EXHIBIT 10.65
AGREEMENT made this 11th day of July, 2003, between PolyMedica
Corporation, a Massachusetts corporation (the "Company"), and Xxxxxx X. Xxxxxxxx
(the "Participant").
For valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1. Purchase of Shares.
The Company shall issue and sell to the Participant, and the Participant
shall purchase from the Company, subject to the terms and conditions set forth
in this Agreement and in the Company's 2000 Stock Incentive Plan (the "Plan"),
5,000 shares (the "Shares") of common stock, $0.01 par value, of the Company
("Common Stock"), at a purchase price of $0.01 per share. The aggregate purchase
price for the Shares shall be paid by the Participant by check payable to the
order of the Company or such other method as may be acceptable to the Company.
Upon receipt by the Company of payment for the Shares, the Company shall issue
to the Participant one or more certificates in the name of the Participant for
that number of Shares purchased by the Participant. The Participant agrees that
certain of the Shares shall be subject to the purchase options set forth in
Section 2 of this Agreement and the restrictions on transfer set forth in
Section 4 of this Agreement.
2. Purchase Option. Upon the termination of the employment agreement dated
as of the date hereof by and between the Company and the Participant (the
"Employment Agreement"), for any reason or no reason, with or without cause,
prior to December 31, 2003, the Company shall have the right and option (the
"Purchase Option") to purchase from the Participant, for a sum of $0.01 per
share (the "Option Price"), some or all of the Unvested Shares (as defined
below).
"Unvested Shares" means the total number of Shares less the total number
of Vested Shares (as defined herein) at the time the Purchase Option becomes
exercisable by the Company. Of the Shares, 1,671 shall be "Vested Shares" on the
date hereof and the remaining 3,329 Shares shall vest on the last calendar day
of each month that the Employment Agreement is in effect, beginning July 31,
2003, in an amount determined by multiplying 51 Shares by the number of days
actually worked by the Participant during the period from the last vesting date
to and including the current vesting date. The calculation of Vested Shares to
be made on July 31, 2003 shall be made for the period beginning July 11, 2003.
3. Exercise of Purchase Option and Closing.
(a) The Company may exercise the Purchase Option by delivering or
mailing to the Participant (or his estate), within 60 days after the termination
of the Employment Agreement, a written notice of exercise of the Purchase
Option. Such notice shall specify the number of Shares to be purchased. If and
to the extent the Purchase Option is not so exercised by the giving of such a
notice within such 60-day period, the Purchase Option shall automatically expire
and terminate effective upon the expiration of such 60-day period.
(b) Within 10 days after delivery to the Participant of the
Company's notice of the exercise of the Purchase Option pursuant to subsection
(a) above, the Participant (or his estate) shall, pursuant to the provisions of
the Joint Escrow Instructions referred to in Section 5 below, tender to the
Company at its principal offices the certificate or certificates representing
the Shares which the Company has elected to purchase in accordance with the
terms of this Agreement, duly endorsed in blank or with duly endorsed stock
powers attached thereto, all in form suitable for the transfer of such Shares to
the Company. Promptly following its receipt of such certificate or certificates,
the Company shall pay to the Participant the aggregate Option Price for such
Shares (provided that any delay in making such payment shall not invalidate the
Company's exercise of the Purchase Option with respect to such Shares).
(c) After the time at which any Shares are required to be delivered
to the Company for transfer to the Company pursuant to subsection (b) above, the
Company shall not pay any dividend to the Participant
on account of such Shares or permit the Participant to exercise any of the
privileges or rights of a stockholder with respect to such Shares, but shall, in
so far as permitted by law, treat the Company as the owner of such Shares.
(d) The Option Price may be payable, at the option of the Company,
in cancellation of all or a portion of any outstanding indebtedness of the
Participant to the Company or in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share upon
exercise of the Purchase Option, and any fraction of a Share resulting from a
computation made pursuant to Section 2 of this Agreement shall be rounded to the
nearest whole Share (with any one-half Share being rounded upward).
(f) The Company may assign its Purchase Option to one or more
persons or entities.
4. Restrictions on Transfer.
(a) The Participant shall not sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively "transfer") any Shares, or any interest therein, that are subject
to the Purchase Option, except that the Participant may transfer such Shares (i)
to or for the benefit of any spouse, children, parents, uncles, aunts, siblings,
grandchildren and any other relatives approved by the Board of Directors
(collectively, "Approved Relatives") or to a trust established solely for the
benefit of the Participant and/or Approved Relatives, provided that such Shares
shall remain subject to this Agreement (including without limitation the
restrictions on transfer set forth in this Section 4 and the Purchase Option)
and such permitted transferee shall, as a condition to such transfer, deliver to
the Company a written instrument confirming that such transferee shall be bound
by all of the terms and conditions of this Agreement or (ii) as part of the sale
of all or substantially all of the shares of capital stock of the Company
(including pursuant to a merger or consolidation), provided that, in accordance
with the Plan, the securities or other property received by the Participant in
connection with such transaction shall remain subject to this Agreement.
(b) The Participant shall have the right, at any time and from time
to time, to pledge or hypothecate the Shares to a commercial bank or financial
institution (the "Bank") as security for a loan from such Bank. During the term
of the pledge or hypothecation agreement, the Company may not exercise the
Purchase Option with respect to the Shares that are subject to the pledge (the
"Pledged Shares"), and if the Participant defaults on such loan, then the Bank
may take possession of the Pledged Shares provided that such Pledged Shares
shall remain subject to this Agreement, other than the Purchase Option which
shall terminate with respect to the Pledged Shares and such permitted transferee
shall, as a condition to such transfer, deliver to the Company a written
instrument confirming that such transferee shall be bound by all of the other
terms and conditions of this Agreement.
5. Escrow.
The Participant shall, upon the execution of this Agreement, execute Joint
Escrow Instructions in the form attached to this Agreement as Exhibit A. The
Joint Escrow Instructions shall be delivered to the Secretary of the Company, as
escrow agent thereunder. The Participant shall deliver to such escrow agent a
stock assignment duly endorsed in blank, in the form attached to this Agreement
as Exhibit B, and hereby instructs the Company to deliver to such escrow agent,
on behalf of the Participant, the certificate(s) evidencing the Shares issued
hereunder. Such materials shall be held by such escrow agent pursuant to the
terms of such Joint Escrow Instructions.
6. Restrictive Legends.
All certificates representing Shares shall have affixed thereto legends in
substantially the following form, in addition to any other legends that may be
required under federal or state securities laws:
"The shares of stock represented by this certificate are subject to
restrictions on transfer and an option to purchase set forth in a
certain Restricted Stock Agreement between the corporation and the
registered owner of these shares (or his predecessor in interest),
and such Agreement is available for inspection without charge at the
office of the Secretary of the corporation."
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7. Provisions of the Plan.
(a) This Agreement is subject to the provisions of the Plan, a copy
of which is furnished to the Participant with this Agreement.
(b) As provided in the Plan, upon the occurrence of an Acquisition
Event (as defined in the Plan), the repurchase and other rights of the Company
hereunder shall inure to the benefit of the Company's successor and shall apply
to the cash, securities or other property which the Shares were converted into
or exchanged for pursuant to such Acquisition Event in the same manner and to
the same extent as they applied to the Shares under this Agreement. If, in
connection with an Acquisition Event, a portion of the cash, securities and/or
other property received upon the conversion or exchange of the Shares is to be
placed into escrow to secure indemnification or similar obligations, the mix
between the vested and unvested portion of such cash, securities and/or other
property that is placed into escrow shall be the same as the mix between the
vested and unvested portion of such cash, securities and/or other property that
is not subject to escrow.
8. Withholding Taxes; Section 83(b) Election.
(a) The Participant acknowledges and agrees that the Company has the
right to deduct from payments of any kind otherwise due to the Participant any
federal, state or local taxes of any kind required by law to be withheld with
respect to the purchase of the Shares by the Participant or the lapse of the
Purchase Option.
(b) The Participant has reviewed with the Participant's own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. The Participant
is relying solely on such advisors and not on any statements or representations
of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participant's own
tax liability that may arise as a result of this investment or the transactions
contemplated by this Agreement. The Participant understands that it may be
beneficial in many circumstances to elect to be taxed at the time the Shares are
purchased rather than when and as the Company's Purchase Option expires by
filing an election under Section 83(b) of the Code with the I.R.S. within 30
days from the date of purchase.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO
MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
9. Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges and agrees
that the vesting of the Shares pursuant to Section 2 hereof is earned only by
continuing service pursuant to the Employment Agreement (not through the act of
being hired or purchasing shares hereunder). The Participant further
acknowledges and agrees that the transactions contemplated hereunder and the
vesting schedule set forth herein do not constitute an express or implied
promise of continued engagement as an employee or consultant for the vesting
period, for any period, or at all.
(b) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company contained
in this Agreement may be waived, either generally or in any particular instance,
by the Board of Directors of the Company.
(d) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
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(e) Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 9(e).
(f) Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Entire Agreement. This Agreement and the Plan constitute the
entire agreement between the parties, and supersede all prior agreements and
understandings, relating to the subject matter of this Agreement.
(h) Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Participant.
(i) Governing Law. This Agreement shall be construed, interpreted
and enforced in accordance with the internal laws of the Commonwealth of
Massachusetts without regard to any applicable conflicts of laws.
(j) Participant's Acknowledgments. The Participant acknowledges that
he or she: (i) has read this Agreement; (ii) has been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
the Participant's own choice or has voluntarily declined to seek such counsel;
(iii) understands the terms and consequences of this Agreement; (iv) is fully
aware of the legal and binding effect of this Agreement; and (v) understands
that the law firm of Xxxx and Xxxx LLP, is acting as counsel to the Company in
connection with the transactions contemplated by the Agreement, and is not
acting as counsel for the Participant.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
POLYMEDICA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Senior Vice President and Chief
Financial Officer
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx
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Exhibit A - Joint Escrow Instructions
As Escrow Agent for PolyMedica Corporation, a Massachusetts corporation,
and its successors in interest under the Restricted Stock Agreement (the
"Agreement") of even date herewith, to which a copy of these Joint Escrow
Instructions is attached (the "Company"), and the undersigned person ("Holder"),
you are hereby authorized and directed to hold the documents delivered to you
pursuant to the terms of the Agreement in accordance with the following
instructions:
1. Appointment. Holder irrevocably authorizes the Company to deposit with
you any certificates evidencing Shares (as defined in the Agreement) to be held
by you hereunder and any additions and substitutions to said Shares. For
purposes of these Joint Escrow Instructions, "Shares" shall be deemed to include
any additional or substitute property. Holder does hereby irrevocably constitute
and appoint you as his attorney-in-fact and agent for the term of this escrow to
execute with respect to such Shares all documents necessary or appropriate to
make such Shares negotiable and to complete any transaction herein contemplated.
Subject to the provisions of this paragraph 1 and the terms of the Agreement,
Holder shall exercise all rights and privileges of a stockholder of the Company
while the Shares are held by you.
2. Closing of Purchase.
(a) Upon any purchase by the Company of the Shares pursuant to the
Agreement, the Company shall give to Holder and you a written notice specifying
the purchase price for the Shares, as determined pursuant to the Agreement, and
the time for a closing hereunder (the "Closing") at the principal office of the
Company. Holder and the Company hereby irrevocably authorize and direct you to
close the transaction contemplated by such notice in accordance with the terms
of said notice.
(b) At the Closing, you are directed (i) to date the stock
assignment form or forms necessary for the transfer of the Shares, (ii) to fill
in on such form or forms the number of Shares being transferred, and (iii) to
deliver same, together with the certificate or certificates evidencing the
Shares to be transferred, to the Company against the simultaneous delivery to
you of the purchase price for the Shares being purchased pursuant to the
Agreement.
3. Withdrawal. The Holder shall have the right to withdraw from this
escrow any Shares as to which the Purchase Option (as defined in the Agreement)
has terminated or expired.
4. Duties of Escrow Agent.
(a) Your duties hereunder may be altered, amended, modified or
revoked only by a writing signed by all of the parties hereto.
(b) You shall be obligated only for the performance of such duties
as are specifically set forth herein and may rely and shall be protected in
relying or refraining from acting on any instrument reasonably believed by you
to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact of Holder while acting in good
faith and in the exercise of your own good judgment, and any act done or omitted
by you pursuant to the advice of your own attorneys shall be conclusive evidence
of such good faith.
(c) You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or Company,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree of any court,
you shall not be liable to any of the parties hereto or to any other person,
firm or Company by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
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(d) You shall not be liable in any respect on account of the
identity, authority or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
(e) You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with your
obligations hereunder and may rely upon the advice of such counsel.
(f) Your rights and responsibilities as Escrow Agent hereunder shall
terminate if (i) you cease to be Secretary of the Company or (ii) you resign by
written notice to each party. In the event of a termination under clause (i),
your successor as Secretary shall become Escrow Agent hereunder; in the event of
a termination under clause (ii), the Company shall appoint a successor Escrow
Agent hereunder.
(g) If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
(h) It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
(i) These Joint Escrow Instructions set forth your sole duties with
respect to any and all matters pertinent hereto and no implied duties or
obligations shall be read into these Joint Escrow Instructions against you.
(j) The Company shall indemnify you and hold you harmless against
any and all damages, losses, liabilities, costs, and expenses, including
attorneys' fees and disbursements, for anything done or omitted to be done by
you as Escrow Agent in connection with this Agreement or the performance of your
duties hereunder, except such as shall result from your gross negligence or
willful misconduct.
5. Notice. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties thereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten days' advance written notice to each of the other parties
hereto.
COMPANY: Notices to the Company shall be
sent to the address set forth in
the salutation hereto, Attn:
President
HOLDER: Notices to Holder shall be sent
to the address set forth below
Holder's signature below.
ESCROW AGENT: Notices to the Escrow Agent shall
be sent to the address set forth
in the salutation hereto.
6. Miscellaneous.
(a) By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions, and you do not
become a party to the Agreement.
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(b) This instrument shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
Very truly yours,
POLYMEDICA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
HOLDER:
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
(Signature)
Xxxxxx X. Xxxxxxxx
---------------------------------------
Print Name
Date Signed: July 11, 2003
ESCROW AGENT:
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx,
Chief Financial Officer of
PolyMedica Corporation
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