**Exhibit 10.28**

 

MOORE MEDICAL CORP. 

 

2003 – 2004 CHANGE OF CONTROL AND POSITION PAYMENT PLAN 

 

 

The plan is designed to offer an incentive to participants to continue in the Company’s employ by providing for severance payments in the event of certain terminations of employment following a Change of Control.

 

 

The participants under this plan are the key employees of the Company entitled to participate pursuant to their employment agreements with the Company or otherwise selected as participants by the CompensationCommittee of the Board of Directors or the Board of Directors of the Company. 

 

 

(a) Severance will be payable to a participant only if there is a “Change of Control” on or before December 31, 2004, followedwithin twelve months by a termination of the participant’s employment with the Company (i) by the Company without Cause or (ii) by the participant due to the participant’s Change of Position. 

 

(b) A “Change of Control” is: 

 

(i) any merger or consolidation of the Company into or withanother corporation (other than a subsidiary of the Company) or entity, whether the acquirer is privately-held or publicly-traded, unless, immediately thereafter, the holders of common stock of the Company immediately prior thereto hold more than50% of the voting capital stock of such other corporation or the voting equity interests of such entity, or 

 

(ii) the acquisition by another person or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934), whetherthe acquirer is privately-held or publicly traded, of beneficial ownership (as defined in Rule 13d-3 under said Act) of 50% or more of the common stock of the Company, or 

 

(iii) the sale by the Company of substantially all of its assets, whether the acquirer is privately-held orpublicly traded, unless, immediately after such sale, the holders of common stock of the Company immediately prior thereto hold more than 50% of the voting capital stock of the acquiring corporation or, if the acquiring person or entity is not acorporation, more than 50% of the voting equity interests of such acquiring person or entity; or 

 

(iv) the election or removal of directors constituting a majority of the directors of the Company 

 

(x) as a result of a solicitation subject to Rule 14a-11(or successor Rule) under the Securities Exchange Act of 1934 relating to the election removal of directors, or 

(y) other than a result of the action of directors a majority of whom consist ofContinuing Directors; 

 

(z) for purposeshereof, a “Continuing Director” means a director 

 

(i) for whose election the Company solicited proxies pursuant to a proxy statement under Regulation 14A of said Act, or 

 

(ii) who was elected by action of the directors a majority of whom were elected as described in clause (i) hereof, or 

 

(iii) who was elected by action of directors a majority ofwhom were elected as described in clause (i) and/or clause (ii) hereof. 

 

(c) A participant’s “Change of Position” is a substantial change in his or her duties. A participant will be considered to have had a substantial change in his or her duties only if: 

 

(v) the duties of the participant are materiallydiminished; or 

 

(w) the participant’sbase salary or bonus opportunity is reduced; or 

 

(x) the principal place of employment by the Company of the participant is changed to a location more than 75 miles travel from his or her residence; or 

 

(y) the Company breaches any material term of an employment agreement between the Company and theparticipant, if any; and 

 

(z) within 90 daysafter the occurrence of any of the events referred to in clause (x) or (y) of Section 3(c) hereof, he or she terminates his or her employment by the Company. 

 

(d) “Cause” means (i) a participant’s conviction of either a felony or of any crime in connection with his employment bythe Company; (ii) the willful and continued failure of a participant to perform substantially his or her duties to the Company (other than any such failure resulting from incapacity due to physical or mental illness) after a written demand forsubstantial performance is delivered to the participant by the Company, which specifically identifies the manner in which the Company believes that the participant has not substantially performed his or her duties and the participant has not curedto the reasonable satisfaction of the Company any such failure that is capable of being cured in all material respects within ten (10) days of receiving such written demand; or (iii) the willful engaging by the participant in gross misconduct thatis materially injurious to the Company 

 
4.Severance Amount; Etc.
 

Each participant’s severance amount will be an amount equal to the percentage of the sum of participant’s annualized W-2 gross salary plus pro rata bonus, butnot including Company-401(k) contribution, car allowance, or other Company provided benefits. Said percentage will be in accordance with the participant’s employment agreement with the Company or otherwise as determined by the Executive orCompensation Committee when it designates an employee as a participant. For purposes hereof, the term “pro rata bonus” means the amount of any bonus that the participant would have been entitled to as of the end of the year of histermination pursuant to Section 3(c) hereof, assuming annualization of the Company’s operating performance (as reported its quarterly reports on Form 10-Q 

 

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filed with the Securities and Exchange Commission for the quarter end next following the date of a participant’stermination of employment), multiplied by a fraction the numerator of which is the number of calendar days elapsed during the year of termination to the date of termination and the denominator of which is 365. Payment of severance amounts will bemade within 45 days after the quarter-end during which the two conditions described in paragraph 3(a), above, occur. In no event shall the amount payable under this paragraph exceed an amount which would (when aggregated with any other amounts whichwould be subject to the Section 280G or Section 162(m) provisions hereinafter referred to) result in any part of a payment otherwise to be made under this paragraph constituting a “parachute payment” under Section 280G of the InternalRevenue Code of 1986, as amended, or a payment which, pursuant to Section 162(m) of said Code, would not be deductible by the Company as compensation for federal income tax purposes. 

 
5.Administration; Determinations
 

The plan will be administered by the Board’s Compensation Committee. All interpretations and implementations of the plan by the Committee not expressly inconsistentwith the plan will be final and binding on the Company and all participants. Neither this plan nor any participant’s rights or Company obligations thereunder can be changed orally. 

 

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