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EXHIBIT 10.37
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of January 31, 2001 (this
"Agreement"), is made and entered into by and between MDMI Holdings, Inc., a
Colorado corporation (the "Company") and Xxxxxx X. Xxxxxx ("Employee").
WHEREAS, Employee is currently employed as the Vice President of
Finance of the Company;
WHEREAS, Employee is currently located in Roanoke, Virginia at the
facility of the Company's subsidiary, Noble-Met, Ltd.;
WHEREAS, Employee and the Company have determined that Employee's
duties will be best performed at the Company's corporate headquarters, located
in Collegeville, Pennsylvania;
WHEREAS, in conjunction with Employee's relocation to the Company's
corporate headquarters, the Company and Employee desire to enter into a written
employment agreement, whereby the Company shall retain the services of Employee,
and Employee shall 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 Employee to
relocate and as an inducement to the Company to retain Employee's services, 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, for the
period and upon the other terms and conditions set forth in this Agreement.
2. Position and Duties.
(a) Service with the Company. During the Term, Employee agrees to serve
as Vice President of Finance of the Company. As Vice President of Finance,
Employee shall report to the Senior Vice President of Finance/Chief Financial
Officer, or if no such position exists, to the Chief Executive Officer. At the
direction of the Senior Vice President of Finance/Chief Financial Officer or, if
applicable, the Chief Executive Officer, Employee shall be responsible for the
financial accounting and financial management of the Company's business
operations with the general powers and duties of supervision and management
usually vested in a principal financial officer of a corporation and shall
perform such other reasonable employment duties as the President, Chief
Executive Officer and the Board of Directors shall assign to him from time to
time. Employee's services pursuant to this Agreement shall be performed
primarily at the Company'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.
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(b) Performance of Duties. Employee agrees to serve the Company
faithfully and to perform Employee's duties and responsibilities to the best of
Employee's 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 the Company during the Term. 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 any other corporation, firm, entity or person,
prior to the date hereof.
3. Compensation.
(a) Base Salary. During the Term, Employee's initial base salary shall
be paid at a rate of $113,000 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.
Employee's base salary may be adjusted during the Term by the Company's Board of
Directors following Employee's annual performance review, but in no event shall
Employee's adjusted base salary be less than the base salary in effect
immediately prior to such performance review. Employee's first annual
performance review following the date of this Agreement is scheduled for
February 2001, accordingly, Employee's initial base salary set forth above may
be adjusted in accordance with this paragraph.
(b) Bonus. During the Term, 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 Chief Executive Officer, the Company's Board of Directors or
the Compensation Committee thereof. In addition, Employee shall be eligible to
participate in any bonus plan the Company may adopt for senior management.
(c) Noble-Met Earnout. As a former shareholder of Noble-Met, Ltd., a
Virginia corporation and wholly-owned subsidiary of the Company, Employee shall
be entitled to continue to participate as a former shareholder and as an
employee in that certain earnout arrangement as set forth in the Share Purchase
Agreement, dated December 22, 1999, among the Company (formerly known as Medical
Device Manufacturing, Inc.), Noble-Met, Ltd. and the shareholders of Noble-Met,
Ltd., as amended by the First Amendment to Share Purchase Agreement dated
January 11, 2000 and by that certain side letter among the Company and the
former shareholders of Noble-Met dated January 8, 2001.
(d) Participation in Benefit Plans. During the Term, Employee shall be
eligible to participate in all of the Company'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. Subject to the requirements or restrictions of any particular
plan or program in which Employee is eligible to participate, with respect to
any plan or program that bases eligibility or calculation of benefits on length
of service, Employee's
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service with Noble-Met will, for purposes of such eligibility or calculation, be
considered service with the Company. 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.
(e) 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.
(f) Vacation. Employee shall receive three (3) weeks of paid vacation,
which amount of vacation shall be adjusted in accordance with the Company's
policies with respect to vacation for other employees of the Company at the same
level as Employee, as such policies may be in effect from time to time.
(g) Relocation Expenses. The Company shall, (i) at the Company's
expense, provide Employee and spouse three (3) trips to Collegeville,
Pennsylvania or the surrounding area in advance of Employees relocation thereto,
(ii) at the Company's expense, through August 1, 2001 provide Employee with
temporary housing in or around Collegeville, Pennsylvania and (iii) in
accordance with established Company policy for senior management, reimburse
Employee for the usual, preapproved and documented direct costs of relocating to
Collegeville, Pennsylvania or the surrounding area.
4. Term.
(a) Duration of Employment. Employee's employment hereunder shall be
for a period of two (2) 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);
(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.
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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 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 business or has otherwise
breached his fiduciary duty to the Company;
(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; 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 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) 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
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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) six (6) months from the date of
termination of employment. 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.
(f) Termination of Benefits. All of Employee's rights to any other
employee benefit hereunder (except as described in Section 4(e) 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 as of termination.
(g) "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.
(h) "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, provided, however, that
the Company's hiring of a chief financial officer and any corresponding change
of Employee's duties as a result thereof shall not constitute Good Reason; 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.
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.
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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 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 ten
(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 8, 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;
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(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 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.
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(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.
7. Confidential Information.
(a) Except as permitted or directed by the Company's Board of
Directors, Employee agrees not to divulge, furnish or make accessible to anyone
or use in any way (other than in connection with and in furtherance of
Employee's work on behalf of the Company or its Affiliates) any confidential or
secret knowledge or nonpublic information of the Company or any of its
Affiliates that Employee has acquired or become acquainted with prior to the
date of this Agreement, whether developed by Employee or by others, concerning
any trade secrets, confidential or secret designs, processes, formulae, plans,
devices or material (whether or not patented or patentable) directly or
indirectly useful in any aspect of the business of the Company or any Affiliate
of the Company, any customer or supplier lists, details of relationships with
customers, vendors, distributors or suppliers, financial information, details of
operation, organization and management, business plans and strategies,
information about employees and agents of the Company or any Affiliate of the
Company, any confidential or secret development or research work of the Company
or any Affiliate of the Company, any analyses, records or date generated from
any such information of the Company or any Affiliate of the Company, or any
other confidential information or secret aspects of the business of the Company
or any Affiliate of the Company (collectively, "Confidential Information"). This
Agreement shall not prohibit Employee from complying with any subpoena or court
order, provided that Employee shall at the earliest practicable date provide a
copy of the subpoena or court order to the President the Company, it being the
parties' intention to give the Company or any Affiliate of the Company a fair
opportunity to take appropriate steps to prevent the unnecessary or improper use
or disclosure of Confidential Information, as determined by the Company or any
Affiliate of the Company in its reasonable judgment.
(b) Employee acknowledges that the Confidential Information constitutes
a unique and valuable asset of the Company or an Affiliate of the Company,
represents a substantial investment of time and expense by the Company or an
Affiliate of the Company, as applicable, would be susceptible to immediate
competitive application by a competitor of the Company or an Affiliate of the
Company and that any disclosure or other use of such Confidential Information
other than for the sole benefit of the Company or an Affiliate of the Company
would be wrong and would cause irreparable harm to the Company. Employee agrees
to refrain from any acts or omissions that would reduce the value of such
Confidential Information to the Company or any Affiliate of the Company. The
foregoing obligations of confidentiality shall not apply to any Confidential
Information that subsequently becomes generally publicly known in the form in
which it was obtained from the Company or an Affiliate of the Company, other
than as a direct or indirect result of the breach of this Agreement by Employee.
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(c) Records Containing Confidential Information. "Confidential Records"
means all documents and other records, whether in paper, electronic or other
form, that contain or reflect Confidential Information. All Confidential Records
prepared by or provided to Employee are and shall remain the property of the
Company or any Affiliate of the Company. Except as permitted or directed by the
Company's Board of Directors, Employee shall not, at any time, directly or
indirectly: (i) copy or use any Confidential Record for any purpose not relating
directly to Employee's work for the Company or any Affiliate of the Company; or
(ii) show, give, sell, disclose or otherwise communicate any Confidential Record
or the contents of any Confidential Record to any person or entity other than
the Company or any Affiliate of the Company or a person or entity authorized by
the Company or any Affiliate of the Company, as applicable, to have access to
the Confidential Record in question. Upon the termination of Employee's
employment, if any, with the Company, or upon the request of the Company or any
Affiliate of the Company, Employee shall immediately deliver to the designated
person (and shall not keep in Employee's possession or deliver to any other
person or entity) all Confidential Records and all other property of the Company
or any Affiliate of the Company in Employee's possession or control. This
Agreement shall not prohibit Employee from complying with any subpoena or court
order, provided that Employee shall at the earliest practicable date provide a
copy of the subpoena or court order to the President of the Company, it being
the parties' intention to give the Company or any Affiliate of the Company a
fair opportunity to take appropriate steps to prevent the unnecessary or
improper use or disclosure of Confidential Records, as determined by the Company
or any Affiliate of the Company, in its reasonable judgment.
(d) Third-Parties' Confidential Information. Employee acknowledges that
the Company and Affiliates of the Company have received and in the future will
receive from third parties confidential or proprietary information, and that the
Company and any Affiliate of the Company must maintain the confidentiality of
such information and use it only for authorized purposes. Employee shall not use
or disclose any such information except as authorized by the Company or any
Affiliate of the Company, as applicable or the third party to whom the
information belongs.
8. Settlement of Disputes.
(a) Arbitration. Except as provided in Section 8(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
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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 8(a) shall
have no application to claims by the Company asserting a violation of Section
4(e), 6 or 7 or seeking to enforce, by injunction or otherwise, the terms of
Section 4(e), 6 or 7. Such claims may be maintained by the Company in a lawsuit
subject to the terms of Section 8(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), 6 or 7
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), 6 or 7.
(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 forth in
Section 8(c). Employee waives any right Employee may have to transfer or change
the venue of any litigation brought against Employee by the Company.
9. 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) except
as specifically set forth in Section 10(a) below, 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. The 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,
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this Agreement shall be the valid and binding obligation of the Company,
enforceable in accordance with its terms.
10. Miscellaneous.
(a) Entire Agreement. This Agreement (including the exhibits, schedules
and other documents referred to herein) and that certain Confidentiality
Agreement among Employee, Noble-Met and the Company dated April 13, 2000,
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. In the
event of any conflict between the terms of this Agreement and the
Confidentiality Agreement dated April 13, 2000, this Agreement shall control.
(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 or
Developments.
(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 10(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
Xxxxxxx 00.
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(x) 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. Xxxxxx
c/o UTI Corporation
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Notices to Company:
MDMI Holdings, Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
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
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.
-12-
13
(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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14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph.
MDMI HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President & Chief Executive Officer
EMPLOYEE
/s/ XXXXXX X. XXXXXX
------------------------------------------
Xxxxxx X. Xxxxxx
