EMPLOYMENT AGREEMENT
Exhibit 10.27
THIS
EMPLOYMENT AGREEMENT (the “Agreement”), made this 20th day of September, 2005
(the “Effective Date”) is entered into by Accellent Corp. (pka) Medical Device
Manufacturing, Inc. (dba) Accellent, Inc., a Colorado corporation with its
principle place of business at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000
(the “Company”), and Xxxxxxx Xxxxxxx (the “Employee”).
WHEREAS,
the Company desires to employ the Employee on the terms and conditions contained
herein; and
WHEREAS,
the Employee desires to be employed with the Company on the terms and conditions
contained herein;
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, the parties agree as
follows:
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Term
of Employment. The Company hereby agrees to employ the Employee, and the
Employee hereby accepts employment with the Company, upon the terms set
forth in this Agreement, for the period commencing on the Effective Date
and ending on the third anniversary of the Effective Date (such period, as
it may be extended in a writing signed by the parties hereto, the
“Employment Period”), unless sooner terminated in accordance with the
provisions of Section 4.
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2.
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Title;
Capacity. The Employee shall serve as Vice President of Operations,
Accellent Endoscopy and in such other position(s) as the Executive Vice
President (EVP), General Manager (GM), Endoscopy Division may determine
from time to time. The Employee shall have such authority as is delegated
to him by his superiors. The Employee hereby accepts such employment and
agrees to undertake the duties and responsibilities inherent in such
position and such other duties and responsibilities as the EVP, GM
Endoscopy Division or its designee shall from time to time reasonably
assign to him. The Employee agrees to devote his entire business time,
attention and energies to the business and interests of the Company during
the Employment Period. The Employee agrees to abide by the rules,
regulations, instructions, personnel practices and policies of the Company
and any changes therein that may be adopted from time to time by the
Company.
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3.
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Compensation
and Benefits.
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3.1.
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Base
Salary. The Company shall pay the Employee, pursuant to the Company’s
normal payroll procedures for its employees, an annual base salary of
$215,000. Such salary shall be subject to adjustment as determined by
Company.
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3.2.
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Annual
Incentive Bonus. The Employee will be eligible for an annual target bonus
of 50% of his base salary (the “Annual Target Bonus”), based upon the
Employee’s reaching individual and Company-related performance milestones
to be set forth by the Company in a separate document. In addition, the
Employee may be eligible for bonuses in excess of the Annual Target Bonus
for his substantially exceeding the milestones set forth, as well as for
other extraordinary performance. The setting of the performance
milestones, as well as the determination of the amount of these bonuses,
if any are earned, shall be determined by the President & Chief
Executive Officer and approved by the compensation committee and the Board
thereof in the exercise of its
discretion.
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3.3.
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Fringe
Benefits. The Employee shall be eligible to participate in all bonus and
benefit programs that the Company establishes and makes available to its
employees, if any, to the extent that the Employee’s position, tenure,
salary, age, health and other qualifications make him eligible to
participate. You will receive a car allowance of $700.00 per month paid in
a manner consistent with our standard payroll
practices.
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In
recognition of your acceptance of this offer, Accellent will pay you a $25,000
sign on bonus subject to all applicable taxes and payable upon the first regular
payroll following employment start date. Upon completion of your 6 month
anniversary date, Accellent will pay you an additional $25,000 bonus subject to
all applicable taxes. The full sign on bonus amount of $50,000 is recoverable by
Accellent in the event that you voluntarily terminate employment within one year
of your start date.
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3.4.
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Vacation
Accrual. The Employee will be eligible to accrue up to 1.5 days of
vacation per month worked during the first year of service. After the
first year of service vacation time shall be accrued according to the
company’s exempt vacation policy. Such vacation time shall be governed by
the Company’s procedures regarding paid time
off.
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3.5.
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Reimbursement
of Expenses. The Company shall reimburse the Employee for all reasonable
and necessary travel, entertainment and other expenses incurred or paid by
the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement. Upon
presentation by the Employee of documentation, expense statements,
vouchers and/or such other supporting information as the Company may
request, the employee will be reimbursed by the company for all reasonable
expense subject to approval by the EVP/GM, Endoscopy
Division.
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3.6.
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Stock
Options. Subject to approval of the Board, the Employee shall be granted
the option to purchase 50,000 shares of the Company’s Common Stock at a
purchase price equal to the fair market value as determined by the Board
of Directors on the date of grant. The stock options shall be governed by
the terms and conditions detailed in the Company’s Amended and Restated
Stock Option and Incentive Plan and the separate stock option agreement in
the form approved by the Board. It is intended that the stock options will
vest 20% per year as of the date the Employee starts
employment.
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4.
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Employment
Termination. The employment of the Employee by the Company pursuant to
this Agreement shall terminate upon the occurrence of any of the
following:
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4.1.
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Expiration.
Expiration of the Employment Period in accordance with Section
1;
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4.2.
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For
Cause by the Company. At the election of the Company, for Cause,
immediately upon written notice by the Company to the Employee. For the
purposes of this Section 4.2, “Cause” for termination shall be deemed to
exist upon a good faith finding by the Company of (a) an intentional act
by the Employee which materially injures the Company; (b) an intentional
refusal or failure by the Employee to follow lawful and reasonable
directions of the President & Chief Executive Officer or his delegate;
(c) a willful and habitual neglect of duties by the Employee; (d) a breach
by the Employee of the Company’s policies and procedures or any breach of
the Employee’s obligations hereunder; or (e) a conviction of the Employee
of a felony involving moral turpitude which is reasonably likely to
inflict or has inflicted material injury on the
Company.
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4.3.
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Death
or Disability. Upon the death or disability of the Employee. As used in
this Agreement, the term “disability” shall mean the inability of the
Employee with reasonable accommodation as may be required by State or
Federal law, due to a physical or mental disability, for a period of
ninety (90) days, whether or not consecutive, during any 360-day period to
perform the services contemplated under this Agreement. A determination of
disability shall be made by a physician satisfactory to both the Employee
and the Company, provided that if the Employee and the Company do not
agree on a physician, the Employee and the Company shall each select a
physician and these two together shall select a third physician, whose
determination as to disability shall be binding on all
parties;
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4.4.
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Resignation
by the Employee. At the election of the Employee, upon not less than
thirty (30) days prior written notice of termination;
and
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4.5.
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Without
Cause by the Company. At the election of the Company, without Cause,
immediately upon written notice by the Company to the
Employee.
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5.
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Effect
of Termination.
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5.1.
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Termination
for Cause or at Election of the Employee. In the event the Employee’s
employment is terminated by Expiration pursuant to Section 4.1, for Cause
pursuant to Section 4.2, or at the election of the Employee pursuant to
Section 4.4, the Company shall pay to the Employee the compensation and
benefits otherwise payable to him under Section 3 through the last day of
his actual employment by the
Company.
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5.2.
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Termination
for Death or Disability. If the Employee’s employment is terminated by
death or because of disability pursuant to Section 4.3, the Company shall
pay to the estate of the Employee or to the Employee, as the case may be,
the compensation that would otherwise be payable to the Employee up to the
end of the month in which the termination of his employment because of
death or disability occurs.
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5.3.
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Termination
Without Cause. If the Employee’s employment is terminated without Cause
pursuant to Section 4.5, the Company
shall:
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(a)
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In
accordance with the Company’s regular payroll practices, pay the Employee
his base salary as severance pay for a period of twelve (12) months (the
“Severance Period”); and
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(b)
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During
the Severance Period, the Company shall continue to pay the share of the
premium for such coverage that is paid by the Company for active and
similarly-situated employees who receive the same type of coverage during
the Severance Pay Period. The remaining balance of any premium costs, and
all premium costs after the Severance Pay Period, shall be paid by the
employee on a monthly basis for as long as, and to the extent that, the
employee remains eligible for COBRA
continuation.
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All
payments and benefits provided pursuant to this Section 5.3 shall be conditioned
upon and subject to the Employee’s first executing a severance agreement and
general release of claims in favor of the Company, its officers, directors,
employees and affiliates, drafted by and satisfactory to the
Company.
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5.4.
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Survival.
The provisions of Section 6 shall survive the termination of this
Agreement.
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6.
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Proprietary
Information; Invention Assignment and Non-Competition. The Employee agrees
to be bound by all of the provisions of the Company’s standard
Non-Disclosure, Non-Solicitation, Non Competition and Invention Assignment
Agreement, which is incorporated herein by reference and made a part
hereof (the “Non-Disclosure Agreement”). A copy of the Non-Disclosure
Agreement is attached hereto as Exhibit
A.
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7.
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Other
Agreements. The Employee hereby represents that he is not bound by the
terms of any agreement with any previous employer or other party to
refrain from using or disclosing any trade secret or confidential or
proprietary information in the course of his employment with the Company
or to refrain from competing, directly or indirectly, with the business of
such previous employer or any other party. The Employee further represents
that his performance of all the terms of this Agreement and as an employee
of the Company does not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by him in
confidence or in trust prior to his employment with the
Company.
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8.
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Notices.
All notices required or permitted under this Agreement shall be in writing
and shall be deemed effective upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail, postage
prepaid, addressed to the other party at the address shown above, or at
such other address or addresses as either party shall designate to the
other in accordance with this Section
8.
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9.
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Pronouns.
Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and
the singular forms of nouns and pronouns shall include the plural, and
vice versa.
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10.
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Entire
Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings, whether
written or oral, relating to the subject matter of this
Agreement.
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11.
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Amendment.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the
Employee.
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12.
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Governing
Law and Jurisdiction. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
The parties agree that any disputes arising under this Agreement or
otherwise related to the Employee’s employment with the Company shall be
brought exclusively in the state and federal courts located in the
Commonwealth of Pennsylvania and the parties hereby waive any defense of
lack of personal jurisdiction in any such
action.
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13.
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Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of both parties and their respective successors and assigns, including any
corporation with which or into which the Company may be merged or which
may succeed to its assets or business, provided, however, that the
obligations of the Employee are personal and shall not be assigned by
him.
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14.
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Acknowledgment.
The Employee states and represents that he has had an opportunity to fully
discuss and review the terms of this Agreement with an attorney. The
Employee further states and represents that he has carefully read this
Agreement, understands the contents herein, freely and voluntarily assents
to all of the terms and conditions hereof, and signs his name of his own
free act.
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15.
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No
Waiver. No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Company on any one occasion shall be
effective only in that instance and shall not be construed as a bar or
waiver of any right on any other
occasion.
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16.
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Captions.
The captions of the sections of this Agreement are for convenience of
reference only and in no way define, limit or affect the scope or
substance of any section of this
Agreement.
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17.
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Severability.
In case any provision of this Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired
thereby.
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18.
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Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which shall constitute one and the
same Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year set forth above.
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ACCELLENT
CORP (pka) MEDICAL DEVICE
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MANUFACTURING,
INC. (dba) ACCELLENT, INC.
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By:
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/s/ Xxxx Xxxxxx | |
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Name:
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Xxxx
Xxxxxx
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Title:
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Interim
EVP/GM, Endoscopy Division
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EMPLOYEE
/s/ Xxxxxxxx Xxxxxxx
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