|
Exhibit 99.5
Execution Copy
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated as of May 4, 2007 (the
"Agreement"), is entered into by and between Ortho-Medical
Products, Inc. (the "Company"), a New York corporation and Jeanne
Wilde (the "Executive").
RECITALS
WHEREAS, the Executive has provided services to the Company for
several years or has been an officer of the Company for several
years; and
WHEREAS, the Company wishes to employ the services of Executive
and Executive desires to continue to render services to the
Company; and
WHEREAS, the Company and Executive deem it to be in their
respective best interests to enter into an agreement providing for
the Company’s employment of Executive on the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations, agreements, and promises set forth
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
AGREEMENT
1. Employment .
1.1
Term . The Company agrees to employ the Executive as
Administration Director of the Company and the Executive agrees to
accept such employment, for a period of two (2) years commencing as
of the date of this Agreement or for such longer term as the
Company and the Executive may agree in writing, but subject to the
termination provisions of Section 3 hereof (the "Term").
1.2
Duties . During the Term, as Administration Director of the
Company, Executive shall perform such duties and functions as are
reasonably assigned to him or her by the Board of Directors of the
Company (the "Board") and/or President of the Company (the
"President") that are consistent with Executive’s title and
position. Executive shall adhere in all material respects to
all of the Company’s policies and procedures applicable to
someone holding his or her position, except to the extent such
policies or procedures may conflict with the terms of this
Agreement, in which case the provisions hereof shall control, or
applicable law.
1.3
Time Devoted to Employment. Executive agrees to devote his
or her entire working time, attention and efforts to the Company
and its subsidiaries and affiliates.
Executive agrees to use his or her best, good
faith efforts to promote the success of the Company’s
business and will cooperate with all reasonable requests of the
Board in order to advance the best interests of the Company;
provided, however, that this shall not be construed as preventing
the Executive from accepting or maintaining directorships with
companies which do not compete with the Company, investing his or
her personal assets in businesses which do not compete with the
Company, and engaging in not-for-profit and civic activities that
do not interfere with the Executive’s duties.
1.4
Location of Employment. Executive’s principal place of
employment shall be at the Company’s principal office located
at 210 Jericho Turnpike, Mineola, New York 11501 or at another
office that may be mutually agreed by Executive and the
Company.
2. Compensation and Related Matters .
2.1
Base Salary. As compensation for services rendered
hereunder, the Company shall pay the Executive an annual base
salary of $102,000 or such higher amount as the Company, in its
sole judgment and discretion, may provide during the Term (the
"Annual Base"), which amount shall be paid bi-weekly in accordance
with the Company’s customary payroll practices.
2.2
Additional Compensation. As additional consideration
for the execution of this Agreement, the Executive is hereby
granted a one-time grant of stock options for 20,000 shares of
Common Stock of Andover Medical, Inc. at an exercise price per
share equal to the average of the closing price of such stock on
each of the last ten (10) trading days immediately prior to the
date hereof (the "Options"). The Company may, at its sole
discretion, elect to issue to the Executive additional Options from
time to time throughout the Term. The Options shall be issued in
accordance with the terms of the Andover Medical, Inc. 2006
Employee Stock Incentive Plan except to the extent otherwise
provided in this Agreement, in which case the terms hereof shall
apply. All Options shall vest in 24 equal monthly
installments, and be exercisable by Executive in whole or in part
at any time on and after the date hereof and through their
expiration date. The Options shall not be revocable or
cancelable in connection with the termination of this Agreement by
any party for any reason. In addition, the Company hereby
grants to the Executive "piggyback" registration rights with
respect to all shares of Common Stock issuable upon exercise of the
Options, such that the Executive shall have the right to require
the Company to include such shares in its next subsequent
registration statement on Form S-8 under the Securities Act of
1933, as amended, which the Company files after the exercise of any
Options, or on any other subsequent registration statement subject,
however, to customary exceptions, pro rata scale-back requests by
underwriters (if any), indemnification provisions and other terms
and conditions generally applicable to other holders of "piggyback"
registration rights with respect to the Company’s Common
Stock. The Company agrees to pay all costs and expenses
associated with registering the Executive’s shares.
2.3
Benefits. The Executive will be eligible to participate in
the Company’s employee benefit plans made available to all
employees of the Company, including medical, dental, life
insurance, and 401(k) plan, all in accordance with Company
policies. The
2
Executive will be afforded vacation during each
year of the Term in accordance with the Company’s current
policy.
2.4
Withholding. The Company shall make such deductions and
withhold such amounts from each payment made to Executive under
this Agreement as may be required from time to time by law,
governmental regulation or order and in accordance with the
Company’s customary payroll practices.
2.5
Expense Reimbursement . Executive shall be entitled to
reimbursement of reasonable and necessary business expenses
incurred by him or her in the course of providing services to the
Company, subject to appropriate documentation and in accordance
with the budgets and guidelines established by the Company from
time to time. Any travel required to be taken by the
Executive hereunder shall be in economy class.
2.6
Indemnification of Executive . Executive shall be
entitled to be indemnified by the Company, to the fullest extent
permitted by applicable law and the organizational documents of the
Company, against any losses, damages, liabilities, claims, actions,
judgments, costs and expenses (including without limitation,
attorneys’ fees and expenses) that may be incurred by him or
her in the course of, or in connection with, the performance of his
or her duties hereunder.
3. Termination of Employment .
3.1
Termination . The Executive’s employment hereunder may
be terminated prior to the end of the Term of this Agreement under
the following circumstances:
-
-
-
-
-
-
-
-
-
-
(a)
Death . The Executive’s employment
hereunder shall terminate upon his or her death.
(b)
Disability. If, as a result of the
incapacity of the Executive due to physical or mental illness, the
Executive shall have been wholly incapable of performing his or her
duties with the Company for a continuous period of not less than
six (6) months during any eighteen (18) month period, his or her
employment may be terminated by the Company for "Disability" after
delivering a written Notice of Termination to the Executive with
respect thereto.
(c)
Cause . Termination by the Company of the
employment of the Executive for "Cause" shall mean termination
based upon the Executive’s (i) willful breach or willful and
gross neglect of his or her duties and responsibilities, (ii)
criminal conviction of a felony or a crime of moral turpitude or a
plea of nolo contendere to either of the foregoing, occurring on or
after the execution of this Agreement, (iii) material breach of
this Agreement (iv) acts of fraud, dishonesty, misappropriation or
embezzlement, (v) violation of any
3
-
-
-
-
-
-
-
-
-
-
material Legal Requirement (as defined in Section
7.2 below), (vi) willful breach of his or her duty of loyalty or
fiduciary duties, or (vii) willful failure to comply with the
Company’s reasonable orders or directives or the
Company’s reasonable rules, regulations, policies, procedures
or practices; provided , however , that in the case
of any act or failure to act described in sub-sections (i), (iii),
(v), (vi), or (vii) above, such act or failure to act shall not
constitute Cause if, within ten (10) days after Notice of
Termination (containing a description of the behavior allegedly
constituting the "Cause") is given to the Executive by the Company,
Executive has corrected such act or failure to act, to the
reasonable satisfaction of the Board.
(d)
Good Reason . The Executive may terminate
his or her Employment during the Term of this Agreement for "Good
Reason." Good Reason shall mean the Company’s material
breach of this Agreement, a material reduction in the
Executive’s duties or authority or a requirement that
Executive relocate to an area outside of a radius of 50 miles of
Mineola, New York, which breach shall not be cured by the Company
within ten (10) days after Notice of Termination is given by the
Executive.
3.2
Date of Termination. "Date of Termination" shall mean (a)
the expiration of the Term, (b) if the Executive’s employment
is terminated due to his or her death, the date of his death, (c)
if the Executive’s employment is terminated due to
Executive’s Disability, ten (10) days after Notice of
Termination is given to the Executive, and (d) if the
Executive’s employment is otherwise terminated by the Company
or by Executive, the date upon which the for Cause or Good Reason
event occurs or such other date set forth in the Notice of
Termination. Nothing in this Section shall be deemed to diminish
the Company’s right to cause the Executive to cease
performing his duties and responsibilities as an officer and
employee of the Company at any time ("Termination Without Cause"),
or to limit either party’s right to give a Notice of
Termination at any time during the Term of this Agreement.
3.3
Notice of Termination. Any purported termination of the
Executive’s employment by the Company or by the Executive
shall be communicated by written Notice of Termination to the other
party hereto in accordance with Paragraph 8.4 of this Agreement.
For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment under the
provision so indicated.
4
4. Compensation Upon Termination .
4.1
Disability . In the event the Executive’s employment
is terminated by reason of Disability, the Executive shall be
compensated as follows: (a) all earned, but unpaid amounts of
Annual Base to which the Executive was entitled as of the Date of
Termination through and including the last date of the month
following Executive’s Disability, and (b) all unreimbursed
business expenses incurred through the Date of Termination, shall
be paid in accordance with the terms of this Agreement to the
Executive. Thereafter, the Company shall have no further
obligations to the Executive under this Agreement, except pursuant
to Section 2.5 or as otherwise required by applicable law.
4.2
Death. In the event the Executive’s employment is
terminated by reason of his or her death, the Executive’s
beneficiary or estate shall be compensated as follows: (a) all
earned, but unpaid amounts of Annual Base to which the Executive
was entitled as of the Date of Termination through and including
the last date of the month following Executive’s death,
and (b) all unreimbursed business expenses incurred through the
Date of Termination, shall be paid in accordance with the terms of
this Agreement to the Executive’s beneficiary, or, if no
beneficiary has been designated by the Executive in a written
notice prior to his or her death, to the Executive’s estate.
Thereafter, the Company shall have no further obligations to the
Executive’s beneficiary or estate under this Agreement,
except pursuant to Section 2.5 or as otherwise required by
applicable law.
4.3
Cause; Termination by Executive Without Good Reason . In the
event the Executive’s employment is terminated by the Company
for Cause or by the Executive without Good Reason, the Company
shall pay the Executive (a) all earned, but unpaid amounts of his
or her Annual Base, if any, to which the Executive was entitled as
of the Date of Termination, and (b) all unreimbursed business
expenses incurred through the Date of Termination and the Company
shall have no further obligations to the Executive under this
Agreement, except pursuant to Section 2.5 or as otherwise required
by applicable law.
4.4
|
