EXHIBIT 10.28
Employment Severance Agreement
The parties to this agreement are MedSource Technologies, Inc., a Delaware
Corporation ("MedSource" or the "Company"), and Xxxxx Xxxxxxx (the "Executive").
It is agreed as follows:
1. In the event that (a) the Company terminates the Executive's
employment without "Cause" or (b) the Executive terminates his
employment with the Company by written notice for "good reason" and
provided that upon termination in either case, the Executive executes
and delivers to MedSource the Release Agreement annexed as Exhibit A
hereto which Release Agreement becomes effective in accordance with
its terms, then the Company, in lieu of any and all other payments or
benefits payable to the Executive, shall pay the Executive his base
salary at the time of termination (payable in accordance with the
Company's customary practice) for a period of 12 months following the
date of termination (the "Severance Period"); provided, however, that
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if, after the date of termination (and before the end of the Severance
Period), the Executive is employed by or otherwise receives
remuneration from a person or entity other than the Company, (an
"Alternate Employer"), the Company will pay such salary for up to six
(6) months and if the remuneration being received from the Alternate
Employer is less than the annualized rate of the base salary, the
Company shall, until the end of the Severance Period, pay the
Executive the difference between the annualized rate of his base
salary upon termination and the amount that the Executive is entitled
to receive from such Alternate Employer. The Executive agrees to
provide complete information to the Company with respect to any
Alternate Employer and his financial arrangements therewith. The
Executive understands and agrees that for a period of 12 months
following the date of termination of the Executive's employment, the
provision of sections 3(b) and 3(c) shall apply. As used herein "good
reason" shall mean any of the following: (i) the Company reduces the
Executive's base salary, bonus computation or title; (ii) the Company
substantially reduces the Executive's responsibilities or there is a
change in employment conditions materially adverse to the Executive,
any of which is not remedied within 30 days after receipt by the
Company of notice from the Executive of such reduction in
responsibilities or change in employment conditions; (iii) without the
Executive's written consent, the Company requires the Executive to be
based anywhere other than his present location in Minneapolis,
Minnesota except for required travel on Company business in the
ordinary course; (iv) the Company takes any action which would deprive
the Executive of any material fringe benefit other than action which
is applied to all executives as a whole.
2. The Company may terminate this Agreement and the Executive's
employment hereunder at any time upon written notice for "Cause",
which shall mean (i) the commission of fraud or embezzlement on the
part of the Executive, (ii) a breach by the Executive of any of
Sections 3(a), 3(b) or 3(c) of this Agreement, (iii) the conviction of
the Executive of, or the pleading by the Executive of guilty or no
contest to, (x) any felony or (y) any crime
involving moral turpitude on his part and/or (iv) a material failure
by the Executive to discharge his duties, responsibilities and
obligations as an employee of the Company after the Executive shall
have been duly notified of such failure and shall have had a
reasonable time to cure the same. In the event of the termination by
the Company of the Executive's employment for Cause, the Executive
shall be entitled to receive his base salary accrued but not paid
through the date of termination and no other monies or benefits except
as provided by law.
3. Confidentiality, et al. In consideration for the foregoing, the
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Executive agrees that:
(a) He will not at any time, divulge, communicate, use to the
detriment of the Company or its subsidiaries or affiliates
(collectively the "Companies") or for the benefit of any other
person, firm or entity, or misappropriate in any way, any
confidential information or trade secrets relating to the
Companies or any of their businesses including, without
limitation, business strategies, operating plans, acquisition
strategies (including the identities of (and any other
information concerning) possible acquisition candidates), pro
forma financial information, market analyses, acquisition terms
and conditions, personnel information, trade processes,
manufacturing methods, know-how, customer lists and
relationships, supplier lists, or other non-public proprietary
and confidential information relating to the Companies.
(b) During his employment with the Company and the Severance Period,
the Executive shall not, directly or indirectly, for himself or
on behalf of any other person, firm or entity, employ, engage or
retain any person who at any time during the 12-month period
preceding his termination, was an employee of any of the
Companies or contact any supplier, customer or employee of any of
the Companies for the purpose of soliciting or diverting any such
supplier, customer or employee from the Companies or otherwise
interfering with the business relationship of the Companies with
any of the foregoing.
(c) During his employment with the Company and the Severance Period,
the Executive shall not, directly or indirectly, engage in, or
serve as a principal, partner, joint venturer, member, manager,
trustee, agent, stockholder, director, officer or employee of, or
consultant or advisor to, or in any other capacity, or in any
manner own, control, manage, operate, or otherwise participate,
invest, or have any interest in, or be connected with, any
person, firm or entity that engages in, directly or indirectly,
any activity that is competitive with the business of the
Companies as then conducted in the United States or Europe within
2,000 miles of any then facility of the Companies or of any
customer of the Companies; provided, however, that
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notwithstanding the foregoing, the Executive may own up to 2% of
the voting securities of any publicly-traded company.
(d) The Executive acknowledges that the agreements herein are
reasonable and necessary for the protection of the Companies and
are an essential inducement to
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the Company's continuing Executive in the employ of the Company.
Accordingly, the Executive shall be bound by the provision hereof
to the maximum extent permitted by law, it being the intent and
spirit of the parties that the foregoing shall be fully
enforceable. However, the parties further agree that, if any of
the provisions hereof shall for any reason be held to be
excessively broad as to duration, geographical scope, property or
subject matter, such provision shall be construed by limiting and
reducing it so as to be enforceable to the extent compatible with
the applicable law as it shall herein pertain.
4. Equitable Relief. The Executive acknowledges that if he violates
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the provisions of this Agreement, the Company could suffer
irreparable injury and, in addition to any other rights and
remedies available under this Agreement or otherwise, the Company
shall be entitled to an injunction to be issued or specific
enforcement to be required (without the necessity of any bond)
restricting the Executive from committing or continuing any such
violation.
5. Amendment and Modification. This Agreement may not be amended,
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modified or changed except in a writing signed by the party
against whom such amendment, modification or change is sought to
be enforced.
6. Waiver of Compliance; Consents. Except as otherwise provided in
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this Agreement, any failure of either of the parties to comply
with any obligation, covenant, agreement or condition herein may
be waived by the party entitled to the benefits thereof only be
written instrument signed by the party granting such waiver, but
such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as
a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by
or on behalf of a party, such consent shall be given in writing
in a manner consistent with the requirements for a waiver of
compliance as set forth in this section 6.
7. Notices. Any notice, demand, request or other communication which
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is required, called for or contemplated to be given or made
hereunder to or upon any party hereto shall be deemed to have
been duly given or made for all purposes if (a) in writing and
sent by (i) messenger or a recognized national overnight courier
service for next day delivery with receipt therefor or (ii)
certified or registered mail, postage paid, return receipt
requested, (b) sent by facsimile transmission with a written copy
thereof sent on the same day by postage paid first-class mail or
(c) by personal delivery to such party at the following address:
If to the Company, to:
MedSource Technologies Inc.
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
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Attention: VP-Human Resources
If to the Executive, to:
The address set forth beneath the Executive's signature
hereto.
8. Binding Effect. This Agreement shall be binding upon and inure to
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the benefit of the Executive and his heirs and legal
representatives and the Company and its successors and assigns.
Successors of the Company shall include, without limitation, any
person acquiring, directly or indirectly, all or substantially
all of the business or assets of the Company, whether by merger,
consolidation, purchase, lease or otherwise, and such successor
shall thereof be deemed the "Company" for the purposes hereof.
9. Governing Law. This Agreement shall be governed by the law of the
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state of Delaware applicable to agreements made and to be
performed entirely in Delaware.
10. Entire Agreemet. This Agreement constitutes the entire agreement
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and understanding of the parties hereto with respect to the
matters set forth herein and supersedes all prior agreements and
understandings between the parties with respect to those matters
except any such agreements which may be in writing and which
provide that they are not superseded by this Agreement.
MEDSOURCE TECHNOLOGIES, INC.
By:
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Chief Executive Officer
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Xxxxx Xxxxxxx
Date
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Exhibit A
Release Agreement
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Release Agreement made this [ day of ] between MedSource
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Technologies, Inc. and Xxxxx Xxxxxxx ("Executive").
1. General Releases.
(a) For and in consideration of the severance benefits which the
Executive will receive under the Employment Severance Agreement to which this
Release Agreement is attached, the Executive fully and forever releases and
discharges MedSource Technologies, Inc. ("Company") (which for purposes of this
Agreement includes its present and former officers, directors, shareholders,
employees, agents, investors, administrators, representatives, attorneys,
affiliates, divisions, subsidiaries, parent corporations, predecessor and
successor corporations and assigns) from any and all liability for any claim,
duty, obligation, debt, covenant, cause of action or damages (collectively
"Claims"), whether presently known or unknown, suspected or unsuspected, that
Executive ever had, may have had or now have arising from any omission, act or
fact that has occurred up to and including the date of this Agreement. Such
released Claims include, but are not limited to: (i) any Claims arising out of
or attributable to Executive's employment or the termination of employment with
the Company; (ii) any Claims for wages, severance pay, bonuses, accrued
vacation, personal days, holidays, sick days, stock, stock options, units,
membership interests, attorneys fees, costs or expenses; (iii) all Claims
arising under any agreement, understanding, promise or contract (express or
implied, oral or written) between Executive and the Company; (iv) all Claims of
wrongful termination, unjust dismissal, defamation, violation of the implied
covenant of good faith and fair dealing libel or slander; (v) all Claims arising
under tort law; (vi) any Claims arising under any federal, state or local law
dealing with discrimination based on age, race, sex, national origin, handicap,
religion, disability or sexual preference; (vii) any Claims arising under any
federal, state or local constitution, statute, regulation or ordinance to the
extent such claims may be validly waived including, without limitation, the Age
Discrimination in Employment Act (the "ADEA"), Title VII of the Civil Rights Act
of 1964, the Americans with Disabilities Act, the Civil Rights Act of 1991, the
Family and Medical Leave Act, the Equal Pay Act, the Employee Retirement Income
Security Act; and (viii) any Claims for any other loss or damage.
(b) The Company, for itself and affiliated companies and its and their
successors and assigns, hereby releases and forever discharges Executive from
any and all claims based upon any act, omission or occurrence occurring up to
and including the effective date of this Agreement, including, but not limited
to, any matter arising out of Executive's employment with the Company.
2. Acknowledgments. Executive acknowledges that the severance benefits
provided under the Employment Severance Agreement exceed any payment or benefit
to which Executive might otherwise be entitled pursuant to any policy, plan or
procedure of the Company,
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or pursuant to any prior agreement or contract with the Company. Executive
understands that neither party hereto is waiving any rights or Claims that arise
after the date Executive signs this Agreement.
3. Covenant Not To Xxx. Executive represents that he has not filed or
permitted to be filed any Claims, administrative proceedings or lawsuits against
the Company, and agrees that he will not do so at any time in the future with
respect to the subject matter of all Claims released pursuant to this Agreement,
except as may be necessary to enforce the Agreement or Employment Severance
Agreement or obtain the benefits described in or granted by such agreements.
4. Non-Disclosure of Agreement. Executive and the Company agree that
neither party will, unless required by law, talk about, write about or otherwise
publicize the terms of this Agreement and the Employment Severance Agreement,
the benefits being paid under such agreements or the fact of their payment,
except that this information may be disclosed to each party's respective
attorneys, accountants or other professional advisors to whom disclosure must be
made in order for them to render professional services. Such attorneys,
accountants or other professional advisors will, however, be instructed to
maintain the confidentiality of this information. Notwithstanding the foregoing,
Executive and the Company agree that this Agreement may be used as evidence in
any proceeding, administrative, judicial, arbitral or otherwise, relating to
Executive's employment with the Company or the termination thereof.
5. Non-Disparagement. Executive agrees that he will not, at any time,
orally or in writing, disparage, denigrate or defame the Company, or any
affiliate of the Company, their respective products, services or business
conduct, or otherwise impugn the reputation of the Company or any affiliate of
the Company, or that of any of their respective directors, officers, affiliates,
agents, employees or representatives. The Company agrees that it will not,
orally or in writing, disparage, denigrate or defame Executive or otherwise
impugn his reputation.
6. Nature of Agreement. Executive understands and agrees that this
Agreement is a severance agreement and does not constitute an admission of
liability or wrongdoing on the part of the Company.
7. Time to Consider; Revocation; Effective Date. Executive hereby
waives his right to take up to 21 days to decide whether to sign this Agreement.
Executive shall have the right to revoke this Agreement within seven (7) days
after Executive signs it. Any revocation of this Agreement must be in writing
and submitted to Vice President-Human Resources of the Company. None of the
Company's obligations hereunder become effective until Executive signs the
Agreement and the seven (7) day revocation period has expired.
8. Miscellaneous.
(a) This Agreement shall be binding upon the parties and may not be
modified in any manner, except by a writing signed by duly authorized
representatives of the parties. This Agreement is binding upon and shall inure
to the benefit of the parties and their respective agents, assigns, heirs,
executors, successors and administrators.
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(b) In the event that one or more of the provisions of this Agreement
is held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby. Moreover, if one or more of the provision contained in this
Agreement is held to be excessively broad as to duration, scope, activity or
subject, such provisions will be construed by limiting and reducing them so as
to be enforceable to the maximum extent compatible with applicable law.
(c) This Agreement shall be interpreted and construed by the laws of
the State of Delaware (other than those laws that would defer to the substantive
laws of another jurisdiction). Executive hereby submits to and acknowledges the
jurisdiction of the courts of the State of Delaware, or, if appropriate, a
federal court sitting in the State of Delaware (which courts, for the purposes
of this Agreement, are the only courts of competent jurisdiction), over any
suit, action or other proceeding arising out of, under or in connection with
this Agreement or the subject matter hereof.
(d) Waiver by either party of a beach of any provision of this
Agreement by the other shall not operate as a waiver of any other or subsequent
breach by such other party.
9. Voluntary Assent. By signing below, Executive acknowledges and
represents that Executive has read this Agreement, that he understands its
meaning and content, that he has been afforded a sufficient opportunity to
consider the Agreement, that he has have been advised to consult with an
attorney about the Agreement, that he has freely and voluntarily assented to all
of the terms and conditions hereof, and that he has signed the Agreement as his
own free and voluntary act.
Kindly sign this Agreement where indicated below and return the original to
us. A second copy has been enclosed for your files.
MedSource Technologies, Inc.
By:
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Agreed to and Accepted by:
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Xxxxx Xxxxxxx
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