EXHIBIT 10.28
AGREEMENT CONCERNING DISABILITY AND DEATH
AGREEMENT entered into this 10th day of September, 2003 by and between
MERIDIAN BIOSCIENCE, INC. and XXXXXXX X. XXXXX.
WHEREAS, Motto has been employed by Meridian and has rendered faithful
and competent services to Meridian; and
WHEREAS, Meridian and Motto desire to enter into an Agreement to
replace their Split Dollar Agreements dated February 8, 1996 and May 1, 1995;
and
WHEREAS, Meridian desires to have a death and disability program for
Motto to provide protection to Motto and his family should his death or
disability occur while employed by Meridian; and
WHEREAS, the Compensation Committee of Meridian's Board of Directors
approved on April 23, 2003 a special death and disability benefits program for
Motto and approved the specific form of this Agreement by written action on
September 3, 2003;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereafter set forth, the parties agree as follows:
1. Meridian shall make a monthly payment to Motto for up to 60
months if Motto meets the definition of "Disability" in Section 5 below while
employed by Meridian. The gross amount of each monthly payment shall be equal to
60% of the average total annual salary and bonus paid by Meridian to Motto
during Meridian's three fiscal years ending immediately before Motto's
Disability commenced. Any such payments to Motto shall be reduced by the gross
amount of any payments made to Motto through any group or other disability
insurance policy or program maintained by Meridian. Provided, however, that no
such monthly payment shall be made after either the month of Motto's death or
the month that Motto ceases to meet the definition of "Disability" in Section 5
below. Meridian may fulfill its obligation under this Section by purchasing
insurance coverage.
2. If Motto dies while employed by Meridian or while receiving
the Disability payments described in Section 1 above, Meridian shall pay $1
million to the designated beneficiaries of Motto or, if none, to Motto's estate,
reduced by the gross amount of any payments made as Disability compensation
pursuant to Section 1 above and also reduced by any other insurance proceeds on
Motto's life received by Motto's estate or beneficiaries from any policies of
life insurance maintained by Meridian.
3. Meridian shall maintain health insurance coverage for Motto
and his spouse and the survivor of them for a period of five years after Motto's
employment with Meridian ends because of Motto's death or Disability. The health
insurance coverage shall be at levels comparable for executives in Motto's
position at the time that Motto's employment with Meridian has ended as
determined by Meridian. This shall satisfy Meridian's obligation to provide
continuation coverage to Motto and his spouse under Section 4980B of the
Internal Revenue Code of 1986.
4. Motto or, after his death, his estate or heirs, shall have the
right to cause Meridian, on three separate occasions, to register for public
sale under the Securities Act of 1933 those shares of Meridian Common Stock
beneficially owned by Motto during his lifetime or at his death which may not,
at the time of request, be publicly sold without registration. The right to
request such registration shall commence upon the execution of this Agreement
and end five years after Motto's death. This registration
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right is conditioned upon Meridian being able to utilize the SEC's short-form
registration statement, Form S-3, or its equivalent. Meridian shall bear all
costs of the registration except brokerage commissions which shall be the
responsibility of Motto.
5. For purposes of this Agreement, "Disability" shall be defined
as in the group disability policy under which Meridian covers Motto or his
successor. In the absence of such a policy, "Disability" shall mean an injury or
disease which was not intentionally self-inflicted and which Meridian at its
sole discretion, determines, on the basis of such evidence and information as it
deems satisfactory, causes Motto to be completely and indefinitely incapable of
performing his regular duties for Meridian.
6. Motto shall be responsible for all taxes, including, without
limitation, federal, state or local taxes, related to any action taken by
Meridian pursuant to this Agreement.
7. The parties' Split Dollar Agreements dated February 8, 1996
and May 1, 1995 shall be deemed cancelled by Meridian and Motto effective upon
the execution of this Agreement, and Motto and Meridian promptly shall notify
The Fifth Third Bank, trustee under Motto's Irrevocable Life Insurance Trust
Agreement dated March 9, 1992.
8. This Agreement may not be amended or modified except by
written instrument signed by Meridian and Motto.
9. This Agreement shall be binding upon the parties hereto and
their successors, assigns, executors, administrators and beneficiaries.
10. This Agreement shall be subject to and construed according to
the laws of the State of Ohio.
IN WITNESS WHEREOF, Meridian and Motto have execute this Agreement on
the day and year first above written.
MERIDIAN BIOSCIENCE, INC.
BY: /s/ Xxxxxxx Xxxxx
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Xxxxxxx X. Xxxxx
Vice President, Chief Financial Officer
and Secretary
/s/ Xxxxxxx X.Xxxxx
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Xxxxxxx X. Xxxxx
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