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Exhibit 10.2 EMPLOYMENT AGREEMENT
This Employment Agreement
("Agreement") is made effective as of January 19, 2009 (the
"Effective Date"), by and between ev3 Endovascular, Inc.
("Company"), having a principal place of business at 9600 54th
Avenue North, Plymouth, MN 55442, and Shawn McCormick ("Employee"),
having an address of 3016 137th Avenue NE Ham Lake, MN 55304.
WHEREAS , Company is a
leading global medical device company focused on catheter-based, or
endovascular, technologies for the minimally invasive treatment of
vascular diseases and disorders and desires to employ Employee on
the terms and subject to the conditions set forth herein.
WHEREAS , Company has
expended considerable time, effort and resources in the development
of certain confidential, proprietary, and trade secret protected
information, which must be maintained as confidential in order to
ensure the success of Company’s business;
WHEREAS , Company has
expended considerable funds, time, effort, and resources in the
development of its customer goodwill and recruiting and training
its workforce, which also must be maintained in order to ensure the
success of Company’s business; and
WHEREAS , by virtue of
Employee’s employment with Company, Employee will be
performing services in a confidential capacity and will be
acquiring knowledge about Company’s valuable confidential and
technical information, its trade secrets, customer goodwill, and
its highly trained workforce and Company desires reasonable
protection of its confidential business and technical information,
its trade secrets, customer goodwill, and its highly trained
workforce. NOW THEREFORE , in
consideration of the covenants and promises contained herein, and
of Employee’s at-will employment by Company, the compensation
and benefits received by Employee from Company, and the access
given Employee to Company’s Confidential and Proprietary
Information, as defined below, all of which Employee acknowledges
are good and valuable consideration for Employee entering into this
Agreement and for the restrictions imposed in Employee’s
current and post-employment activities under this Agreement, the
parties hereto agree as follows: 1. Employment .
1.01 . Position
. Company hereby employs Employee in the position described in
Employee’s offer letter, with such specific duties,
responsibilities, and powers as Company may from time to time
prescribe. 1.02 .
Best Efforts . Employee covenants and agrees that, at all
times during the term of this Agreement, Employee shall devote
Employee’s full-time, best efforts to the duties assigned to
Employee by Company. Employee further covenants and agrees that
Employee will not, directly or indirectly, engage or participate in
any activities at any time during the term of this Agreement in
conflict with the best interests of Company.
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2.
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Compensation and Benefits .
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2.01 . Hourly
Compensation . Company shall pay Employee compensation at the
rate set forth in Employee’s offer letter, less applicable
tax withholdings, paid semi-monthly in accordance with
Company’s normal payroll practices. Company may adjust
Employee’s hourly compensation periodically according to its
payroll policies, which presently provide for a salary review
effective January 1 of each year.
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2.02 .
Benefits . Employee shall be entitled to participate in
Company’s employee benefit programs in accordance with the
terms of such plans and programs as in effect from time to time.
3. Term and Termination .
3.01 . At-Will
Employment . The term of Employee’s employment under this
Agreement shall commence on the Start Date set forth in
Employee’s offer letter and continue until terminated as
hereinafter provided. Employee understands and agrees that
employment with Company is at-will and is not guaranteed for any
specified duration. 3.02
. Termination With or Without Cause . Employee
acknowledges and agrees that Employee’s employment may be
terminated by Company or Employee at any time, with or without
cause, with or without notice, and for any reason.
3.03 . Payment upon
Termination . In the event of a termination of Employee’s
employment for any reason, Employee shall be entitled to
compensation to the date of termination, but Company shall not be
obligated to make any further payments after the date of
termination. 4. Employee’s Representations and
Duties . 4.01
. Company . Solely for purposes of Articles 4, 5, 6,
7, 8, 9 and 10 of this Agreement, "Company" includes Company,
its parent, subsidiary, and affiliated companies, and their
successors and assigns.
4.02 . No Conflicts . Employee represents and
warrants to Company that Employee is not currently subject to any
non-competition, confidentiality, or any other type of agreement or
other obligation with any third party (including but not limited to
any former employer) that would prohibit Employee from accepting
this position with Company, conflict with Employee’s
obligations under this Agreement, or in any way restrict or impair
Employee’s ability to perform the full scope of duties and
responsibilities Employee is expected to perform for Company.
4.03 . Compliance
with Company Policies . Employee shall, at all times, comply
with all policies, rules, and procedures of Company, which include,
but are not limited to, Company’s Code of Conduct, Corporate
Compliance Policy, and Insider Trading Policy. By Employee’s
signature below, Employee acknowledges that Employee has received,
read, and agrees to abide by, each of the foregoing Company
policies. 4.04 .
Duty of Loyalty . In all aspects of Employee’s
employment with Company, Employee shall act in the utmost good
faith, deal fairly with Company, and fully disclose to Company all
information that Company might reasonably consider to be important
or relevant to Company’s business. Employee further agrees
that during employment by Company, Employee shall not engage in any
conduct that might result in, or create the appearance of using
Employee’s position for Employee’s private gain, or
otherwise create a conflict of interest, or the appearance of a
conflict of interest, with Company. Such prohibited conduct
includes, but is not limited to, having an undisclosed financial
interest in any vendor or supplier of Company, accepting payments
of any kind or gifts other than of a nominal value from vendors,
customers, or suppliers, or having an undisclosed relationship with
a family member or other individual who is employed by any entity
in active or
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potential competition with Company, and which creates a conflict
of interest. While employed at Company, Employee shall not
establish, operate, participate in, advise, or assist to establish
in any manner whatsoever any business, that could or would be in
competition with Company’s business, and Employee shall not
take any preliminary or preparatory steps toward establishing or
operating such a business. Notwithstanding the foregoing, Employee
may own less than two percent (2%) of any class of stock or
security of any company that competes with Company listed on a
national securities exchange.
4.05 . E-Mail Messages and Internet Usage .
Employee acknowledges and agrees that all e-mail messages that
Employee produces, sends, or receives while at Company facilities
or using Company equipment are the property of Company. Employee
also acknowledges and agrees that Company may monitor and inspect
all such messages and also may monitor and control the
communications that Employee initiates or receives through the
Internet while at Company facilities and while using Company
equipment in any location. Employee acknowledges that Employee has
no right to or expectation of privacy in such communications.
Employee agrees to cooperate with Company in its implementation of
such security and control measures as it may implement from time to
time with respect to e-mail and Internet communications and shall
take all reasonable precautions to ensure that the confidentiality
of any such communications containing Confidential and Proprietary
Information, as defined below, is maintained. Employee also agrees
that the Internet may not be used for the transmission or
intentional reception of obscene, scandalous, offensive, or
otherwise inappropriate materials, and that Employee will comply
with all Company policies regarding appropriate use of the Internet
and e-mail. 5. Nondisclosure of Confidential and
Proprietary Information .
5.01 . Definition of Confidential and Proprietary
Information . "Confidential and Proprietary Information" means
any and all information, whether oral, written, or committed to
Employee’s memory, that is not generally known by persons not
employed by, or parties to contracts with, Company, whether
prepared by Company or Employee, including but not limited to:
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(a)
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Inventions, designs, discoveries, works of authorship,
improvements, or ideas, whether or not patentable or copyrightable,
methods, processes, techniques, shop practices, formulae,
compounds, or compositions developed or otherwise possessed by
Company;
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(b)
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the subject matter of Company’s patents, design patents,
copyrights, trade secrets, trademarks, service marks, trade names,
trade dress, manuals, operating instructions, and other
intellectual property to the extent that such information is
unavailable to the public;
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(c)
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Company’s information, knowledge, or data concerning its
financial data, including financial statements and projections,
pricing information, costs, sales, budgets, and profits; business
plans such as products and services under development, clinical
trials, proposals, presentations, potential acquisitions under
consideration, and marketing strategies; manufacturing processes;
organizational structures, such as names of employees, consultants,
and their positions and compensation schedules; customer
information such as surveys, customer lists, lists of prospective
customers, customer research, customer meetings, customer account
records, sales records, training and servicing materials, programs,
techniques, sales, and contracts; supplier and vendor information
including lists and contracts; relational data models, company
manuals and policies, computer programs, software, disks, source
code, systems architecture, blue prints, flow charts, and licensing
agreements; and/or
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(d)
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any document marked "Confidential", or any information that
Employee has been told is "Confidential" or that Employee might
reasonably expect Company would regard as "Confidential," or any
information that has been given Company in confidence by customers,
suppliers, or other persons.
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5.02 .
Confidentiality Obligations . Employee agrees to hold all
Confidential and Proprietary Information in the strictest
confidence both during Employee’s employment relationship
with Company and after Employee’s employment relationship
with Company is voluntarily or involuntarily terminated for any
reason. To this end, Employee shall:
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(a)
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not make, or permit or cause to be made, copies of any
Confidential and Proprietary Information, except as necessary to
carry out Employee’s duties as prescribed by Company;
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(b)
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not disclose or reveal any Confidential and Proprietary
Information, or any portion thereof, to any person or company who
is not under a legal or contractual obligation to Company to hold
such information confidential;
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(c)
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take all reasonable precautions to prevent the inadvertent
disclosure of any Confidential and Proprietary Information to any
unauthorized person;
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(d)
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acknowledge that Company is the owner of all Confidential and
Proprietary Information
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