EMPLOYMENT AND SEVERANCE AGREEMENT
Exhibit (e)(7)
EMPLOYMENT AND SEVERANCE AGREEMENT
This Employment and Severance Agreement (this “Agreement”) is made on February 19, 2008, to be
effective on the Acceptance Date (as defined in the Agreement and Plan of Merger, dated as of the
date hereof, by and among Phoenix Acquisition Corp., MEDRAD, Inc. (“Medrad”) and the Company (the
“Agreement and Plan of Merger”)) (the “Effective Date”), between Possis Medical, Inc., a Minnesota
corporation, (the “Company”), and Xxxxx XxXxxxxx, an individual residing in the state of Georgia
(the “Employee”).
PREAMBLE
The Company currently employs the Employee as its Executive Vice President, Worldwide Sales &
Marketing. The Company considers it essential to its best interests to xxxxxx the continued
employment of key executive management personnel in light of a proposed acquisition of
substantially all of the Company’s capital stock.
Effective as of September 15, 1999, the Company created a change in control termination pay
plan for the benefit of certain of its employees in the event of change of control (as amended, the
“Change of Control Plan”), and the Employee is a participant in such plan.
The Company and the Employee wish to provide for certain terms of employment between the
Company following the consummation of the proposed transaction and in consideration for the rights
and benefits provided to the Employee under this Agreement, the Employee is willing to forgo
certain rights and benefits provided to the Employee under the Change of Control Plan.
NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, the
Company and the Employee, intending to be legally bound, do hereby agree as follows:
AGREEMENT
1. Employment. Effective on the Effective Date, the Company hereby employs the
Employee as an Executive Vice President, Worldwide Sales & Marketing, and the Employee hereby
accepts such employment and agrees to perform all duties and responsibilities as are set forth in
the job description attached hereto as Exhibit A and as may be assigned to him from time to
time by the Chief Executive Officer of the Company. The Employee shall devote his full time, best
efforts, knowledge, and experience in discharging his duties under this Agreement and shall act in
conformity with and be bound by the written and oral policies of the Company and within the limits,
budgets, business plans, and instructions established by the Company’s Board of Directors.
2. Compensation.
(a) Salary. Commencing on the Effective Date, the Company shall pay the Employee a
salary at an annual rate of Two Hundred Four Thousand Dollars ($204,000.00) (the
“Base Salary”), subject to annual merit increases in accordance with the Company’s current annual
merit review process, or consistent with MEDRAD’s annual merit review process for its executives,
payable in accordance with the Company’s standard payroll schedule and policies, as in effect from
time to time. The Company shall withhold from all payments that it makes pursuant to this
Agreement as it determines to be required by applicable law.
(b) Additional Benefits.
(i) Welfare Benefits. The Employee shall be entitled to participate in all insurance
and benefit plans available on a general basis to all other employees of the Company; provided,
however, that the Company reserves the right, from time to time, to amend in any respect and to
discontinue any such benefit plan.
(ii) Vacation Days. The Employee shall be entitled to the number of paid holidays and
paid vacation days in accordance with the Company’s existing holiday and vacation policy.
(iii) Reimbursement of Expenses. During the term of the Employee’s employment
hereunder, the Company shall reimburse the Employee for all reasonable out-of-pocket expenses
incurred by the Employee in the lawful and ordinary course of the Company’s business and reported
to the Company in accordance with its accounting procedures.
(iv) Auto. During the term of Employee’s employment hereunder, the Company will
continue to provide Employee automobile benefits consistent with the Company’s existing policy, or
a comparable benefit through participation in Medrad’s automobile lease or allowance programs
available to its executives.
(v) Tax Preparation. For a period of one (1) year from the Effective Date the Company
will continue to provide Employee tax preparation benefits consistent with the Company’s existing
policy, and for the remainder of the term of Employee’s employment hereunder, Medrad shall provide
the Employee participation in financial counseling and tax preparation programs available to its
executives.
(vi) Health Club Membership. During the term of Employee’s employment hereunder, the
Company will continue to provide Employee health club membership benefits consistent with the
Company’s existing policy.
(vii) Deferred Compensation. During the term of Employee’s employment hereunder, the
Company will continue to either: (a) maintain the Company’s existing deferred compensation plan and
Employee’s participation and annual contribution level therein; or (b) if the Company is unable to
maintain that plan, then Employee will be added to Medrad’s deferred compensation plan at a level
consistent with how similarly situated Medrad executives participate, and provided participation in
Medrad’s gainshare and 401(k) match programs consistent with Medrad’s policy for similarly situated
executives.
(c) Incentive Compensation.
(i) For so long as the Employee is serving as Executive Vice President, Worldwide Sales &
Marketing, the Employee shall be entitled to receive as incentive compensation the following:
(A) Except as provided in Section 2(c)(ii) below, a short-term incentive bonus in the amount
of Two Hundred Thousand Dollars ($200,000.00), or such other amount as may be determined by the
Company, (the “Annual Bonus”) payable upon the achievement of such reasonable post-merger objective
performance targets as may be established by the Company consistent with similar performance
targets established by Medrad for its executives and payable within 30 business days after the
relevant financial information becomes available but no later than 75 days following December 31st
of the calendar year for which the Annual Bonus is payable; provided however that Employee shall
receive a portion of such Annual Bonus in a manner consistent with the Company’s existing practice
of providing Employee twelve monthly payments coinciding with the Company’s ordinary monthly
payroll, which monthly payments individually are targeted at Eight Thousand dollars ($8,000.00) per
month, and which amount is adjusted up or down each month based upon actual sales results compared
to target, with the total of such monthly payments subject to an annual cap of Ninety-Six Thousand
Dollars ($96,000.00).
(B) A long-term incentive (the “Long-Term Incentive”) payable upon the achievement of such
reasonable post-merger objective performance targets as may be established by the Company
consistent with similar performance targets established by Medrad for its executives, typically in
the range of 15-30% of base salary, and payable within 30 business days after the relevant
financial information becomes available but no later than 75 days following December 31st of the
calendar year for which the Long-Term Incentive is payable (presently three years following date of
grant if conditions met). Employee will be made a participant in the Long Term Incentive plan
effective back to January 1, 2008, and receive a Long-Term Incentive grant in an amount consistent
with the long-term bonus opportunity offered to similarly situated managers of MEDRAD, Inc.
(ii) For the calendar year in which the Effective Date falls, the Annual Bonus shall consist
of two amounts: (i) in recognition of the achievement of in excess of targeted performance for the
portion of the Company’s fiscal year that occurs prior to the Effective Date, the full Annual Bonus
amount of $200,000 shall be payable on or before August 31, 2008, if Employee remains employed on
such date, regardless of performance of the Company after the Effective Date, and (ii) a prorated
amount of Annual Bonus of $83,333 shall be payable upon the achievement of certain targets
established by the Company for the period beginning on August 1, 2008 and ending on December 31,
2008, payable within 30 business days after the relevant financial information becomes available
but no later than 75 days following December 31, 2008. The foregoing bifurcation of the Annual
Bonus shall not apply to any other calendar year other than the calendar year in which the
Effective Date falls.
-2-
(d) Severance Payments.
(i) Change in Control Severance. In the event that Employee’s employment is terminated
by the Company without Cause prior to the second anniversary of the Effective Date (a “CIC
Termination”), the Company shall pay the Employee Six Hundred Seventy Five Thousand Eight Hundred
Sixty Dollars ($675,860.00). Such amount shall be paid in equal periodic payments in accordance
with the Company’s normal payroll practices and the Employee’s normal payroll, beginning within 60
days after the Employee’s CIC Termination, and only after the Employee has executed a general
release in favor of the Company, in form and substance satisfactory to the Company and its counsel.
(ii) Change in Control Second Anniversary. In the event that the Employee is employed
by the Company on the second anniversary of the Effective Date, the Company shall pay the Employee
$100,000. Such amount shall be paid in one single lump sum payment, minus applicable withholdings,
and shall be paid by the Company within 60 days following the second anniversary of the Effective
Date.
(iii) If the Employee becomes entitled to severance payments under Section 2(d)(i), the
Employee shall also be entitled to participate in the Company’s welfare benefit plans available to
the Employee immediately prior to the Employee’s termination for a period of twenty-four (24)
months following the effective date of the Employee’s termination. Notwithstanding the foregoing,
the foregoing health insurance benefits to be provided shall be provided pursuant to Section 4980B
of the Code (“COBRA”), except that the Company will continue to pay the employer portion of the
premiums for such coverage, until the end of the period of time provided under COBRA, and
thereafter the Company’s obligation to provide health insurance benefits shall be limited to the
obligation to contribute to the purchase of a health insurance policy selected and obtained by the
Employee, by payment to the Employee of an amount up to but not exceeding the Company’s cost of
providing coverage under COBRA at the time the COBRA period expired (not including any portion of
such cost contributed by the Employee). If the Employee obtains full-time employment during such
24-month period and as a result participates in welfare benefits offered by such employer, the
provision of such benefits by the Company hereunder shall be discontinued and the Employee shall
have no further right or entitlement thereto.
(e) Waiver. The Company acknowledges that, by virtue of the acquisition by a
subsidiary of Medrad of more than 50% of the outstanding shares of the Company as of the Effective
Date, a Change of Control shall have occurred as of such Effective Date and Employee shall,
notwithstanding any other provision of this Agreement, be entitled to the payment of the Cash Bonus
required by Section 4.3 of the Change of Control Plan. The payments described in Section 2(d)
supersede any agreement or arrangement between the Employee and the Company regarding separation or
severance pay, and are in place of, not in addition to, any severance or termination payments
payable under Section 4.2 of the Change of Control Plan. Accordingly, the Employee irrevocably
waives and releases any and all payments, rights and benefits he is entitled to receive under the
Change of Control Plan, except for any payments which the Employee would be entitled to receive
under Section 4.3 of the Change of Control Plan, as described in the first sentence of this Section
2(e). If the Employee receives, for any reason, any
-3-
payment or benefit under the Change of Control Plan other than under Section 4.3, the payments in
this section will be offset and reduced so that in no event will the Employee receive severance pay
and benefits from the Company in excess of the payments and benefits in Section 2(d). No payment
hereunder shall be recognized as additional compensation for purposes of any other employee benefit
plan sponsored by the Company.
3. Term and Disability.
(a) Term.
(i) This Agreement shall commence on the Effective Date and shall continue thereafter until
terminated as hereinafter provided. This Agreement may be terminated by either party at any time
and for any reason on 30 days prior written notice to the other party.
(ii) The Company shall have the right to automatically terminate this Agreement for Cause
upon providing written notice to the Employee. For purposes of this Agreement, “Cause” means the
occurrence of any one or more of the following events: (i) the commission by the Employee of an
act of fraud, embezzlement or willful breach of a fiduciary duty to the Company or an Affiliate
(including the willful unauthorized disclosure of confidential or proprietary material information
of the Company or an Affiliate), (ii) a conviction of the Employee (or a plea of nolo contendere in
lieu thereof) for a felony or a crime involving fraud, dishonesty or moral turpitude, (iii) willful
failure of the Employee to follow the reasonable and lawful written directions of the President of
the Company, Company management, or the Board of Directors, in the case of executive officers of
the Company, other than directions requiring the Employee to permanently relocate his job location
more than Fifty (50) miles from the Company facility at which the Employee presently performs his
job, when such directions are consistent with the Employee’s customary duties and responsibilities
and where such refusal has continued for more than 10 days following written notice; (iv) willful
misconduct as an employee of the Company or an Affiliate which includes the Employee’s failure to
adhere to Company’s ethical code of conduct; (v) gross negligence or willful failure of the
Employee to render services to the Company or an Affiliate in accordance with his or her employment
arrangement, which negligence or failure amounts to a material neglect of his or her duties to the
Company or an Affiliate (except for such failure that results from physical or mental illness);
(vi) recurring and regular use of drugs or alcohol or other substance such that Employee becomes
significantly impaired in the performance of his or her duties; or (vii) material breach of this
Agreement or any other written agreement Employee may have with the Company.
(b) Total and Permanent Disability or Death. In the event of the death of the
Employee, or the Employee’s Total and Permanent Disability (as determined by the Company’s Board of
Directors in its sole discretion), this Agreement shall terminate without any further obligation of
one party to the other except payment to the legal representative of the Employee of his
compensation hereunder to the date of the Employee’s death or the date on which the President has
determined that the Employee has suffered a Total and Permanent Disability. If this Agreement is
terminated as a result of the Employee’s death or Total and Permanent
-4-
Disability, the Employee shall not be entitled to any payments under Section 2(d). For
purposes of this Agreement, the term “Total and Permanent Disability” shall mean a mental or
physical disability, illness or incapacity of the Employee which renders the Employee unable to
perform a substantial portion of his duties as an employee of the Company for a period of three (3)
consecutive months or an aggregate period of four (4) months in any twelve (12) month period or
that renders the Employee unable to earn a livelihood as an employee of a business comparable to
the Company’s business, unless further time is required as a reasonable accommodation under federal
or state law or regulation.
4. Restrictive Covenants.
4.1 Non-Competition. During the Employee’s employment with the Company and for a period of two
(2) years following Employee’s termination of employment for any reason other than at the Company’s
behest without Cause, the Employee shall not, directly or indirectly, engage in any business or
activity, or render any services or provide any advice to, any Person which provides products or
services substantially similar to those products and services manufactured, sold, distributed or
provided by the Company and contemplated being provided by the Company during the term of the
Employee’s employment with the Company, whether as an employee, consultant, partner, principal,
agent, representative, stockholder, director or in any other capacity; provided, however, that
Employee’s ownership of not more than 2% of the stock of any publicly traded corporation shall not
be violation of this Section 4.1.
4.2 Non-Solicitation. During the Employee’s employment with the Company and for a period of
two (2) years following Employee’s termination of employment for any reason other than at the
Company’s behest without Cause, the Employee shall not (except on the Company’s behalf), directly
or indirectly, on his own behalf or on behalf of any other person, firm, partnership, corporation
or other entity, (A) solicit or service the business of any of the Company’s clients, any of the
Company’s former clients which were clients within twelve months prior to the termination of his
employment or any of the prospective clients which were being actively solicited by the Company at
the time of the termination of his employment, or (B) attempt to cause or induce any employee of
the Company to leave the Company.
4.3 Non-Disparagement. Employee agrees to refrain from making any statements or comments of a
defamatory nature to any third party regarding the Company, the Business Unit or any of its
officers, directors, employees, agents, representatives, affiliates, products or services.
4.4 Acknowledgements. The Employee acknowledges and agrees that the restrictions set forth in
this Section 4: (a) are critical and necessary to protect the Company’s legitimate business
interests (including, without limitation, the protection of its confidential or proprietary
information, its good will, and its relationship with its customers, clients, employees, and
consultants); (b) are reasonably drawn to this end with respect to duration, scope and otherwise;
(c) are not unduly burdensome or injurious to the public interest; (d) are supported by adequate
consideration and (e) the terms and provisions of this Article 4 shall inure to the benefit of the
Successor in Interest.
-5-
4.5 Injunctive Relief. The Employee acknowledges and agrees that the Company will have no
adequate remedy at law, and would be irreparably harmed, if the Employee breaches or threatens to
breach any of the provisions of Section 4.1, 4.2 or 4.3. The Employee agrees that the Company
shall be entitled to equitable and/or injunctive relief to prevent any breach or threatened breach
of such Sections, and to specific performance of each of the terms of such Sections in addition to
any other legal or equitable remedies that the Company may have. The Employee further agrees that
the Employee shall not, in any equity proceeding relating to the enforcement of the terms of such
Sections, raise the defense that the Company has an adequate remedy at law. The Employee
acknowledges and agrees that the restricted periods set forth above in Section 4.1 shall be tolled
during any period in which the Employee is in violation of such Section(s) so that the Company is
provided with the full benefit of the restricted period. During the period that the Employee is in
violation of any covenant under this Section 4, the Company shall not be required to continue
making any payment that the Employee is entitled to hereunder until such violation has been
remedied.
4.6 Special Severability. The terms and provisions of this Article 4 are intended to be
separate and divisible provisions and if, for any reason, any one or more of them is held to be
invalid or unenforceable, neither the validity nor the enforceability of any other provision of
this Agreement shall thereby be affected. It is the intention of the parties to this Agreement
that the potential restrictions on the Employee’s future employment imposed by this Article 4 be
reasonable in both duration and geographic scope and in all other respects. If for any reason any
court of competent jurisdiction shall find any provisions of this Article 4 unreasonable in
duration, geographic scope or otherwise, the Employee and the Company agree that the restrictions
and prohibitions contained herein shall be effective to the fullest extent allowed under applicable
law in such jurisdiction.
5. Confidential Information; Employee Work.
(a) Certain Definitions. As used in this Agreement the following terms have the
following meanings:
“Affiliate” means any corporation, partnership, limited liability company or partnership,
association, trust or other organization which, directly or indirectly, controls, is controlled by,
or is under common control with, the Company. For purposes of the preceding sentence, “control”
(including, with correlative meanings, the terms “controlled by” and “under common control with”),
as used with respect to any entity or organization, shall mean the possession, directly or
indirectly, of the power (i) to vote more than 50% of the securities having ordinary voting power
for the election of directors of the controlled entity or organization, or (ii) to direct or cause
the direction of management and policies of the controlled entity or organization, whether through
the ownership of voting securities or by contract or otherwise.
“Confidential Information” means all information concerning or related to the business,
operations, financial condition or prospects of the Company or any of its Affiliates, regardless of
the form in which such information appears and whether or not such information has been reduced to
a tangible form, and specifically includes (i) all information regarding the officers, directors,
employees, equity holders, customers, suppliers, distributors, sales
-6-
representatives and licensees of the Company and its Affiliates, in each case whether past, present
or prospective, including sales and pricing information and procedures, customer lists, and
business and marketing plans; (ii) all inventions, discoveries, trade secrets, processes,
techniques, methods, formulae, ideas, system designs, program materials (including source and
object code and system and user documentation), operating processes, equipment design, product
specifications, and know-how of the Company and its Affiliates and (iii) all financial statements,
audit reports, budgets and business plans or forecasts of the Company and its Affiliates; provided,
that Confidential Information does not include (A) information which is or becomes generally known
to the public through no act or omission of the Employee and (B) information which has been or
hereafter is lawfully obtained by the Employee from a source other than the Company or any of its
Affiliates (or their respective officers, directors, employees, equity holders or agents) so long
as, in the case of information obtained from a third party, such third party was or is not,
directly or indirectly, subject to an obligation of confidentiality owed to the Company or any of
its Affiliates at the time such Confidential Information was or is disclosed to the Employee.
“Employee Work” means all written and graphic materials, computer software, inventions,
discoveries and improvements authored, prepared, conceived or made by the Employee during the term
of his employment with the Company and which are related to the business of the Company.
(b) Confidential Information.
(i) Except as provided in clause (ii) below, the Employee will not disclose or use for the
Employee’s benefit any Confidential Information.
(ii) Notwithstanding clause (i) above, the Employee shall be permitted to disclose
Confidential Information to the extent, but only to the extent, (1) reasonably necessary to perform
the duties hereunder or (2) required by law; provided, that prior to making any disclosure of
Confidential Information required by law, the Employee will notify the Company of the Employee’s
intent to make the disclosure, and the Company will have the right to participate with the Employee
in determining the amount and type of Confidential Information, if any, which must be disclosed in
order to comply with applicable law.
(iii) Promptly after termination of the Employee’s employment with the Company for any
reason, the Employee or his/her personal representative will return to the Company any Confidential
Information which is in tangible form and which is then in the Employee’s possession.
(c) Employee Work. All Employee Work is the sole property of the Company and, to the
extent applicable, is “work made for hire” under and as defined in the Copyright Act of 1976, 17
U.S.C. §1 et seq. The Employee will promptly disclose to the Company all Employee
Work and will execute all such documents and instruments as the Company may reasonably determine
are necessary or desirable in order to give effect to the preceding sentence or to preserve,
protect or enforce the Company’s rights with respect to any Employee Work.
-7-
(d) Cessation of Payments. Without limiting the Company’s rights and remedies
hereunder, at law or in equity, the Employee acknowledges and agrees that the right of the Employee
to receive and retain any payments otherwise due will be suspended and cancelled if and for so long
as the Employee is in breach of any provision of this Section 4. If and when the Employee has
cured any such breach and has tendered to the Company any and all economic benefits directly or
indirectly received or receivable by the Employee arising therefrom, such right will automatically
be reinstated, but only for the remainder of the period, if any, during which such payments are
due.
(e) Employee Affirmation. The Employee acknowledges and agrees that the
restrictions set forth in this Section (i) are critical and necessary to protect the Company’s
legitimate business interests (including, without limitation, the protection of its confidential or
proprietary information, its good will, and its relationship with its customers, clients,
employees, and consultants), (ii) are reasonably drawn to this end with respect to duration, scope
and otherwise, (iii) are not unduly burdensome or injurious to the public interest, (iv) are
supported by adequate consideration and (v) shall inure to the benefit of the Company and its
successors and assigns.
(f) Survival. The provisions of this Section 4 will survive any termination of this
Agreement. If the Employee violates any of the restrictions set forth in this Section 4, the
duration of the restrictions shall be extended for a period of time equal to the period of time in
which the Employee has been in violation.
(g) Damages. The Employee hereby acknowledges and agrees that the claim for the
payment of any damages for breach of the provisions herein contained shall not preclude the Company
from seeking injunctive or such other forms of relief as may be obtained in a court of law or
equity, and that the Company, in lieu of or in addition to the remedy of damages, may seek
injunctive relief prohibiting the Employee from breaching the provisions of this Agreement.
6. Dispute Resolution. Any disagreement or claim (other than a claim for injunctive
relief for violation of Sections 4 or 5 hereof) arising out of or relating to this Agreement (a
“Dispute”), or the breach thereof, or its termination shall be finally settled by arbitration in
Minneapolis, Minnesota pursuant to the rules of the American Arbitration Association regarding
employment disputes. In such instances, it is agreed that the Dispute shall be submitted to final
and binding arbitration by one arbitrator; provided, however, that either party may request that
there be three (3) arbitrators, in which case each party shall select one (1) arbitrator, and the
two (2) arbitrators so selected shall select a third. The Employee hereby irrevocably consents to
the jurisdiction of the state and federal courts located in the State of Minnesota for the purposes
of deciding any claim seeking injunctive relief for any alleged violation of Sections 4 or 5
hereof, and agrees that any judgment rendered by such courts against the Employee may be entered or
executed in any court of competent jurisdiction for enforcement purposes.
7. Return of Company Property. Promptly after termination of the Employee’s
employment hereunder for any reason, the Employee or his personal representative shall return to
the Company all property of the Company then in his possession, including without limitation
-8-
papers, documents, computer disks, keys, credit cards and Confidential Information, and shall
neither make nor retain copies of the same.
8. Notice. All notices and other communications hereunder shall be in writing and
shall be given by hand-delivery to the other parties or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
To the Executive:
|
To the Company: | |
| Possis Medical, Inc. | ||
| Attn: Director of Corporate Services | ||
| 0000 Xxxxxxxxx Xxxxxxxxx XX | ||
| Xxxxxxxxxxx, XX 00000 | ||
| With a cc to: | ||
| MEDRAD, INC. | ||
| 000 Xxxxxx Xxxx Xxxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attn: General Counsel |
or to such other address as any party shall have furnished to the others in writing in accordance
herewith. Notices and communications shall be effective when actually received by the addressee.
9. Severability. Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
10. Miscellaneous. The validity or enforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provision. This Agreement embodies the
entire Agreement between the parties hereto and supersedes any and all prior or contemporaneous,
oral or written understandings, negotiations, or communications on behalf of such parties. This
Agreement may be executed in several counterparts, each of which shall be deemed original, but all
of which together shall constitute one and the same instrument. This Agreement may be delivered by
telefax, and such telefax copy shall be as effective as delivery of a manually executed
counterpart. The waiver by either party of any breach or violation of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach or violation
hereof. This Agreement is executed in and shall be governed by and construed in accordance with
the laws of Minnesota without giving effect to any conflict of laws provision. This Agreement
shall be amended only by written agreement of both parties hereto. This Agreement shall inure to
the benefit of the Company and its successors and assigns. The parties waive the application of
any law, regulation, holding or rule of construction providing that ambiguities in the Agreement
will be construed against the party drafting such agreement. The language used in this Agreement
shall be deemed to be the language chosen by the parties to
-9-
express their mutual agreement, and this Agreement shall not be deemed to have been prepared by any
single party.
11. Effectiveness. This Agreement shall become effective on the Effective Date. To
the extent that the Agreement and Plan of Merger is terminated and the Acceptance Date (as defined
in the Agreement and Plan of Merger) does not occur, Employee shall have no rights under this
Agreement and this Agreement shall be void and of no effect.
| EMPLOYEE | POSSIS MEDICAL, INC. | |||
/s/ XXXXX X. XXXXXXXX
|
By: | /s/ XXXXXX X. XXXXXXX | ||
[Employee Name]
|
Name: | Xxxxxx X. Xxxxxxx | ||
| Title: | Chairman, President and Chief Executive Officer |
|||
-10-
