Exhibit 10.16
EMPLOYMENT AGREEMENT
February 8, 2006
AGREEMENT made by and between Xxxxxxx XxXxxxxx (the "Executive") and
Insulet Corporation, a Delaware corporation with a principal place of business
at 0 Xxx Xxxx Xxxxx, Xxxxxxx, XX. 00000 ("Insulet" or the "Company").
WHEREAS, the Executive's position under this Agreement requires that she
be trusted with extensive confidential information and trade secrets of the
Company and that she 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, Quality and Regulatory Affairs 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/her 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 her. The Executive shall
devote substantially all off his/her 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/her services under this Agreement at such locations as may be required by
the Company, but she initially will be located at the Company's facilities in
Bedford, 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/her 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 $6346.15 (annualized, $165,000) (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 200,000 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/her 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, the term of this Agreement shall commence on March 6, 2006, and shall
continue until two (2) 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.
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.
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(B) At the Executive's Option. The Executive may terminate
his/her 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/her 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/her obligations
under this Agreement or a determination by the Company that the
Executive has failed to perform the duties of his/her
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;
(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.
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(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/her 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/her 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.
(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/her 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.
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5. Execution of Other Agreements; Survival of Certain Provisions. As a
condition of his/her employment by the Company pursuant to the terms of this
Agreement, Executive acknowledges that she 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 she has obtained all waivers and/or consents from third
parties which are necessary to enable her 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 she is
not bound by any agreement or any other existing or previous business
relationship which conflicts with, or may conflict with, the performance of
his/her obligations hereunder or prevent the full performance of his/her 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 off
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.
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10. Assignment. The Executive acknowledges that the services to be
rendered by her hereunder are unique and personal in nature. Accordingly, the
Executive may not assign any of his/her rights or delegate any of his/her 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.
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
0 Xxx Xxxx Xxxxx
Xxxxxxx, XX 00000
with a copy to: Xxxxxxx Xxxxxx
Xxxxxxx Procter
Xxxxxxxx Xxxxx
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 XXXXXXX XXXXXXXX
By: /s/ Xxxxx XxXxxxx /s/ X. Xxxxxxxx
------------------------------------- ---------------------------------
Xxxxx XxXxxxx Signature of Xxxxxxx Xxxxxxxx
President and Chief Executive Officer 0 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Date: 2/13/06
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