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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of May 31, 2000 (this "Agreement"),
is made and entered into by and between Medical Device Manufacturing, Inc.,
d/b/a Rivo Technologies, a Colorado corporation (the "Company"), UTI
Corporation, a Pennsylvania corporation ("UTI"), and Xxxxxx X. Xxxxx
("Employee").
WHEREAS, Employee is currently employed as the Chief Executive Officer
of UTI;
WHEREAS, UTI Acquisition Corp., a wholly-owned subsidiary of the
Company has agreed to purchase all of the issued and outstanding shares of the
UTI's capital stock pursuant to the Purchase Agreement by and among UTI
Acquisition Corp., UTI and the shareholder of UTI dated May 31, 2000 (the
"Purchase Agreement") and has conditioned the consummation of that purchase on
the execution and delivery of this Agreement; and
WHEREAS, the Company and UTI desire to retain the services of Employee
subsequent to such purchase of shares of the Company's capital stock, and
Employee desires to be employed by the Company, on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
set forth herein and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and as an inducement to the Company to
complete the purchase of the shares of UTI's capital stock, the parties hereto
hereby agree as follows:
1. Employment. The Company hereby employs Employee, and Employee
accepts such employment and agrees to perform services for the Company and UTI,
for the period and upon the other terms and conditions set forth in this
Agreement.
2. Position and Duties.
(a) Service with the Company and UTI. During the Term, Employee agrees
to serve as (i) President and Chief Executive Officer of the Company, and (ii) a
member of the board of directors of the Company (the "Board"). As President and
Chief Executive Officer of the Company, Employee shall have overall charge of
the business operations of the Company with the general powers and duties of
supervision and management usually vested in the chief executive officer and
president of a corporation and shall perform such reasonable employment duties
as the Board shall assign to him from time to time. Employee's services pursuant
to this Agreement shall be performed primarily at UTI's offices in Collegeville,
Pennsylvania or at such other facilities of the Company as the Company and
Employee may agree upon from time to time. Employee's responsibilities and
obligations as a director of the Company shall be governed by the Company's
charter documents.
(b) Performance of Duties. Employee agrees to serve UTI and the Company
faithfully and to perform Employee's duties and responsibilities to the best of
Employee's
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abilities in a reasonably diligent, trustworthy, businesslike and efficient
manner. Employee further agrees to devote his full time, attention and efforts
to the business and affairs of UTI and the Company during the Term.
Notwithstanding the foregoing, Employee shall be permitted, consistent with
Employee's practices immediately preceding the execution of this Agreement, to
devote time to eVasc provided that (i) such attention to eVasc shall not
interfere with Employee's duties hereunder and (ii) that such duties shall be
performed pursuant to that certain Licensed Technical Assistance Agreement
between UTI and eVasc, L.P., as such agreement may be amended from time to time.
Employee hereby confirms that he is under no contractual commitment inconsistent
with his obligations set forth in this Agreement, and that, during the Term, he
will not render or perform services for any other corporation, firm, entity or
person that are inconsistent with the provisions of this Agreement. Employee
hereby further confirms that he has terminated any existing employment
agreement, if any, that he may have had with UTI, or any other corporation,
firm, entity or person, prior to the date hereof.
3. Compensation.
(a) Base Salary. During the Term, Employee's base salary shall be paid
at a rate of $244,555 per annum, which base salary shall be paid in regular
installments in accordance with the Company's general payroll practices,
including those related to withholding for taxes, insurance and similar items.
The base salary payable to Employee during each year subsequent to the first
year of Employee's employment shall be established by the Company's Board of
Directors following an annual performance review, but in no event shall the base
salary for any subsequent year be less than the base salary in effect for the
prior year.
(b) Incentive Compensation. In addition to the base salary, Employee
shall be eligible to receive annual bonuses as follows:
(i) In any given year, Employee shall be eligible to receive
an annual bonus based on the Company's annual target Adjusted EBITDA (as defined
below) in accordance with the following: (A) when the COMPANY reaches
ninety-five percent (95%) of the annual target Adjusted EBITDA (as defined
below) (the "EBITDA Target"), for every one percent (1%) over the EBITDA Target
up to and including one hundred ten percent (110%) of the EBITDA Target,
Employee shall be entitled to $19,000; (B) for every one percent (1%) over 110%
of the EBITDA Target up to and including one hundred twenty one percent (121%)
of the EBITDA Target, Employee shall be entitled to $14,000; and (C) for every
one percent (1%) over one hundred twenty one percent (121%) of the EBITDA
Target, Employee shall be entitled to $9,000. Employee shall receive this annual
bonus payable in a lump sum in accordance with the Company's general payroll
practices, including those related to withholding for taxes, insurance and
similar items, within forty five (45) days after the determination of EBITDA in
any given year.
(ii) "Adjusted EBITDA" shall mean, for any period, for the
Company, Net Income (as defined below), plus (A) any income or franchise taxes,
plus (B) total interest expenses in such period, plus (C) amortization and
depreciation deducted in determining Net Income
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for such period, plus (D) all other non-cash charges deducted in determining Net
Income for such period, plus (E) any management, transaction, or other fees paid
by the Company to KRG Capital Partners, LLC, a Colorado limited liability
company ("KRG"), or any successor or affiliate of KRG. "Net Income" for any
period of determination shall mean the net income of the Company determined in
accordance with generally accepted accounting principles in effect at the time
of determination, but excluding (but only to the extent otherwise included): (X)
extraordinary items; (Y) earnings or losses from sales of fixed or capital
assets and (Z) earnings or losses attributable to any period other than the
period of calculation. Adjusted EBITDA and Net Income shall be derived from the
Company's financial statements, which shall be audited by a nationally
recognized firm of independent certified public accountants.
(iii) In addition to the foregoing, Employee may be entitled
to an annual bonus to be paid in such amount as may be determined at the sole
and absolute discretion of the Company's Board of Directors.
(c) Participation in Benefit Plans. During the Term, Employee shall be
eligible to participate in all of the Company's and UTI's benefit plans or
programs that have been established for the other employees of the Company at
the same level as Employee, to the extent that Employee meets the requirements
for each individual plan. The Company provides no assurances as to the adoption
or continuance of any particular benefit plan or program, and Employee's
participation in any such plan or program shall be subject to the terms,
provisions, rules and regulations applicable thereto.
(d) Expenses. During the Term, the Company shall reimburse Employee for
all reasonable and necessary out-of-pocket expenses incurred by Employee in the
performance of his duties under this Agreement in accordance with the Company's
customary and normal practices, subject to the presentment of appropriate
vouchers in accordance with the Company's normal policies for expense
verification.
(e) Automobile Allowance. During the Term, the Company shall provide
Employee with an automobile allowance consistent with UTI policy in effect on
the date hereof.
(f) Association Dues. During the Term, the Company shall reimburse
Employee, at a level consistent with that in existence immediately preceding the
execution of this Agreement, for dues and associated expenses for Employee's
participation in the Young President's Organization.
4. Term.
(a) Duration of Employment. Employee's employment hereunder shall be
for a period of five (5) years, commencing on the date hereof (the "Term");
provided, however, that Employee's employment hereunder shall terminate prior to
the expiration of the Term in the event that at any time during such Term:
(i) Employee dies;
(ii) Employee becomes Disabled (as hereinafter defined);
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(iii) The Board of Directors of the Company elects to
terminate this Agreement for Cause and notifies Employee in writing of
such election;
(iv) The Board of Directors of the Company elects to terminate
this Agreement without Cause and notifies Employee in writing of such
election;
(v) Employee elects to terminate this Agreement for "Good
Reason" and notifies the Company in writing of such election; or
(vi) Employee elects to terminate this Agreement without "Good
Reason" and notifies the Company in writing of such election.
If this Agreement is terminated pursuant to clause (i), (ii), (iii) or
(v) of this Section 4(a), such termination shall be effective immediately. If
this Agreement is terminated pursuant to clause (iv) or (vi) of this Section
4(a), such termination shall be effective thirty (30) days after delivery of the
notice of termination.
(b) "Cause" Defined. "Cause" means:
(i) Employee has breached the provisions of this Agreement,
any material written Company policy or any material contract between
the Employee and the Company and Employee has failed to cure such
breach within thirty (30) days after receipt of written notice of
default from the Company;
(ii) Employee has failed to perform Employee's duties and
responsibilities in accordance with the provisions of Section 2 of this
Agreement, as reasonably determined by the Company's Board of
Directors, or has engaged in willful misconduct, including, without
limitation, willful failure to perform Employee's duties as an officer
or employee of UTI and/or the Company and Employee has failed to cure
such failure or misconduct within thirty (30) days after receipt of
written notice of default from the Company;
(iii) Employee has committed fraud, misappropriation or
embezzlement in connection with the Company's and/or UTI's business or
has otherwise breached his fiduciary duty to the Company and/or UTI;
(iv) Employee has been convicted or has pleaded nolo
contendere to any act constituting a felony under the laws of any state
or of the United States of America, or any crime involving moral
turpitude that, in the reasonable determination of the Company's Board
of Directors, causes material harm to the Company and/or UTI; or
(v) Employee abuses illegal drugs, alcohol or other controlled
substances.
(c) Effect of Termination Notwithstanding any termination of this
Agreement, Employee, in consideration of his employment hereunder to the date of
such termination, shall
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remain bound by the provisions of this Agreement which specifically relate to
periods, activities or obligations upon or subsequent to the termination of
Employee's employment.
(d) "Disabled" Defined. As used in this Agreement, the term "Disabled"
means any mental or physical condition that renders Employee unable to perform
the essential functions of his position, with or without reasonable
accommodation, as is consistent with the Americans with Disabilities Act and the
Family and Medical Leave Act; for a period in excess of ninety (90) consecutive
days or more than one hundred twenty (120) days during any period of three
hundred sixty-five (365) calendar days.
(e) Surrender of Records and Property. Upon termination of Employee's
employment with the Company, Employee shall deliver promptly to the Company all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof that relate in
any way to the business, products, practices or techniques of the Company or any
of its Affiliates (as hereinafter defined), and all other property, trade
secrets and confidential information of the Company or any of its Affiliates,
including, but not limited to, all documents that in whole or in part contain
any trade secrets or confidential information of the Company or any of its
Affiliates, which in any of these cases are in Employee's possession or under
Employee's control.
(f) Wage Continuation. If Employee's employment by the Company is
terminated pursuant to clause (i), (ii), (iv) or (v) of Section 4(a), the
Company shall continue to pay to Employee or his estate, as the case may be, his
base salary then in effect (less any payments received by Employee from any
disability income insurance policy provided to him by the Company) and shall
continue to provide health insurance benefits for Employee through the earlier
of (i) the date that Employee has obtained other full-time employment, or (ii)
twelve (12) months from the date of termination of employment. Notwithstanding
the foregoing, if (i) Employee terminates his employment with the Company
pursuant to clause (v) of Section 4(a), and (ii) Employee has been employed by
the Company less than one year, the Company shall continue to pay to Employee
his base salary then in effect for twenty-four (24) months from the date of
termination. If this Agreement is terminated pursuant to clause (iii) or (vi) of
Section 4(a), Employee's right to base salary and all benefits shall immediately
terminate, except as may otherwise be required by applicable law.
(g) Termination of Benefits. All of Employee's rights to any other
employee benefit hereunder (except as described in 4(f) or pursuant to law)
accruing after the termination of Employee's employment with the Company shall
cease upon such termination. Upon termination of this Agreement for any reason
whatsoever, Employee shall have the right to receive compensation at the rate of
Employee's then applicable base salary for any accrued but unused vacation time
and any and all benefits due Employee pursuant to Section 3(b) as of
termination.
(h) "Affiliate" Defined. As used in this Agreement, the term
"Affiliate" of a person or entity means any person or entity controlled by,
controlling or under common control with such person or entity.
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(i) "Good Reason" Defined. As used in this Agreement, the term "Good
Reason" means (i) any involuntary reduction in base salary as provided in
Section 3(a) hereof (that does not correspond to any material change or
reduction in the duties of Employee which is at the request or consent of
Employee); (ii) any non-consensual material reduction in benefits as provided in
Section 3(b) hereof (that does not correspond to any material change or
reduction in the duties of Employee which is at the request or consent of
Employee); (iii) any involuntary material change in the title, duties or
material terms and conditions of employment of Employee; or (iv) any
non-consensual required relocation of Employee's principal place of employment
of a sixty (60) mile radius of the Employee's then principal place of employment
that is expected to be permanent or indefinite, provided that this exception
shall not apply to reasonable and necessary business travel of any duration.
(j) Bonus Continuation. If Employee's employment by the Company is
terminated pursuant to clause (i), (ii), (iv) or (v) of Section 4(a), the
Company shall pay to Employee or his estate, as the case may be, pursuant to
Section 3(b) Employee's pro rata share of all amounts earned or accrued
thereunder through such date of termination. In the case of bonuses under
Section 3(b) that are calculated based on an annual basis or other specified
period of time, Employee, or his estate, as the case may be, shall receive
payment of Employee's pro rata portion (subject to applicable withholdings
pursuant to the Company's standard payroll practices) following the termination
of the period for which such bonuses are calculated notwithstanding the fact
that Employee is not employed by the Company on the last day of such period. If
Employee's employment is terminated pursuant to clauses (iii) or (vi) of Section
4(a), Employee's right to payments pursuant to all clauses of Section 3(b) shall
immediately terminate, except as may otherwise be required by applicable law.
5. Ventures. If, during the Term, Employee is engaged in or associated
with the planning or implementing of any project, program or venture involving
the Company, or any of its Affiliates, and a third party or parties, all rights
in such project, program or venture shall belong to the Company or its
Affiliates, as applicable. Except as approved by the Company's Board of
Directors, Employee shall not be entitled to any interest in such project,
program or venture or to any commission, finder's fee or other compensation in
connection therewith other than the compensation to be paid to Employee as
provided in this Agreement. Employee shall not knowingly have any interest,
direct or indirect, in any vendor or customer of the Company or any of its
Affiliates.
6. Intellectual Property.
(a) Disclosure and Assignment. Employee will promptly disclose in
writing to the Company complete information concerning each and every invention,
discovery, improvement, device, design, apparatus, practice, process, method or
product, whether patentable or not, made, developed, perfected, devised,
conceived or first reduced to practice by Employee, either solely or in
collaboration with others, during the Term, or within six (6) months thereafter,
whether or not during regular working hours, relating either directly or
indirectly to the business, products, practices or techniques of the Company or
any of its Affiliates ("Developments"). Employee, to
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the extent that he has the legal right to do so, hereby acknowledges that any
and all of the Developments are the property of the Company and hereby assigns
and agrees to assign to the Company any and all of Employee's right, title and
interest in and to any and all Developments. At the request of the Company,
Employee will confer with the Company and its representatives for the purpose of
disclosing all Developments to the Company as the Company shall reasonably
request during the period ending one (1) year after termination of Employee's
employment with the Company.
(b) Opportunity. If during the Term, or within six (6) months
thereafter, Employee develops or conceives of any invention, discovery,
improvement, device, design, apparatus, practice, process, method or product of
any kind or nature whatsoever, whether patentable or not (collectively, an
"Opportunity"), Employee shall as promptly thereafter as practicable disclose
the Opportunity to the Company in writing and in reasonable detail. Within 10
business days following its receipt of Employee's disclosure (before and during
which time Employee shall not disclose the Opportunity to any other person or
entity), the Company shall notify Employee whether the Company believes that the
Opportunity constitutes a Development. If the Company informs Employee that the
Opportunity is not a Development or fails to respond within ten business days to
Employee's disclosure, Employee shall thereafter be free to exploit or pursue
the Opportunity in a manner determined by Employee in Employee's sole
discretion, but in no event shall Employee do so in violation or derogation of
Employee's other obligations under this Agreement. If the Company notifies
Employee that the Opportunity is a Development and Employee disagrees with that
conclusion, the parties' dispute shall be resolved as provided in Section 7,
below, provided that until such dispute is fully and finally resolved Employee
shall not disclose the Opportunity to any other person or entity, or take any
action intended to exploit, further or profit in any way from the Opportunity,
or assist any other person in doing so.
(c) Limitation on Sections 6(a), 6(b), 6(g) and 6(h). The provisions of
Sections 6(a), 6(b), 6(g) and 6(h) shall not apply to any Development meeting
the following conditions:
(i) such Development was developed entirely on Employee's own
time;
(ii) such Development was made without the use of any
equipment, supplies, facility or trade secret information of the
Company or any of its Affiliates;
(iii) such Development does not relate (A) directly to the
business of the Company or any of its Affiliates or (B) to the
Company's, or any of its Affiliate's, actual or demonstrably
anticipated research or development; and
(iv) such Development does not result from any work performed
by Employee for the Company or any of its Affiliates.
(d) Assistance of Employee. Upon request and without further
compensation therefor, but at no expense to Employee, and whether during the
Term or thereafter, Employee will do all lawful acts, including but not limited
to, the execution of papers and lawful oaths and the giving of testimony, that,
in the opinion of the Company, may be necessary or desirable in
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obtaining, sustaining, reissuing, extending and enforcing United States and
foreign patents, including but not limited to, design patents, on the
Developments, and for perfecting, affirming and recording the Company's, or any
of its Affiliate's, complete ownership and title thereto, and to cooperate
otherwise in all proceedings and matters relating thereto.
(e) Records. Employee will keep complete, accurate and authentic
accounts, notes, data and records of the Developments in the manner and form
requested by the Company. Such accounts, notes, data and records shall be the
property of the Company, and, upon its request, Employee will promptly surrender
same to it or, if not previously surrendered upon its request or otherwise,
Employee will surrender the same, and all copies thereof, to the Company upon
the conclusion of his employment.
(f) Obligations, Restrictions and Limitations. Employee understands
that the Company, or its Affiliates, may enter into agreements or arrangements
with agencies of the United States Government, and that the Company, or its
Affiliates, as applicable, may be subject to laws and regulations which impose
obligations, restrictions and limitations on it with respect to inventions and
patents which may be acquired by it or which may be conceived or developed by
employees, consultants or other agents rendering services to it. Employee shall
be bound by all such obligations, restrictions and limitations applicable to any
such invention conceived or developed by him during the Term and shall take any
and all further action which may be required to discharge such obligations and
to comply with such restrictions and limitations.
(g) Copyrightable Material. All right, title and interest in all
copyrightable material that Employee shall conceive or originate, either
individually or jointly with others, and which arise out of the performance of
this Agreement, will be the property of the Company and are by this Agreement
assigned to the Company along with ownership of any and all copyrights in the
copyrightable material. Upon request and without further compensation therefor,
but at no expense to Employee, and whether during the Term or thereafter,
Employee shall execute all papers and perform all other acts necessary to assist
the Company to obtain and register copyrights on such materials in any and all
countries. Where applicable, works of authorship created by Employee for the
Company in performing his responsibilities under this Agreement shall be
considered "works made for hire," as defined in the U.S. Copyright Act.
(h) Know-How and Trade Secrets. All know-how and trade secret
information conceived or originated by Employee that arises out of the
performance of his obligations or responsibilities under this Agreement or any
related material or information shall be the property of the Company, and all
rights therein are by this Agreement assigned to the Company.
(i) Licensed Technical Assistance Agreement. Notwithstanding anything
to the contrary, all work performed by Employee pursuant to the License
Agreement shall be subject to the foregoing provisions; provided, however, that
Employee shall not be required to assign to UTI his right, title and interest in
and to any Developments unrelated to Triplex (as defined in the License
Agreement). Without limiting the generality of the foregoing, it is the parties'
intent that UTI own the entire right, title and interest in and to any
Developments, including but not limited to copyrightable material, know-how and
trade secrets, pertaining to Triplex regardless of
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whether such Developments relate in whole or only in part to Triplex, provided,
however, that any and all such Developments shall be deemed to be Licensed
Rights (as defined in the License Agreement) available for use by eVasc under
the License Agreement; provided further that to the extent that any such
Development relates in whole or in part to the intellectual property of any
other licensor of eVasc ("Third Party Licensor Intellectual Property"), UTI
shall acquire all right, title and interest to such Development (although not to
the Third Party Licensor Intellectual Property).
7. Settlement of Disputes.
(a) Arbitration. Except as provided in Section 7(c), any claims or
disputes of any nature between the Company and Employee arising from or related
to the performance, breach, termination, expiration, application or meaning of
this Agreement or any matter relating to Employee's employment and the
termination of that employment by the Company shall be resolved exclusively by
arbitration in Philadelphia, Pennsylvania, in accordance with, as applicable,
the Commercial Arbitration Rules or Rules for Resolution of Employment Disputes
then existing of the American Arbitration Association. In the event of
submission of any dispute to arbitration, each party shall, not later than
thirty (30) days prior to the date set for hearing, provide to the other party
and to the arbitrator(s) a copy of all exhibits upon which the party intends to
rely at the hearing and a list of all persons each party intends to call at the
hearing. The fees of the arbitrator(s) and other costs incurred by Employee and
the Company in connection with such arbitration shall be paid by the party who
or which is unsuccessful in such arbitration.
(b) Binding Effect. The decision of the arbitrator(s) shall be in
writing and shall be final and binding upon both parties. Judgment of the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
(c) Resolution of Certain Claims--Injunctive Relief. Section 7(a) shall
have no application to claims by the Company asserting a violation of Section
4(e) or 6 or seeking to enforce, by injunction or otherwise, the terms of
Section 4(e) or 6. Such claims may be maintained by the Company in a lawsuit
subject to the terms of Section 7(d). Employee acknowledges that it would be
difficult to fully compensate the Company for damages resulting from any breach
by him of the provisions of this Agreement. Accordingly, Employee agrees that,
in addition to, but not to the exclusion of any other available remedy, the
Company shall have the right to enforce the provisions of Section 4(e) or 6 by
applying for and obtaining temporary and permanent restraining orders or
injunctions from a court of competent jurisdiction without the necessity of
filing a bond therefor, and without the necessity of proving actual damages, and
the Company shall be entitled to recover from Employee its reasonable attorneys'
fees and costs in enforcing the provisions of Section 4(e) or 6.
(d) Venue. Any action at law, suit in equity or judicial proceeding
arising directly, indirectly, or otherwise in connection with, out of, related
to or from this Agreement, or any provision hereof, shall be litigated only in
the courts of the Philadelphia County, Pennsylvania. Employee and the Company
consent to the jurisdiction of such courts over the subject matter set
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forth in Section 7(c). Employee waives any right Employee may have to transfer
or change the venue of any litigation brought against Employee by the Company.
8. Representations.
(a) Employee's Representations. Employee hereby represents and warrants
to the Company that (i) the execution, delivery and performance of this
Agreement by Employee does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Employee is a party or by which Employee is bound, (ii) Employee
is not a party to or bound by any employment agreement, covenant not to compete
or confidentiality agreement with any other person or entity, and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Employee, enforceable in accordance with its
terms.
(b) Company's Representations. Company hereby represents and warrants
to Employee that (i) the execution, delivery and performance of this Agreement
by the Company does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment, or decree to
which the Company is a party or by which the Company is bound, and (ii) upon the
execution and delivery of this Agreement by Employee, this Agreement shall be
the valid and binding obligation of the Company, enforceable in accordance with
its terms.
9. Miscellaneous.
(a) Entire Agreement. This Agreement (including the exhibits, schedules
and other documents referred to herein) and that certain Non-Competition
Agreement among Employee, UTI and the Company and dated of even date herewith
among contains the entire understanding between the parties hereto with respect
to the subject matter hereof and supersedes any prior understandings, agreements
or representations, written or oral, relating to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in separate
counterparts, each of which will be an original and all of which taken together
shall constitute one and the same agreement, and any party hereto may execute
this Agreement by signing any such counterpart.
(c) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule, the validity,
legality and enforceability of the other provision(s) of this Agreement will not
be affected or impaired thereby. To the extent that any court concludes that any
provision of this Agreement is void or voidable, the court shall reform such
provision(s) to render the provision(s) enforceable, but only to the extent
absolutely necessary to render the provision(s) enforceable and only in view of
the parties' express desire that the Company be protected to the greatest extent
allowed by law from the misuse or disclosure of confidential information and/or
Developments.
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(d) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by Section 9(e), successors and
assigns.
(e) Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable (including by operation of law) by either party without the prior
written consent of the other party to this Agreement, except that the Company
may, without the consent of Employee, assign its rights and obligations under
this Agreement to any corporation, firm or other business entity with or into
which the Company may merge or consolidate, or to which the Company may sell or
transfer all or substantially all of its assets, or of which fifty percent (50%)
or more of the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company. After any such
assignment by the Company, the Company shall be discharged from all further
liability hereunder and such assignee shall thereafter be deemed to be the
Company for the purposes of all provisions of this Agreement including this
Section 9.
(f) Modification, Amendment, Waiver or Termination. No provision of
this Agreement may be modified, amended, waived or terminated except by an
instrument in writing signed by the parties to this Agreement. No course of
dealing between the parties will modify, amend, waive or terminate any provision
of this Agreement or any rights or obligations of any party under or by reason
of this Agreement. No delay on the part of the Company in exercising any right
hereunder shall operate as a waiver of such right. No waiver, express or
implied, by the Company of any right or any breach by Employee shall constitute
a waiver of any other right or breach by Employee.
(g) Notices. All notices, consents, requests, instructions, approvals
or other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
Notices to Employee:
Xxxxxx X. Xxxxx
UTI Corporation
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
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Notices to Company:
Medical Device Manufacturing, Inc. d/b/a Rivo Technologies
c/o KRG Capital Partners, LLC
0000 Xxxxxxxx Xxxxxx
Tower One, Suite 1500
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Medical Device Manufacturing, Inc. d/b/a Rivo Technologies
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
Any party may change the address set forth above by notice to each
other party given as provided herein.
(h) Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(i) Governing Law. All matters relating to the interpretation,
construction, validity and enforcement of this agreement shall be governed by
the internal laws of the Commonwealth of Pennsylvania, without giving effect to
any choice of law provisions thereof.
(j) Withholding Taxes. The Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
[Signature Page Follows]
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13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph.
MEDICAL DEVICE MANUFACTURING, INC.
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President & Chief Executive Officer
UTI CORPORATION
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President & Assistant Secretary
EMPLOYEE
/s/ XXXXXX X. XXXXX
-------------------------------------------
Xxxxxx X. Xxxxx
