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EXHIBIT 10.69
EXECUTIVE EMPLOYMENT AGREEMENT
PARTIES
This Employment Agreement (this "Agreement") dated as of the 1st day of
September, 2000, is entered into by and between PolyMedica Corporation, a
Massachusetts corporation having its principal place of business at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or any of its subsidiaries or affiliates
(collectively, the "Company") and Xxxxxx X. Xxxxxxxxxx, an individual with an
address at 0000 X.X. Xxxxx Xxxxxx Xxx, Xxxxxx, Xxxxxxx 00000-0000 (the
"Executive").
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 the date hereof (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").
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3. COMPENSATION AND BENEFITS; DISABILITY.
3.1. SALARY. During Executive's employment, the Company shall pay
Executive an annualized base salary of $250,000 ("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
required 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 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. Executives 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 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 Employee 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.
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3.6. SEVERANCE PAY. In the event that prior to any "Change of Control"
as defined in the Executive Retention Agreement dated September 1, 2000, the
Company terminates this Agreement without cause (i.e., other than pursuant to
Section 3.5 or Section 4 hereof) at any time (including during the Extended
Employment Period), 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 one year,
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 (1) year 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
("COBRA") or other law. 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.
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 executed in connection
herewith 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.
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6. EXPENSES. Pursuant to the Company's customary policies in force at the
time of payment, Executive shall be promptly reimbursed.
7. AGREEMENT NOT TO COMPETE. Executive acknowledges and confirms his
Agreement Not to Compete and his Confidentiality and Proprietary Information
Agreement, each dated February 1, 1999, (or under any similar later agreements)
with the Company (the "Additional Agreements"), which shall survive the
termination of this Agreement.
8. ARBITRATION. The Employee agrees that any dispute or controversy arising
out of or relating in any way to the Employee'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 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
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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 ad 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. Employee 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 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.
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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 Chief Executive Officer
AGREED TO AND ACCEPTED:
/s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
