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EXHIBIT 10.28
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 Xxxxxx X. Xxx, an individual with an
address at 000 Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Executive"),
entered into an initial 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 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 Board or such
officer of the Company as may be designated by 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 $440,000 ("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 discretion of the Compensation Committee, an annual
discretionary bonus payment in an amount, if any, to be determined by the
Compensation Committee.
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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 six 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 nine (9) 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
twenty-four (24) 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 up to twenty four (24) months after
termination of Executive's employment hereunder or until Executive becomes
employed, whichever first occurs, (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 ("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
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obligation to reimburse Executive for his otherwise elected coverage, and (iii)
during the Severance Period the Executive shall be provided with up to 10 hours
of secretarial assistance per week and of his automobile allowance. Executive
shall be obligated to give the Company prompt notice of his subsequent
employment and upon the commencement of such employment, 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. Xxxxxxxxx
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By: Xxxxxx X. Xxxxxxxxx
Title: President
AGREED TO AND ACCEPTED:
/s/ Xxxxxx X. Xxx
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Xxxxxx X. Xxx
