Attached files
| file | filename |
|---|---|
| 8-K - Xtant Medical Holdings, Inc. | v189893_8k.htm |
| EX-99.2 - Xtant Medical Holdings, Inc. | v189893_ex99-2.htm |
| EX-10.4 - Xtant Medical Holdings, Inc. | v189893_ex10-4.htm |
| EX-10.2 - Xtant Medical Holdings, Inc. | v189893_ex10-2.htm |
| EX-21.1 - Xtant Medical Holdings, Inc. | v189893_ex21-1.htm |
| EX-3.2(A) - Xtant Medical Holdings, Inc. | v189893_ex3-2a.htm |
| EX-10.7 - Xtant Medical Holdings, Inc. | v189893_ex10-7.htm |
| EX-10.6 - Xtant Medical Holdings, Inc. | v189893_ex10-6.htm |
| EX-99.1 - Xtant Medical Holdings, Inc. | v189893_ex99-1.htm |
| EX-10.5 - Xtant Medical Holdings, Inc. | v189893_ex10-5.htm |
| EX-10.9 - Xtant Medical Holdings, Inc. | v189893_ex10-9.htm |
| EX-99.3 - Xtant Medical Holdings, Inc. | v189893_ex99-3.htm |
| EX-10.3 - Xtant Medical Holdings, Inc. | v189893_ex10-3.htm |
| EX-10.10 - Xtant Medical Holdings, Inc. | v189893_ex10-10.htm |
EXHIBIT
10.8
EMPLOYMENT
AGREEMENT
This
agreement made and entered into this 3rd day of June, 2010 by and between
Bacterin, Inc., of Belgrade, MT, hereinafter referred to as “employer”, and John
P. Gandolfo, of Wayne, New Jersey, hereinafter refereed to as
“employee”.
The
parties recite that:
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A.
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Employer
is engaged in the coating of medical devices and processing biologics and
maintains business premises at 600 and 664 Cruiser Lane, Belgrade, MT
59714.
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B.
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Employee
is willing to be employed by employer, and employer is willing to employ
employee, on the terms and conditions hereinafter set
forth.
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For the
reasons set forth above, and in consideration of the mutual covenants and
promises of the parties hereto, employer and employee covenant and agree as
follows:
AGREEMENT
TO EMPLOY AND BE EMPLOYED
Employer
hereby employs employee as the Chief Financial Officer at the above-mentioned
premises, and the employee hereby accepts and agrees to such
employment.
DESCRIPTION
OF EMPLOYEE’S DUTIES
Subject
to the supervision and pursuant to the orders, advice, and direction of
employer, employee shall perform such duties as are customarily performed by one
holding such position in other businesses or enterprises of the same or similar
nature as that engaged in by the employer. Employee shall additionally
render such other and unrelated services and duties as may be assigned to him or
her from time to time by employer.
MANNER
OF PERFORMANCE OF EMPLOYEE’S DUTIES
Employee
shall at all times faithfully, industriously, and to the best of his or her
ability, experience, and talent, perform all duties that may be require of and
from him or her pursuant to the express and implicit terms hereof, to the
reasonable satisfaction of employer. Such duties shall be rendered in the
New York Metropolitan area and at such other place or places as employer shall
in good faith require or as the interests, needs, business, and opportunities of
employer shall require or make advisable.
DURATION
OF EMPLOYMENT
Full time
employment shall commence on July 6, 2010; provided, however,
that employee shall be available to Company on a part-time basis beginning June
4, 2010 and July 5, 2010 and shall be compensated for his time on an hourly
basis, at an hourly rate of $140 per hour. Voluntary termination is
determined by the employer and/or employee, but is subject, however, to
termination procedures as provided in Section 8 and 9 hereof and in the Employee
Handbook.
COMPENSATION;
REIMBURSEMENT
Employer
shall pay employee and employee agrees to accept from employer, in full payment
for employee’s services hereunder, base compensation of Two Hundred Ninety
Thousand Dollars ($290,000) per year, payable bi-weekly. Employee may also
receive a bonus in the amount of 30% of his annual base compensation, if the
following criteria are met: half the bonus amount ($43,500) shall be
payable if Employer’s annual revenue goal is met or exceeded and half the bonus
amount ($43,500) shall be payable if Employer’s annual earnings goal is met or
exceeded.
1
Employee
shall also receive a grant of stock options subject to the Bacterin
International, Inc. 2004 Stock Incentive Plan as outlined in that
certain Stock Option Agreement dated June 3, 2010, attached hereto as Exhibit A and
incorporated herein by this reference.
If
employee’s employment is terminated by the Company without “Cause,” Employee
shall be entitled to receive his Base Salary for a period of six months, if the
Employee has delivered to the Company a complete release of any claims against
the Company and its directors, officers, Subsidiaries and Affiliates ( other
than the severance payments described in this Section) in form and substance
reasonably satisfactory to the Company and if Employee has not breached any
section of this employment agreement. The severance payments payable
to the Employee pursuant to this paragraph will be paid biweekly through
automatic deposits; provided that the initial payment of any severance hereunder
shall begin on the eighth day after the Employee has signed the aforementioned
release. For purposes of this Agreement, “Cause” shall mean (i) the commission
of a felony or other crime involving moral turpitude or the commission of any
other act or omission involving theft, dishonesty, disloyalty or fraud with
respect to the Company or any of their customers or suppliers, (ii) reporting to
work under the influence of alcohol or illegal drugs, the use of illegal drugs
(whether or not at the workplace) or other conduct causing the Company or any of
its Subsidiaries substantial public disgrace or disrepute or economic harm,
(iii) substantial and repeated failure to perform duties as reasonably directed
by the Company which is not cured to
the Company’s reasonable satisfaction within 30 days after written notice
thereof to Employee, to the extent that such breach is capable of being cured,
(iv) breach of fiduciary duty, gross negligence or willful misconduct with
respect to the Company or (v) any other material breach of this Agreement which
is not cured to the Company’s reasonable satisfaction within 15 days after
written notice thereof to Employee, to the extent that such breach is capable of
being cured.
If
Employee’s employment with the company is terminated by the Company in
connection with a “Change of “Control” Employee shall be eligible to receive 12
months’ salary as severance, if the Employee has delivered to the Company a
complete release of any claims against the Company and its directors, officers,
Subsidiaries and Affiliates ( other than the severance payments described in
this Section) in form and substance reasonably satisfactory to the Company and
if Employee has not breached any section of this employment
agreement. The severance payments payable to the Employee pursuant to
this paragraph will be paid biweekly through automatic deposits; provided that
the initial payment of any severance hereunder shall begin on the eighth day
after the Employee has signed the aforementioned release. A “Change
of Control” shall consist of either Guy Cook no longer serving as the Chief
Executive Officer or a sale of all or substantially all of the assets of the
Company.
INTELLECTUAL
PROPERTY
The
Company will be entitled to and will own all the results and proceeds of the
Employee's services under this Agreement, including, without limitation, all
rights throughout the world to any copyright, patent, trademark or other right
and to all ideas, inventions, products, programs, procedures, formats and other
materials of any kind created or developed or worked on by the Employee during
his/her employment by the Company, and one year after termination, that pertains
to Company business; the same shall be the sole and exclusive property of the
Company; and the Employee will not have any right, title or interest of any
nature or kind therein. Without limiting the foregoing, it will be presumed that
any copyright, patent, trademark or other right and any idea, invention,
product, program, procedure, format or material created, developed or worked on
by the Employee at any time during the term of her employment will be a result
or proceed of the Employee's services under this Agreement. The Employee will
take such action and execute such documents as the Company may request to
warrant and confirm the Company's title to and ownership of all such results and
proceeds and to transfer and assign to the Company any rights which the Employee
may have therein.
2
EMPLOYEE’S
LOYALTY TO EMPLOYER’S INTERESTS
Employee
shall devote all of his or her time, attention, knowledge, and skill solely and
exclusively to the business and interests of employer, and employer shall be
entitled to all benefits, emoluments, profits, or other issues arising from or
incident to any and all work, services, and advice of employee. Employee
expressly agrees that during the term hereof he or she will not be interested,
directly or indirectly, in any form, fashion, or manner, as partner, officer,
director, stockholder, advisor, employee, or in any form or capacity, in any
other business similar to employer’s business or any allied trade, except that
nothing herein contained shall be deemed to prevent or limit the right of
employee to invest any of his or her surplus funds in the capital stock or other
securities of any corporation whose stock or securities are publicly owned or
are regularly traded on any public exchange, nor shall anything herein contained
by deemed to prevent employee from investing or limit employee’s right to invest
his or her surplus funds in real estate.
NONDISCLOSURE
OF INFORMATION CONCERNING BUSINESS
Employee
will not at any time, in any fashion, form, or manner, either directly or
indirectly divulge, disclose, or communicate to any person, firm, or corporation
in any manner whatsoever any information of any kind, nature, or description
concerning any matters affecting or relating to the business of employer,
including, without limitation, the names of any of it’s customers, the prices it
obtains or has obtained, or at which it sells or has sold its products, or any
other information concerning the business of employer, its manner of operation,
or its plans, processes, or other date of any kind, nature, or description
without regard to whether any or all of the foregoing matters would be deemed
confidential, material, or important. The parties hereby stipulate that,
as between them, the foregoing matters are important, material, and
confidential, and gravely affect the effective and successful conduct of the
business of employer, and its good will, and that any breach of the terms of
this section is a material breach of this agreement.
OPTION
TO TERMINATE ON PERMANENT DISABILITY OF EMPLOYEE
Notwithstanding
anything in this agreement to the contrary, employer is hereby given the option
to terminate this agreement in the event that during the term hereof employee
shall become permanently disabled, as the term “permanently disabled” is
hereinafter fixed and defined. Such option shall be exercised by employer
giving notice to employee by registered mail, addressed to him or her in care of
employer at the above stated address, or at such other address as employee shall
designate in writing, of its intention to terminate this agreement on the last
day of the month during which such notice is mailed.
On the
giving of such notice this agreement and the term hereof shall cease and come to
an end on the last day of the month in which the notice is mailed, with the same
force and effect as if such last day of the month were the date originally set
forth as the termination date. For purposes of this agreement, employee
shall be deemed to have become permanently disabled if, during any year of the
term hereof, because of ill health, physical or mental disability, or for other
causes beyond his or her control, he or she shall have been continuously unable
or unwilling or have failed to perform his or her duties hereunder for thirty
(30) consecutive days, or if, during any year of the term hereof, he or she
shall have been unable or unwilling or have failed to perform his or her duties
for a total period of thirty (30) days, whether consecutive or not. For
the purposes hereof, the term “any year of the term hereof” is defined to mean
any period of 12 calendar months commencing on the first day of January and
terminating on the last day of December of the following year during the term
hereof.
DISCONTINUANCE
OF BUSINESS AS TERMINATION OF EMPLOYMENT
Anything
herein contained to the contrary notwithstanding, in the event that employer
shall discontinue operations at the premises mentioned above, then this
agreement shall cease and terminate as of the last day of the month in which
operations cease with the same force and effect as if such last day of the month
were originally set forth as the termination date hereof..
3
EMPLOYEE’S
COMMITMENTS BINDING ON EMPLOYER ONLY ON WRITTEN CONSENT
Employee
shall not have the right to make any contracts or other commitments for or on
behalf of employer without the written consent of the employer.
CONTRACT
TERMS TO BE EXCLUSIVE
This
written agreement contains the sole and entire agreement between the parties,
and supersedes any and all other agreements between them. The parties
acknowledge and agree that neither of them has made any representation with
respect to the subject matter of this agreement or any representations inducing
the execution and delivery hereof except such representations as are
specifically set forth herein, and each party acknowledges that he, she or it
has relied on his, her or its own judgment in entering into the agreement.
The parties further acknowledge that any statements or representations that may
have heretofore been made by either of them to the other are void and of no
effect and that neither of them has relied thereon on connection with his, her
or its dealings with the other.
WAIVER
OR MODIFICATION INEFFECTIVE UNLESS IN WRITING
No waiver
or modification of this agreement or of its covenant, condition, or limitation
herein contained shall be valid unless in writing and duly executed by the party
to be charged therewith. Furthermore, no evidence of any waiver or
modification shall be offered or received in evidence in any proceeding,
arbitration, or litigation between the parties arising out of or affecting this
agreement, or the rights or obligations of any party hereunder, unless such
waiver or modification is in writing, duly executed as aforesaid. The
provisions of this paragraph may not be waived except as herein set
forth.
CONTRACT
GOVERNED BY LAW
This
agreement and performance hereunder and all suits and special proceedings
hereunder shall be construed in accordance with the laws of the State of
Montana.
BINDING
EFFECT OF AGREEMENT
This
agreement shall be binding on and inure to the benefit of the respective parties
and their respective heirs, legal representatives, successors, and
assigns.
Executed
on the date first above written.
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/s/ John Gandolfo
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/s/ Guy Cook
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“Employee”
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“Employer”
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Additional
Benefits as outlined in the employee manual:
4
Exhibit
A
Stock Option Grant
Agreement
5