Xxxxx
President and Chief Executive Officer 0 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Date: Date: March 28, 2004
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