Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made by and between GREATBATCH INC., a Delaware
corporation, with an office at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the
"Corporation") and XXXXXX X. XXXX, residing at 0000 Xxxxxxxxx Xx., Xxxxxxxx, XX
00000 (the "Executive").
Introductory Statement. The Executive has previously served as Executive
Vice President and Chief Operating Officer of the Corporation under an offer of
employment letter dated August 9, 2004, and as President of the Corporation
since June 2005. The Corporation now desires to secure the future services of
the Executive as President and Chief Executive Officer of the Corporation and
the Executive desires to accept such employment upon the terms and conditions
contained in this Agreement. Therefore, in consideration of the mutual covenants
and agreements contained in this Agreement, the parties agree as follows:
1. Term of Employment.
1.1 Initial Term. Subject to the terms and conditions set forth in this
Agreement, the Corporation hereby agrees to continue to employ the Executive for
the period beginning on the Effective Date of this Agreement and ending on
December 31, 2009 (the "Initial Term"), or until earlier terminated as provided
herein.
1.2 Effective Date. The Effective Date of this Agreement is August 8, 2006.
1.3 Extensions. The Agreement will be automatically extended beyond the
Initial Term of the Agreement for successive renewal terms of one year each
(subject to written modifications acceptable to both parties), unless either the
Corporation or the Executive gives timely notice to the other party that the
term of the Agreement will not be so extended beyond the Initial Term or any
such renewal term. Notice under this Section, whether given by the Corporation
or the Executive, will be given in writing and must be delivered not later than
twelve months prior to the date (including extensions) the Agreement would
otherwise terminate.
2. Employment; Duties.
Subject to the formal election by the Board of Directors of the Corporation
(the "Board") in the exercise of its judgment, the Corporation does hereby
employ the Executive, and the Executive does hereby accept employment by the
Corporation, as President and Chief Executive Officer ("CEO") of the
Corporation. As an executive officer of the Corporation, the Executive will
perform his duties and discharge his responsibilities in accordance with the
by-laws of the Corporation and as the Board from time to time reasonably
directs, recognizing the nature and scope of the Executive's employment. Subject
to yearly election by the Board, it is contemplated that the Executive will
continue to be elected to the position of President and CEO of the Corporation
during the term of this Agreement.
The Executive agrees to perform his duties and discharge his
responsibilities in a faithful manner and to the best of his ability. The
Executive agrees to devote his full business time and attention to the
supervision and conduct of the business and affairs of the Corporation and to
faithfully and to the best of his ability promote the interests of the
Corporation. The Executive further agrees that he will engage in no outside
business concerns or activities, and will not accept other gainful employment,
without the Corporation's written consent. The Corporation hereby acknowledges
and consents to the Executive continuing to serve on any Boards of Directors on
which he currently serves, and on the Boards of other nonprofit or charitable
organizations, provided that the Executive agrees not to serve concurrently on
the Board of Directors of more than one publicly held company during the term of
the Agreement.
3. Compensation and Other Benefits.
3.1 Base Salary. So long as the Executive is employed by the Corporation
pursuant to this Agreement, the Corporation agrees that the Executive will
receive a base salary earned and payable in bi-weekly installments. As of the
Effective Date, the base salary is $425,000 per year.
The Compensation and Organization Committee of the Board (the "Compensation
Committee"), with the concurrence of the Board, will in good faith review the
performance and salary of the Executive on an annual basis, and will consider
appropriate increases in his salary based on individual performance, the value
of the Executive to the Corporation, pay practices for comparable performance in
the industry, and the successful achievement of agreed upon operating
objectives. The review will be made as soon as practicable after the audited
financial statements of the Corporation for the past year are available, and any
salary increase authorized by the Compensation Committee will be effective at
the time specified by the Committee.
3.2 Incentive Awards.
(a) During the term of the Executive's employment under this Agreement, the
Executive will be eligible to receive cash-based and stock-based incentive
awards under the terms of the Corporation's incentive award programs and equity
plans for executives as in effect during the term of the Agreement. Incentive
and equity-based awards for the Executive in effect as of the Effective Date are
listed in Appendix A to this Agreement.
(b) The Executive will be awarded, as an incentive in respect of his new
duties as CEO, the stock-based compensation noted on Appendix B (the "Promotion
Awards").
3.3 Other Benefits. During the term of this Agreement, to the extent
permitted by law, the Executive will be entitled to participate in any health
and medical benefit plans, any pension, profit sharing and retirement plans and
any insurance policies or programs from time to time generally offered to the
executive officers of the Corporation. These plans, policies and programs are
subject to change at the sole discretion of the Corporation. The Executive will
also receive all fringe benefits provided for the executive officers of the
Corporation that may be authorized from time to time by the Board in its sole
discretion. Benefits provided under this Section include, but are not limited
to, the following:
2
(a) Life Insurance. Throughout the term of this Agreement, the Corporation
will provide and maintain, at the Corporation's sole expense, term life
insurance with a total face value of not less than $5,000,000 on the life of the
Executive. The death beneficiary with respect to the life insurance will be the
person designated by the Executive in his sole discretion. This amount includes
(and is not in addition to) any insurance that may be provided generally to
executive officers. The Executive will be entitled, at his discretion, to
exercise any conversion rights available under the policy.
(b) Financial Planner. Every year the Corporation will provide the
Executive $3,000 per year to pay for services rendered by a financial planner
selected by the Executive in his sole discretion.
(c) Automobile. The Corporation will provide the Executive with the use of
an automobile or an auto use allowance that is commensurate with his position
and in accordance with the Corporation's policy, if any.
(d) Vacation. The Executive will continue to receive four weeks vacation
each calendar year, at such times as agreed upon by the Corporation and the
Executive and subject to the Corporation's generally applicable procedures on
award, carryover and accrual. This vacation time includes (and is not in
addition to) any vacation time that may be provided generally to executive
officers.
(e) Disability. The Executive will continue to be eligible to participate
in the executive class long term disability program currently available to
executives of the Corporation.
(f) Executive Physical Exam. The Corporation will continue to provide to
the Executive, at the Corporation's sole expense, an annual comprehensive
physical exam, as provided under the Corporation's Key Management Physical
Examination Program.
(g) Tuition Reimbursement. The Executive will be eligible for benefits
under the Corporation's Dependent College Tuition Reimbursement Policy as it was
in effect on the date on which the Corporation initiated its succession-planning
activity for the CEO position (pre-January 1, 2003).
(h) Change of Control Policy. The Executive will continue to be covered
under the Greatbatch Inc. Change of Control Agreement between the Executive and
the Corporation, dated August 10, 2004 (the "Change of Control Agreement"), as
it may be amended by agreement of the parties.
The Executive acknowledges and agrees that certain benefit plans and
perquisites of the Corporation may be changed or terminated during the term of
this Agreement. Without limiting the foregoing, this may include termination of
the perquisites identified in subsections 3.3(c) and 3.3(f) hereof; but the
perquisite identified in subsection 3.3(g) may not be terminated nor, insofar as
it applies to the Executive, changed.
3
3.4 Withholding. The Corporation will deduct or withhold from salary
payments, and from all other payments made to the Executive pursuant to this
Agreement, all amounts that may be required to be deducted or withheld under any
applicable law now in effect or that may become effective during the term of the
Agreement (including but not limited to Social Security contributions and income
tax withholdings).
4. Reimbursement for Expenses.
The Corporation will reimburse the Executive for expenses that the
Executive may from time to time reasonably incur on behalf of and at the request
of the Corporation in the performance of his responsibilities and duties under
this Agreement, provided that the Executive is expected to exercise reasonable
and prudent expense control practices that are subject to audit by a designated
representative of the Compensation Committee.
5. Death or Permanent Disability of Executive.
5.1 Permanent Disability. If the Executive becomes permanently disabled
during the term of this Agreement, the Corporation will pay to the Executive the
following compensation and benefits at the time of his termination of employment
due to disability:
(a) Salary Continuation. The Corporation will continue to pay the base
salary, at the same rate and in the same manner as in effect at the time the
Executive becomes permanently disabled, for the longer of (i) the balance of the
Initial Term of this Agreement or (ii) one year from the date that the
determination as to permanent disability is made pursuant to Section 5.2 (such
applicable period, the "5.1 Continuation Period." If the Executive dies after
becoming permanently disabled and while payments are being made under this
subsection, the remaining payments will be made to the Executive's spouse, if
surviving, or legal representatives.
(b) Fringe Benefits. All benefits provided under Section 3.3 of this
Agreement (including health insurance for the Executive and his spouse and
dependents) will continue to be provided to the Executive throughout the 5.1
Continuation Period.
(c) Incentive Awards/Stock Options/Corporation Stock. Any and all stock
options, restricted stock and other incentive and equity-based awards granted to
the Executive with respect to which he is not yet vested on the date he becomes
permanently disabled, except for awards granted under the SALT Plan (as defined
in Appendix A), will become automatically 100% vested on the date he becomes
permanently disabled, regardless of the satisfaction of any performance
criteria.
(d) Section 409A . Notwithstanding the foregoing provisions of this
section, if it is determined that any amounts or benefits provided under this
section would violate Section 409A of the Internal Revenue Code ("Code") if paid
prior to the date that is six months after the Executive's termination of
employment due to disability, then no amounts (including reimbursements for
affected benefits) will be paid prior to the date that is six months after the
Executive's "separation from service" within the meaning of Section 409A of the
Code (or, if earlier, the date of death of the Executive). Payments to which the
Executive would otherwise be entitled during the first six months following the
date of separation from service will be accumulated and paid on the day that is
six months after the date of separation from service.
4
5.2 "Permanently Disabled." For purposes of this Agreement, the Executive
will be "permanently disabled" if he is determined to be permanently disabled
for purposes of any disability insurance policy maintained by the Corporation
that covers the Executive. If the Corporation maintains no such policy, the
Executive will be "permanently disabled" if he has a disability because of which
the Executive is physically or mentally unable to substantially perform his
regular duties as President or CEO for a sufficiently long period of time such
that the business of the Corporation could be materially adversely affected. Any
question as to the existence, extent or potentiality of disability of the
Executive upon which the Executive and the Corporation cannot agree will be
determined by a qualified independent physician jointly selected by the
Executive and the Corporation (or if the Executive is unable to make such a
selection, it will be made by an adult member of his immediate family). The
determination of the physician, made in writing to the Corporation and to the
Executive, will be final and conclusive for all purposes of this Agreement. In
the event the Executive is permanently disabled, the Executive will cease to be
employed on the last day of the month in which the Executive's disability is
determined by written agreement of the Executive and the Corporation, or the
written determination of a physician, as the case may be.
5.3 Death. If the Executive dies during the term of this Agreement, the
Corporation will pay to the Executive's spouse, if surviving, or legal
representatives the following compensation and benefits:
(a) Salary Continuation. The Corporation will continue to pay to the
Executive's spouse, if surviving, or legal representatives, the base salary, at
the same rate and in the same manner as in effect at the time the Executive dies
for the longer of (i) the balance of the Initial Term of this Agreement or (ii)
one year from the Executive's date of death (such, applicable period, the "5.3
Continuation Period").
(b) Fringe Benefits. The Corporation will continue to maintain throughout
the 5.3 Continuation Period, at the Corporation's sole expense, for the
Executive's spouse, if surviving, the health insurance coverage in effect at the
time of the Executive's death.
(c) Incentive Awards/Stock Options/Corporation Stock. Any and all stock
options, restricted stock and other incentive and equity-based awards granted to
the Executive with respect to which he is not yet vested on the date he dies,
except for awards granted under the SALT Plan (as defined in Appendix A) will
become automatically 100% vested on the date of death, regardless of the
satisfaction of any performance criteria.
6. Termination of Employment.
5
6.1 Termination Without Cause. If, at any time prior to termination of this
Agreement, the Corporation terminates the Executive's employment other than for
cause (as defined in Section 6.4), the Corporation will provide the Executive
with the following payments and benefits:
(a) Salary. A lump sum payment, within 30 days of termination, in an amount
equal to the Executive's annual base salary in effect under Section 3.1 on the
date of his termination.
(b) Bonus. A bonus for the calendar year in which termination occurs in an
amount calculated as follows, payable without regard to the actual performance
of the Corporation for that year, and payable within 30 days of termination:
(1) If the termination occurs in 2006, the bonus will be equal to 80% of
the Executive's base salary in effect at the time of termination; or
(2) If the termination occurs after 2006, the bonus will be in an amount
consistent with the design of the Corporation's Short Term Incentive
Compensation Plan, or similar short term incentive program, in effect at the
time of termination.
(c) Notwithstanding subsections (a) and (b), if it is determined that any
amounts payable under subsections (a) and (b) would violate Section 409A of the
Code if paid prior to the date that is six months following the Executive's
termination of employment, then those amounts will be paid in a lump sum payment
on the day that is six months after the date of the Executive's termination.
(d) Incentive Awards/Options/Corporation Stock. Any and all stock options,
restricted stock and other incentive and equity-based awards granted to the
Executive with respect to which he is not yet vested on the date of his
termination without cause, except for awards granted under the SALT Plan (as
defined in Appendix A), will become automatically 100% vested on termination,
regardless of the satisfaction of any performance criteria.
6.2 Termination With Good Reason.
(a) Reduction in Duties/Compensation. The Corporation will not
significantly reduce the scope of the Executive's duties under the Agreement,
materially diminish the Executive's title (which would include, but not be
limited to, the Board of the Corporation failing to elect the Executive as the
President and CEO of the Corporation), significantly reduce the total potential
compensation under the Agreement, including, without limitation, fringe benefits
and payments at death, or require the Executive to relocate to a location where
the Corporation currently does not have, or is not currently discussing or
contemplating building or placing a facility (each such event a "Reduction
Event"). The parties agree that a Reduction Event shall not include a reduction
or termination of benefits (including perquisites) which applies to all
executives of the Corporation who participate in such plan or to any reduction
or termination to which the Executive agrees. The Executive at any time during
the six month period following a Reduction Event may voluntarily terminate his
employment and receive the payments and benefits described in paragraph (c)
below.
6
(b) Material Breach by the Corporation. If there is a material breach by
the Corporation of this Agreement that the Corporation fails to cure within 30
days after its receipt of written notice thereof, the Executive at anytime
during the six month period following the end of such 30-day period may
voluntarily terminate his employment and receive the payments and benefits
described in paragraph (c) below.
(c) Benefits. If the Executive terminates his employment under this
Section, the Corporation will provide the Executive with the following payments
and benefits:
(1) Salary. A lump sum payment, within 30 days of termination, in an amount
equal to the Executive's annual base salary in effect under Section 3.1 on the
date of his termination.
(2) Bonus. A bonus for the calendar year in which termination occurs in an
amount calculated as follows, payable without regard to the actual performance
of the Corporation for that year, and payable within 30 days of termination:
(A) If the termination occurs in 2006, the bonus will be equal to 80% of
the Executive's base salary in effect at the time of termination; or
(B) If the termination occurs after 2006, the bonus will be in an amount
consistent with the design of the Corporation's Short Term Incentive
Compensation Plan, or similar short term incentive program, in effect at the
time of termination.
(3) Notwithstanding subsections (c)(1) and (c)(2), if it is determined that
any amounts payable under this subsection would violate Section 409A of the Code
if paid prior to the date that is six months following the Executive's
termination of employment, then those amounts will be paid in a lump sum payment
on the day that is six months after the date of the Executive's termination.
(4) Incentive Awards/Options/Corporation Stock. Any and all stock options,
restricted stock and other incentive and equity-based awards granted to the
Executive with respect to which he is not yet vested on the date of a Reduction
Event will become automatically 100% vested on the date of the Reduction Event,
except for awards granted under the SALT Plan (as defined in Appendix A),
regardless of the satisfaction of any performance criteria.
6.3 Change in Control. If the Executive's employment is terminated
following or within six months prior to a Change in Control, as defined under
the Change of Control Agreement, the Corporation will provide the Executive with
the payments and benefits to which he is entitled under the terms of the Change
of Control Agreement. In that regard, however, the parties agree that the intent
is that (a) the Executive will be entitled to receive, in respect of an event
(for example, but not limited to, any termination without cause) covered by both
the Change of Control Agreement and this Agreement, the payment or payments that
provide for the greatest amounts and for the longest period of time possible;
and (b) that there is to be no duplication of payment.
7
6.4 Termination for Cause.
(a) In General. The Corporation may terminate the Executive's employment in
the event the Executive does or causes to be done any act that constitutes
"cause" for termination. For purposes of this Agreement, "cause" means a
material breach by the Executive of this Agreement or any other written
agreement between the Corporation and the Executive, gross negligence or willful
misconduct in the performance of his duties, dishonesty to the Corporation, or
the commission of a felony that results in a conviction in a court of law.
(b) Obligations. Should the Executive's employment be terminated by the
Corporation for cause, (1) the Corporation will pay the Executive his base
salary and other compensation under Article 3 of this Agreement that has accrued
as of the date of the termination, and (2) any and all stock options, restricted
stock, and other incentive and equity-based awards granted to the Executive in
which he is not yet vested on the date of such termination will be forfeited and
canceled. Notwithstanding the previous sentence, all outstanding stock options
awarded under the 1998 stock option plan and the 2005 Stock Incentive Plan,
whether vested or unvested, will expire on the date of the Executive's
termination for cause, as defined in the plan.
6.5 Termination Without Good Reason.
(a) In General. The Executive is entitled to terminate his employment
without good reason at any time.
(b) Obligations. If the Executive's employment terminates under this
Section, (1) no additional compensation after the date of termination will be
payable by the Corporation to the Executive, and (2) any and all stock options,
restricted stock and other incentive and equity-based awards granted to the
Executive in which the Executive is not vested on the date of termination will
be forfeited and canceled.
6.6 Termination by Notification of Corporation.
(a) In General. The Corporation may provide the Executive with notification
pursuant to Section 1.3 that the Agreement will not be renewed beyond the
Initial Term or any applicable renewal term.
(b) Obligations. If the Executive's employment terminates under this
Section 6.6 as a result of such non-renewal, the Corporation will provide the
Executive with payments and benefits in accordance with the terms of Section
6.1.
6.7 Options/Corporation Stock.
(a) Exercise of Options. Except for those options, if any, that are
cancelled upon termination of the Executive's employment, the Executive will
continue to have the right to exercise all unexercised options, including those
options vested in connection with the termination, for a period of twelve months
commencing on the date of the Executive's termination. Notwithstanding the
foregoing, if it is determined that the extension of the right to exercise an
option for a given period of time would violate Section 409A of the Code, the
exercise period of the affected options will be extended only for the maximum
period that would not be deemed an extension of a stock right under Section 409A
of the Code and related guidance.
8
(b) Inconsistent Terms. To the extent that the terms of this Agreement are
specifically inconsistent with any provisions in any shareholder or stock option
agreement between the Executive and the Corporation, the terms of this Agreement
supersede the terms of any such shareholder or stock option agreement.
7. Confidentiality.
The Executive must not, except as required in the performance of his duties
under this Agreement, divulge to any person, at any time during or after the
term of his employment with the Corporation, any trade secret of the
Corporation, any privileged or confidential information gained as a result of
his employment with the Corporation, or any document, writing or other tangible
item containing or relating to any such trade secret or privileged or
confidential information.
8. Non-Competition
8.1 During the term of the Agreement and for a period of 24 months after
the later of (a) the termination of the Agreement or (b) the end of the last pay
period in respect of which the Executive receives any compensation or other
annual bonus pursuant to the Agreement, the Executive agrees that he will not
directly or indirectly, for his own account or as agent, employee, officer,
director, trustee, consultant or shareholder of any person (except for a one
percent interest or less in any publicly traded corporation) or a member of any
firm or otherwise, anywhere in the sales territory of the Corporation engage or
attempt to engage in any business activity that is the same as, substantially
similar to, or directly competitive with the business of the Corporation as
conducted by it during the term of this Agreement, or substantially similar to
or directly competitive with the related business activities of the ten largest
customers of the Corporation, ranked by gross sales, at the time of the
termination of the Agreement.
8.2 During the term of this Agreement and for a period of one year from the
date of termination of this Agreement for any reason, the Executive agrees that
he will not, directly or indirectly, for his own account or as agent, employee,
officer, director, trustee, consultant or shareholder of any person, or member
of any firm or otherwise, employ or solicit the employment of any person
employed by the Corporation within 24 months prior to the date of the
Executive's termination.
8.3 If the Executive is terminated by the Corporation without cause, the
provisions of this Article 8 will be inapplicable.
9. Rights to Discoveries.
9
The Executive agrees that all ideas, inventions (whether patentable or
unpatentable), trademarks and other developments or improvements conceived,
developed or acquired by the Executive, whether or not during working hours, at
the premises of the Corporation or elsewhere, alone or with others, that are
within the scope of the Corporation's business operations or that relate to any
work or projects of the Corporation, are the sole and exclusive property of the
Corporation. The Executive agrees to disclose promptly and fully to the
Corporation all such ideas, inventions, trademarks or other developments and, at
the request of the Corporation, the Executive will submit to the Corporation a
full written report thereof regardless of whether the request for a written
report is made after the termination of this Agreement. The Executive agrees
that during the term of this Agreement and thereafter, upon the request of the
Corporation and at its expense, he will execute and deliver any and all
applications, assignments and other instruments that the Corporation deems
necessary or advisable to transfer to and vest in the Corporation the
Executive's entire right, title and interest in and to all such ideas,
inventions, trademarks or other developments and to permit and enable the
Corporation to apply for and obtain patents or copyright or trademark
registrations for any such patentable or copyrightable or trademarkable ideas,
inventions, trademarks and other developments, throughout the world. To the
extent applicable law provides that any such idea, invention, trademark or other
development belongs to the Executive rather than the Corporation, the Executive
hereby grants to the Corporation a royalty-free, non-exclusive, worldwide
perpetual license to use the idea, invention, trademark or other development for
no added consideration other than that given in connection with this Agreement.
10. Documents.
In addition to the obligations under Articles 7, 8 and 9, the Executive
will execute any documents relating to the subject of those Articles as required
generally by the Corporation of its executive officers and such documents
already executed or executed after the Effective Date will thereby become part
of this Agreement. In the case of any inconsistency between such documents and
this Agreement, the broader provisions will prevail.
11. Notices.
All notices and other communications given pursuant to this Agreement must
be in writing and will be deemed given only when (a) delivered by hand, (b)
transmitted by telex, telecopier or other form of electronic transmission
(provided that a copy is sent at approximately the same time by first class
mail), or (c) received by the addressee, if sent by registered or certified
mail, return receipt requested, or by Express Mail, Federal Express or other
overnight delivery service, to the appropriate party at the address given below
for such party (or to such other address designated by the party in writing and
delivered to the other party pursuant to this Article 11.
If to the Corporation:
Corporate Secretary
Greatbatch Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
10
With a copy to:
Xxxxxxx Xxxx LLP
Attention: Xxxxxx X. Xxxxxxx, Xx.
Xxx X&X Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier: 000-000-0000
If to the Executive:
Xxxxxx X. Xxxx
0000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
With a copy to:
Kavinoky & Xxxx
Attention: Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier: 000-000-0000
12. Equitable Relief.
The Executive acknowledges that the Corporation will suffer damages
incapable of ascertainment in the event that any of the provisions of Article 7,
8, 9 or 10 of this Agreement are breached and that the Corporation will be
irreparably damaged in the event that the provisions of Articles 7, 8, 9 and 10
are not enforced. Therefore, should any dispute arise with respect to the breach
or threatened breach of Articles 7, 8, 9 or 10 of this Agreement, the Executive
agrees and consents that in addition to any and all other remedies available to
the Corporation, an injunction or restraining order or other equitable relief
may be issued or ordered by a court of competent jurisdiction restraining any
breach or threatened breach of Articles 7, 8, 9 or 10 of this Agreement. The
Executive agrees not to urge in any such action that an adequate remedy exists
at law. The Executive consents to jurisdiction in New York and venue in Erie
County for purposes of all claims arising under this Agreement.
13. Term of Agreement.
For the limited purpose of making payments under this Agreement, and not,
for example, for purposes of extending the periods referenced in Article 8, this
Agreement will not terminate until all payments under the Agreement have been
made.
14. Miscellaneous.
This Agreement is governed by the internal domestic laws of the State of
New York without reference to conflict of laws principles. This Agreement is
binding upon and inures to the benefit of the legal representatives, successors
and assigns of the parties hereto (provided, however, that the Executive does
not have the right to assign this Agreement in view of its personal nature). All
headings and subheadings are for convenience only and are not of substantive
effect. Except as otherwise specifically provided for herein, this Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior negotiations, understandings and writings
(or any part thereof) whether oral or written between the parties relating to
the subject matter hereof. Except as specifically referenced herein, no
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party that are not
expressly set forth in this Agreement. No provision of this Agreement may be
waived, modified or amended, orally or by any course of conduct, unless such
waiver, modification or amendment is set forth in a written agreement duly
executed by both of the parties. If any article, section, portion, subsection or
subportion of this Agreement is determined to be unenforceable or invalid, then
such article, section, portion, subsection or subportion will be modified in the
letter and spirit of this Agreement to the extent permitted by applicable law so
as to be rendered valid, and any such determination will not affect the
remainder of this Agreement, which is and will remain binding and effective as
against all parties hereto.
11
15. Section 409A Compliance. Notwithstanding any other provision in this
Agreement, to the extent that (i) the Executive is a "specified employee" with
the meaning of Section 409A(a)(2)(B)(i) of the Code, (ii) any amounts payable
under this Agreement represent amounts that are subject to Section 409A of the
Code, and (iii) such amounts are payable on the Executive's "separation from
service," within the meaning of Section 409A of the Code, then such amounts will
not be payable to the Executive before the date that is six months after the
Executive's separation from service. Further, if the time or form of payment of
any amounts under this Agreement would not be in compliance with Section 409A of
the Code, then payment of those amounts will be made at such time and in such a
manner that the payment will be in compliance with Section 409A of the Code. If
the time or form of payment cannot be modified in such a way as to be in
compliance with Section 409A of the Code, then the payment will be made as
otherwise provided in this Agreement, disregarding this Section.
[THE SIGNATURE PAGE FOLLOWS}
12
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date set forth below.
Dated: August 8, 2006 /s/ Xxxxxx X. Xxxx
--------------------------------------------
Xxxxxx X. Xxxx
GREATBATCH INC.
Dated: August 8, 2006 /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx, Chairman
STATE OF NEW YORK )
: ss.
COUNTY OF ERIE )
On this 8th day of August, 2006, before me personally came Xxxxxx X. Xxxx,
to me known and known to me to be the same person described in and who executed
the foregoing instrument, and he duly acknowledged to me that he executed the
same.
/s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx, Notary
STATE OF NEW YORK )
: ss.
COUNTY OF ERIE )
On this 8th day of August, 2006 before me personally came Xxxxxx X.
Xxxxxxx, to me personally known, who, being by me duly sworn, did depose and say
that he resides at No. 0000 Xxxxxxx Xx. in the Village of Williamsville, State
of New York; that he is the Chairman of GREATBATCH INC., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by order of the Board of Directors of said corporation.
13
APPENDIX A
Xxxxxx X. Xxxx Employment Agreement
-----------------------------------
Greatbatch Inc. Incentive and Equity-Based Awards
-------------------------------------------------
In Effect as of August 8, 2006
------------------------------
I. Award Levels - Current Program
2006 STIC Plan @80% level
2006 SALT Plan @100% level (the "SALT Plan")
2007 LTIP Plan to be at 125% level
II. Commensurate levels thereafter for award programs
00
XXXXXXXX X
The Promotion Awards
--------------------
I. Restricted Stock. The Executive will receive a grant of 50,000
restricted shares of Common Stock subject to the vesting and other conditions
set forth in Part III below.
II. Options. The Executive will be granted a non-qualified stock option to
acquire 25,000 shares of Common Stock, which option shall be deemed granted as
of the date this Agreement is approved by the Board and with an option exercise
price equal to the closing price for Greatbatch Common Stock on such date
(August 8, 2006), and otherwise subject to the vesting and other conditions set
forth in Part III below.
III. Conditions. The restricted stock and options will be issued or
granted, as applicable, under the Corporation's 2005 Stock Incentive Plan and
subject to all of the term and conditions thereof. The restricted shares and
options shall each vest as follows:
---------------------------------------- ---------------------------------
Percentage Vesting Period
of Shares/Options Vesting
---------------------------------------- ---------------------------------
0% Years 2006 and 2007
---------------------------------------- ---------------------------------
25% December 31, 2008
---------------------------------------- ---------------------------------
25% December 31, 2009
---------------------------------------- ---------------------------------
50% December 31, 2010
---------------------------------------- ---------------------------------
7/24/06 Version
15
