EXHIBIT 10.13
EMPLOYMENT AGREEMENT
AGREEMENT made by and between Xxxxx XxXxxxx (the "Executive") and
Insulet Corporation, a Delaware corporation with a principal place of business
at 000 Xxxxxxxx Xxxxxx, Xxxxx 000X, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Insulet" or
the "Company").
WHEREAS, the Executive's position under this Agreement requires that he
be trusted with extensive confidential information and trade secrets of the
Company and that he 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 Chief Operating Officer, Chief Financial Officer
and Treasurer of the Company or in such other positions and with such other
title as may be assigned from time to time. The Executive shall also serve as
Interim Chief Executive Officer until such time as the Company hires a Chief
Executive Officer. The Executive shall initially report to the Board of
Directors until a Chief Executive Officer is hired, at which time he shall
report to the Chief Executive Officer. The Executive shall exercise such powers
and comply with and perform, faithfully and to the best of his 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 him. The Executive shall
devote substantially all of his business time, attention and energies to the
Company's business and shall not engage in any other business activity without
the Board of Directors' or Chief Executive Officer's approval (as applicable).
The Executive shall perform his services under this Agreement at such locations
as may be required by the Company, but he initially will be located at the
Company's facilities in Beverly, 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 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 $8,653.85 (annualized, $225,000.00) (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 Board of Directors 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 (3) 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) 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 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.
(F) 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 July 9, 2003 and shall
continue until two (2) years therefrom (the "Initial Employment Term"). Subject
to earlier termination as hereafter provided in Section 4, the Initial
Employment Term shall be automatically extended for additional terms of
successive one (1) year periods (each an "Additional Employment Term") unless
the Company or the Executive gives written notice to the other party at least
forty-five (45) days prior to the expiration of the then Initial Employment Term
or Additional Employment Term that the term of this Agreement shall not be so
extended.
4. Termination. The Executive's employment under this Agreement may be
terminated as follows:
(A) By Failure to Extend the Agreement: If this Agreement is not
extended pursuant to 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 termination date of this
Agreement, except for Base Salary and vacation to the extent accrued through the
date of such termination; provided, however, that upon such failure to extend
the term of this Agreement, the parties may agree to continue the Executive's
employment thereafter solely on an "at-will" basis.
(B) At the Executive's Option. The Executive may terminate his
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 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
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unpaid Base Salary and vacation to the extent accrued through the Executive's
actual 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 obligations under
this Agreement or a determination by the Company that the
Executive has failed to perform the duties of his 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 between Executive and
the Company, each dated as of July 9, 2001.
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.
(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 prorated Base Salary rate for ten (10)
days in lieu of such
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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 Section 4(F). For avoidance of doubt, notice given by the Company under
Section 3 that the term of the Agreement will not be extended shall not be
deemed to be termination without Cause under this Section 4(D).
(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 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 post-employment obligations under the
Non-Competition and Non-Solicitation Agreement or the Employee Nondisclosure and
Developments Agreement between Executive and the Company, each dated as of July
9, 2001, 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.
5. Execution of Other Agreements, Survival of Certain Provisions. The
Executive acknowledges that he has executed and is bound by the Non-Competition
and Non-Solicitation Agreement and the Employee Nondisclosure and Developments
Agreement referenced above. Executive's post-employment obligations under such
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
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Executive's continued full performance of such Non-Competition and
Non-Solicitation Agreement and such 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 he has obtained all waivers and/or consents from third parties
which are necessary to enable him 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 he 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 obligations
hereunder or prevent the full performance of his 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 of 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. Until the time the Executive is reporting to
the Chief Executive Officer, 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.
10. Assignment. The Executive acknowledges that the services to be
rendered by him hereunder are unique and personal in nature. Accordingly, the
Executive may not assign any of his rights or delegate any of his 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.
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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 between Executive and the Company, each dated as of July 9, 2001,
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
000 Xxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
with a copy to: Xxxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
with a copy to: Xxxxx X. Xxxxx
Prism Venture Partners Suite 2500
000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, 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 XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxx /s/ Xxxxx XxXxxxx
------------------------- --------------------------
Name: Xxxxx Xxxxx, Xxxxx XxXxxxx
Title: Director 00 Xxxxx Xxxx Xxxx
Xxxx, Xxxxx Xxxxxx
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